Pierce v. Astrue
MEMORANDUM Opinion and Order Signed by the Honorable Jeffrey Cole on 1/14/2013: Mailed notice(tlp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
TERRY A. PIERCE,
MICHAEL J. ASTRUE, Commissioner
of Social Security,
No. 11 C 4157
Magistrate Judge Cole
MEMORANDUM OPINION AND ORDER
The plaintiff, Terry A. Pierce, seeks review of the final decision of the Commissioner
("Commissioner") of the Social Security Administration ("Agency") denying her application for
Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act"), 42 U.S.C.
§§ 423(d)(2), and 1382c(a)(3)(A).
Ms. Pierce asks the court to reverse and remand the
Commissioner's decision, while the Commissioner seeks an order affirming the decision.
Ms. Pierce applied for DIB on June 21, 2007, alleging that she has been disabled since March
13, 2006, due to a lower lumbar injury (Administrative Record (“R”) 17). Her application was
denied initially on November 21, 2007, and upon reconsideration on March 7, 2008. (R. 14). Ms.
Pierce then filed a timely request for hearing in pursuit of her claim on April 7, 2008. (R. 14).
An administrative law judge (“ALJ”) convened a hearing on July 16, 2009, at which Ms.
Pierce, represented by counsel, appeared and testified. (R. 32-75). At this hearing, Pamela Tucker
testified as a vocational expert. (R. 75-85). On August 14, 2009, the ALJ issued an unfavorable
decision, denying Ms. Pierce’s application for DIB. (R. 11-23). This became the Commissioner’s
final decision when the Appeals Council denied Ms. Pierce’s request for review on April 18, 2011.
(R. 1). Ms. Pierce has appealed that decision to the federal district court under 42 U.S.C. § 405(g),
and the parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. §
THE RECORD EVIDENCE
The Vocational Evidence
Ms. Pierce was born on July 7, 1954, making her fifty-five years old at the time of the ALJ’s
decision. (R. 32-33). She lived in a house she was renting. (R. 33). She completed high school, but
has no other vocational or specialized training. (R. 33). Ms. Pierce has worked part-time for a school
lunchroom program as a cashier since January 2007. (R. 39). She only works during the school year
for about four to five hours a day. (R. 34-36). Prior to that, she held positions as a cashier and in
customer service with other employers. (R. 39-46).
The Medical Evidence
Ms. Pierce contends that she is eligible for disability and DIB due to a lower lumbar injury,
which prevents her from being able to sit, stand, lift or bend for long periods of time. (R. 17). She
claims that the injury hinders her sleep and causes numbness in her legs. (R. 17). As a result of these
symptoms, she alleges as of March 13, 2006, she has been unable to work longer than 4 to 5 hours
without pain. (R. 17).
Ms. Pierce originally injured her back in October 2004 while she was working as a waitress.
(R. 17, 44). She hurt it when she was moving full cases of drinking glasses from one rack to
another. (R. 44-45).
Her employer paid for her treatment, which included chiropractic manipulations, cold and
hot pads, and pain medication. (R. 17-18, 46-48). In addition to seeing a chiropractor, Ms. Pierce
also underwent physical therapy. (R. 18, 47). At first her back improved and she returned to work.
(R. 18, 53, 227). Her doctor’s notes indicated that she could ambulate and heel and toe walk without
any difficulty, and that her range of motion in her spine was completely normal. (R. 18, 227). An
epidural steroid injection was not ordered because Ms. Pierce seemed to be improving. (R. 18, 227).
Surgery was not recommended. (R. 18, 47, 227). During this time, the doctor limited Ms. Pierce to
lifting no more than 40 pounds and stated she should limit repeated bending, stooping, or twisting
if possible. (R. 18, 48, 227). The doctor also recommended that Ms. Pierce begin a work hardening
program. (R. 18, 227).
Ms. Pierce returned to work because her back was improving, but she testified that her
condition quickly deteriorated and she could no longer sit or stand comfortably. (R. 18, 54). She
therefore quit her job in March 2006. (R. 18, 53-54). She discontinued treatment because of lack of
insurance but continued to take pain medication and do home therapy. (R. 48)
In April of 2006, EMG results were completely normal, as there was no electrodiagnostic
evidence of any neuropathy or radiculopathy. (R. 19, 255-59). An MRI was also taken of Ms.
Pierce’s back that noted a small disc protrusion at L5-S1 but no neural compression. (R. 19, 328).
There was also mild disc bulging at the T11-12, L2-L3, and L4-L5 levels, with spondylosis at T1112 and L2-L3. (R. 19, 328). The physician indicated that the claimant’s back impairment caused
more than 50% reduction in her capacity to bend, stand, and stoop. (R. 19, 330). The treating
physical indicated that she was being treated for a lumbar disc strain. (R. 19, 331). Ms. Pierce did
not return to work. (R. 19, 331).
In November of 2007, Ms. Pierce underwent a consultative physical examination in
connection with her application for benefits. Dr. Chukwuemeka Ezike concluded that she was able
to walk more than 50 feet without any support, and that her range of motion in both her cervical and
lumbar spine was completely normal with only mild pain. (R. 19, 275). Her straight leg test was
negative bilaterally, she was able to toe/heel walk, and she was able to get on and off of the
examination table without any noticeable difficulty. (R. 19, 276). Furthermore, Ms. Pierce’s Rombeg
test was negative and there were no neurological deficits of any kind. (R. 19, 276).
In February 2008, Ms. Pierce had a physical therapy evaluation. Lumbar range of motion
was 90% forward bending and right side bending and 50% left side bending. (R. 19, 344). The
physician noted there was a slight restriction in mid-lower lumbar passive mobility, and negative
straight leg raising tests bilaterally. (R. 19, 344).
The examination notes of April 2008 briefly mentioned Ms. Pierce’s lower back pain but
stated that she was still on pain medication. (R. 20, 297). The exam notes from June 2008 stated that
she had back pain only intermittently. (R. 20, 301). In July 2008, it was noted that the claimant’s
back pain improved with the use of pain medication, specifically Amitryptyline. (R. 20, 303).
Additionally, in August 2008, Ms. Pierce was actually advised by her treating physician to exercise
for 20-30 minutes, three times a week. (R. 20, 308). Through June of 2009, there were several more
minimal and unremarkable findings and recommendations that were made. (R. 20, 309-326).
The Administrative Hearing Testimony
Ms. Pierce’s Testimony
Ms. Pierce testified that she has a high school education and presently worked as a cashier
at a school lunch program. (R. 33). She started working at the school around January 2007. (R. 39).
She testified that she starts at 9 o’clock in the morning and usually works until 1:30 in the afternoon.
(R. 35). She works part time for about four to five hours a day, although there are some days where
she stays longer by about an hour or hour and a half. (R. 34, 36, 61). During the school year, she
works Monday through Friday except for the days school is not in session. (R. 34, 58). She does not
work during summer break. (R. 34).
She testified that in the morning she makes the sandwich wraps until a little after 10 o’clock
when she then opens the serving line. (R. 37). She testified that there is no heavy lifting involved
in any of her duties. (R. 38). Although she stated she is able to lift 15-20 pounds comfortably, the
heaviest item she has to lift is a gallon of mayonnaise, which she thought only weighed “a couple
of pounds maybe.” (R. 38, 61). When asked about how much weight she has to lift at her job, she
stated that there is nothing at her current place of employment that would require her to lift more
than 20 pounds and that she does not have to carry any weight. (R. 61).
At her job she has the freedom to stand and sit as needed. (R. 57). She testified that her
employer provided a stool for her in an effort to accommodate her back pain. (R. 58). Additionally,
she stated that there is a milk crate underneath the register where she stands so that she can alternate
her legs and shift her weight. (R. 57). Her accommodations are unique to her needs because the other
cashier at the end of the cafeteria does not have the specific accommodations that Ms. Pierce has
been provided. (R. 58). Ms. Pierce testified that she does a little bit more sitting than standing or
walking, and that standing gives her the most trouble because her legs go numb. (R. 59-60). She
stated that as the day goes on it becomes more difficult for her to stand. (R. 59).
She testified that after a “rough” day she will be sore and “crunched over” by the time she
gets home. (R. 62). She usually ends up taking a warm shower and putting ice packs on her body
in order to remedy the pain. (R. 62). She said that working at her part-time job is as much as she
can handle without hurting herself again, and believes that she would not be able to do the same
work for eight hours, five days a week. (R. 75) Ms. Pierce also testified that she had no other
conditions that kept her from working. (R. 53).
In regards to her daily activities, Ms. Pierce stated that her injury does not prevent her from
performing basic self-care, although it is done at a slower pace. (R. 205). Furthermore, she
completes her housework for much of the day. (R. 51). She also visits with her children and
grandchildren, often baby sitting her grandchildren who ranged in ages from one to seven at the time
of testimony. (R. 51-52). For recreation, she watches television and crochets. (R. 52). Her traveling
is limited, but she flew to Arkansas to visit with her son. (R. 52). She stated that she does perform
exercise for her back and has been instructed to walk twenty to thirty minutes three times a week.
(R. 68). The exercises consist of Ms. Pierce laying on her bed, lifting up her legs and bringing them
to her chest and then moving them from side to side. (R. 68). She also incorporates a medicine ball
into her exercises. (R. 68).
Ms. Pierce testified that she injured herself in October of 2004. (R. 44). As a result of this
injury she received Workers’ Compensation benefits, which consisted of a cash settlement and
physical treatment. (R. 46). At the time surgery was not recommended. (R. 47). She was, however,
discharged with certain restrictions. (R. 47). She claimed the doctor limited her to working no more
than four to five hours a day, no heavy lifting and to alternate standing and sitting. (R. 47). She was
also prescribed pain medication and instructed to continue with home therapy, which she still
continues to do. (R. 47-49). Ms. Pierce testified that her back pain did improve after she was
discharged. (R. 53). Ms. Pierce stated that she did not go back for further physical treatment because
she did not have health insurance nor the adequate finances to do so. (R. 48). She testified that she
continued to take the pain medication that was prescribed to her by her doctor, in addition to
medication that she received from a friend. (R. 49-51). Currently, she takes Naprosyn, Ibuprofen,
and Ultrams for the pain and Amitriptyline to help her sleep. (R. 49-51). She testified that she
attempts to limit the intake of her pain medication to only times when she is “going to be doing
something that’s going to really irritate [her] back.” (R. 50). However, she testified that she ended
up taking it every day when she worked in the school lunchroom and even when she was not
working. (R. 51).
Ms. Pierce stated that the condition of her back worsened when she attempted to work at the
Victorian Village in their small convenience store, which sold personal items and gifts. (R. 54). She
described her job duties to consist of waiting on customers and running the cash register. She stated
that her “back blew out again” and that she “couldn’t sit or walk hardly.” (R. 54). She left that job
in March 2006 and collected short-term disability for a while. (R. 54). She then began working at
the school around Christmastime in December 2006 or January 2007. (R. 55). Around that same time
she also obtained a job at Subway. She attempted to work at Subway at night and on the weekends
because she worked at the school during the day. (R. 56). After about three months at Subway she
left because she felt that the “Subway job consisted of a lot of things that [she] thought [she] could
do and [she] found out [she] couldn’t do and it was getting [her] back sore again.” (R. 56).
Ms. Pierce explained that reinjuring her back caused a financial hardship upon her. (R. 54).
“I was losing everything. I had lost my place I lived in. I lost my van. I had no finances
whatsoever.” (R. 54-55). She testified that her son decided that she needed to move down to Benton,
Arkansas, to live with him because of her financial state. (R. 55). She was only there for a month,
however, before she moved back to Joliet and stayed with a friend and his family from August 2006
until February 2007. (R. 55). At that point, she was able to find a place to live on her own. (R. 55).
She currently rents a small house, but she has to borrow money from people, in addition to receiving
help through the township, in order to pay for the rent. (R. 34, 55).
The Vocational Expert’s Testimony
Ms. Tucker then testified as a vocational expert. (R. 75-85). In response to the ALJ’s
hypothetical, she testified that an individual of advanced age, and who is limited to light work with
only occasional bending, stooping and twisting would still be able to perform Ms. Pierce’s past work
of a salesclerk, cashier, and a waitress. (R. 77-78). Each of these jobs was categorized as semiskilled and light work, and they had a specific vocational preparation (SVP) code of three.1 (R. 7778). However, Ms. Tucker testified that if the individual would need to alternate between sitting and
standing, they would not be able to perform Ms. Pierce past work. (R. 78).
Ms. Tucker testified that there are cashier cafeteria positions that allow for the sit/stand
option as Ms. Pierce performed it. (R. 78). Ms. Tucker explained that Ms. Piece did not just sit at
the cash register. (R. 79). She noted that Ms. Pierce cooked food, served the food, in addition to
operating the cash register, which allowed for the sit/stand option. (R. 79). She stated that there
The SVP is an estimate of the amount of time it takes to learn a job. A level 3 position takes
one to three months to learn. http://www.onetonline.org/help/online/svp.
would normally be 40,000 other cashier positions that the individual could perform, but 12,000 that
would allow for a sit/stand option. (R. 79). Ms. Tucker pointed out that this position would only be
a SVP two. (R. 80). The ALJ then asked if there would be any work in the cashier field that Ms.
Pierce could do with those restrictions with an SVP three or higher. (R. 80). Ms. Tucker responded
that when looking at positions available with a SVP three there would be approximately 4,000
cashier-checker positions, which reflect the skills gained in previous employment and take into
account the sit/stand option. (R. 82). Additionally, Ms. Tucker testified that there are approximately
900 jobs in the region as an information clerk with a SVP four, which would utilize the customer
service skills that were gained in previous employment and take into account the sit/stand option.
THE ALJ’S DECISION
The ALJ found that Ms. Pierce’s back impairments “likely do impact her ability to perform
basic work activities,” but “they do not preclude the performance of work altogether.” (R. 21). The
ALJ noted that although the medical findings indicated that Ms. Pierce had been consistent in her
complaints regarding her symptoms, the ALJ did not believe the findings are so limiting to prevent
her from performing work activities on a regular and continuing basis. (R. 19). The ALJ held that
Ms. Pierce does not have an impairment or combination of impairments that meets or equals one of
the listed impairments in 20 C.F.R. Part 404 Subpart P, Appendix 1, giving particular consideration
to listing 1.04 for disorders of the spine. (R. 17). The ALJ took into account each objective medical
finding and ruled that, although Ms. Pierce’s treating physicians made some references that her back
pain would prevent her from returning to work, there was very little objective support for this
conclusion. (R. 20). The ALJ stated that the physicians relied on the subjective complaints of Ms.
Pierce rather than the objectively quantifiable medical findings. (R. 20). The ALJ concluded that
Ms. Pierce exhibited only minor degenerative changes in her spine, but that she maintained a wide
range of motion. (R. 20). In April of 2006, Ms. Pierce underwent an EMG and the results came
back completely normal. (R. 19). An MRI of her spine did note a small disc protrusion but there
was no neural compression. (R. 19). In arriving at these findings, the ALJ gave little weight to the
opinions of Ms. Pierce’s treating physicians. (R. 20).
The ALJ further supported his reasoning that Ms. Pierce’s limitations are not as severe as
she alleges by looking at the findings of her consultative exams. (R. 20). In November 2007 the
ALJ stated that the examination’s findings were “unremarkable.” Ms. Pierce had full range of
motion and only mild pain. Her physician noted that she could lift up to 20 pounds. (R. 19). In
February 2008, the physician concluded that Ms. Pierce had 90% forward bending and right side
bending and 50% for the left side bending. The physician stated there to be only a “slight
restriction.” (R. 19). The ALJ noted that in April 2008 the exam notes briefly mentioned Ms.
Pierce’s back pain.
In June 2008, the exam notes that she only has back pain
“intermittently.” (R. 20). Also in July 2008, it was noted that her back pain was actually improving
because of her pain medication. (R. 20). Additionally in August 2008, Ms. Pierce was actually
advised to exercise for 20-30 minutes, three times a week. (R. 20). The ALJ stated that the fact that
Ms. Pierce’s treating physician believed that she was capable of such exercise was a “further
indication” that her pain was not disabling. (R. 20). The ALJ stated that there were other “similar
minimal and unremarkable findings” made by treating doctors through June 2009. (R. 20).
Ultimately, the ALJ found that Ms. Pierce has the residual functional capacity to perform light work
as defined in 20 C.F.R. 404.1567(a) and 416.967(a), except she can only occasionally bend, stoop,
or twist and must have the option to sit or stand at will. (R. 17).
Moreover, the ALJ held that the fact that Ms. Pierce is even able to continue doing her
current job is demonstrative of an ability to engage in greater exertion that she alleges she is capable.
(R. 20). The ALJ reasoned that although Ms. Pierce is only scheduled to work for four to five hours
a day, she often works longer. (R. 20). She has been given the sit or stand option at work, and the
ALJ held that if she were given this option in any other job that she could perform, the objective
record demonstrates that she would be able to work on a regular and continuing basis. (R. 20). The
ALJ also noted that Ms. Pierce regularly does exercises for her back. (R. 20). She was allowed to
lift up to 40 pounds but told that she could not go to work. (R. 20). The ALJ held that these facts
demonstrate that Ms. Pierce’s allegations of disabling pain were not credible. (R. 20).
The ALJ also took into account an assessment conducted by a State agency disability
examiner in November 2007, which held that Ms. Pierce was capable of performing a full range of
work at the medium exertional level. (R. 20). However, the ALJ did not give this much weight
because of additional evidence that was submitted after this assessment, which indicated that Ms.
Pierce was more limited than the examiner concluded. (R. 20).
The ALJ ruled that Ms. Pierce is unable to perform past relevant work. (R. 21). He
mentioned that the vocational expert testified that although Ms. Pierce has the capacity to perform
work at a light level, her past relevant work would not allow for an option to sit or stand. (R. 21).
Therefore, her past work exceeds her residual functional capacity. (R. 21). However, the ALJ
recognized that Ms. Pierce acquired work skills from her past positions. (R. 21). The ALJ noted that
she would be able to perform as a cashier-checker or an information clerk. (R. 22). Both these
positions utilize the customer service skills gained in previous employment. (R. 22). Further, the
cashier-checker position reflects the cashier skills gained from previous jobs. (R. 22). The ALJ
acknowledged that Ms. Pierce would not be able to perform the full range of light work because of
her additional limitations. (R. 22). However, regardless of these limitations, the ALJ reasoned that
the Ms. Pierce is capable of making successful adjustments to work that exists. (R. 22). Ultimately,
when considering these factors and taking into account Ms. Pierce’s additional limitations, the ALJ
ruled that there are jobs existing in significant numbers in the regional economy, and by extension,
the national economy that Ms. Pierce has the ability to perform. (R. 22). Thus, the ALJ concluded
that as a result Ms. Pierce was not disabled under the Act. (R. 22).
The Standards Of Review
We review the ALJ’s decision directly, but we play an “extremely limited” role. Simila v.
Astrue, 573 F.3d 503, 513-14 (7th Cir. 2009); Adams v. Astrue, 2012 WL 3065299 (N.D. Ill. 2012).
“We do not actually review whether [the claimant] is disabled, but whether the Secretary’s finding
of not disabled is supported by substantial evidence.” Lee v. Sullivan, 988 F.2d 789, 792 (7th Cir.
1993). If it is, the court must affirm the decision. 42 U.S.C. § 405(g). Substantial evidence is
“more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); Schaaf v.
Astrue, 602 F.3d 869, 874 (7th Cir. 2010).
In these cases, the standard of review is deferential and the court may not reweigh the
evidence, make independent credibility determinations, or substitute its judgment for that of the
ALJ. Weatherbee v. Astrue, 649 F.3d 565,568 (7th Cir. 2008); Terry v. Astrue, 580 F.3d 471, 475
(7th Cir. 2009); Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000). Where conflicts arise, it is the
ALJ’s responsibility to resolve those conflicts. Simila, 573 F.3d at 513-14. Even if reasonable
minds may differ as to whether the plaintiff is disabled, the court must affirm the ALJ’s decision if
it is supported by substantial evidence. Books v. Chater, 91 F.3d 972, 978 (7th Cir. 1996).
However, legal conclusions are not entitled to such deference and, if the ALJ commits an error of
law, the decision must be reversed. Schmidt v. Astrue, 496 F.3d 833, 841 (7th Cir. 2007).
While the standard of review is deferential, the court cannot “rubber stamp” the
Commissioner’s decision. Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir. 2002). Although the ALJ
need not address every piece of evidence, the ALJ cannot limit discussion to only that evidence that
supports his ultimate conclusion. Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994). The ALJ’s
decision must allow the court to assess the validity of his findings and afford the claimant a
meaningful judicial review. Hopgood ex rel. L.G. v. Astrue, 578 F.3d 696,698 (7th Cir. 1994). The
ALJ must “minimally articulate” the reasons for his ultimate conclusion by building a “logical
bridge” between the evidence and the ALJ’s conclusion. Zurawski v. Halter, 245 F.3d 881 (7th Cir.
2001); Sarchet v. Charter, 78 F.3d 305, 307 (7th Cir. 1996). This is a “lax” standard. Elder v.
Astrue, 529 F.3d 408, 415 (7th Cir. 2008).
Five-Step Sequential Analysis
The Social Security Regulations provide a five-step sequential inquiry to determine whether
a plaintiff is disabled:
is the plaintiff currently unemployed;
does the plaintiff have a severe impairment;
does the plaintiff have an impairment that meets or equals one of the impairments
listed as disabling in the Commissioner’s regulations;
is the plaintiff unable to perform his past relevant work; and
is the plaintiff unable to perform any other work in the national economy?
20 C.F.R. § 404.1520; Simila, 573 F.3d at 512-13; Briscoe ex rel Taylor v. Barnhart, 425 F.3d 345,
351-52 (7th Cir. 2005). An affirmative answer leads either to the next step or, on steps three and
five, to a finding that the claimant is disabled. 20 C.F.R. § 416.920; Briscoe, 425 F.3d at 352; Stein
v. Sullivan, 892 F.2d 43, 44 (7th Cir. 1990). A negative answer at any point, other than step three,
stops the inquiry and leads to a determination that the claimant is not disabled. 20 C.F.R. §
404.1520; Stein, 892 F.2d at 44. The claimant bears the burden of proof through step four; if it is
met, the burden shifts at step five to the Commissioner, who must then present evidence establishing
that the claimant possesses the residual functional capacity to perform work that exists in a
significant quantity in the national economy. Weatherbee, 649 F.3d at569; Briscoe, 425 F.3d at 352.
Ms. Pierce advances four arguments for reversal or remand. First, she argues that the ALJ
failed to identify support in the record for his finding that she could perform the physical
requirements of light work on a full-time, continuous basis. Second, she contends that there were
numerous factual and legal errors in the ALJ’s credibility assessment. Third, Ms. Pierce claims the
ALJ erred by not mentioning or assessing the impact of Ms. Pierce’s obesity in contravention of
Social Security Ruling 02-1p. Finally, Ms. Pierce submits that the ALJ did not properly weigh the
opinion evidence from treating source, Dr. Duarte, in accordance with the Social Security
Administration’s regulations. (See Plaintiff’s Brief in Support of Reversing the Decision of the
Commissioner of Social Security, 1)(“Plaintiff’s Brief”).
Ms. Pierce’s contention that the ALJ did not put forth record support for the finding that she
could perform light work on a continuous basis (Plaintiff’s Brief, at 6-7) is unpersuasive.
The residual functional capacity (RFC) assessment is a consideration of the tasks the
claimant can physically accomplish in order to determine the level of work that can be performed.
20 C.F.R. § 404.1545(a)(1); Berger v. Astrue, 516 F.3d 538, 544 (7th Cir. 2008). When reviewing
the ALJ’s RFC assessment of the claimant, the reviewing court does not reweigh the evidence or
substitute its own analysis for the ALJ’s. Id.; Terry v. Astrue, 580 F.3d 471, 475 (7th Cir. 2009).
The ALJ’s finding will be affirmed when there is substantial evidence to support that decision.
Schmidt v. Astrue, 496 F.3d 833, 841 (7th Cir. 2007). “Substantial evidence” must be more than a
mere scintilla but it does not need to be a preponderance. Id. at 841-42. In the ALJ’s decision, it
need not elaborate in intricate detail the evaluation and determination of every item in the record,
but only so much as to allow a reviewing court to “trace the path of the ALJ’s reasoning.” Rohan
v. Chater, 98 F.3d 966, 971 (7th Cir. 1996). Here, the ALJ did provide sufficient reasoning for the
reviewing court to “trace the path of the ALJ’s reasoning.” Id.
Ms. Pierce relies on Scott v. Astrue, 647 F.3d 734(7th Cir. 2011), which held that the ALJ
failed to build the requisite “logical bridge” between the evidence and its holding. Plaintiff’s Brief,
at 6. That court reasoned that the ALJ simply said her conclusion is based on a doctor’s examination,
but failed to state why she relied on the doctor’s examination. Scott, 647 F.3d at 740. That court
noted that nothing in the doctor’s examination supports the plaintiff’s ability to lift 20 pounds. Id.
Essentially, the ALJ did not identify any medical evidence to substantiate her conclusion that the
plaintiff is capable of meeting those physical requirements. Id.
However, unlike Scott, the ALJ in this case did point out specific medical evidence to
support his conclusion that Ms. Pierce can perform light work on a continuing basis. The ALJ
recognized that Ms. Pierce’s treating physician made reference that her back pain would prevent her
from returning to work, but the ALJ reasoned that there was little objective support for this
conclusion. (R. 19-20). A treating physician’s opinion about the nature of the claimant’s injuries
receives controlling weight only when it is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques” and is “consistent with substantial evidence in the record.” 20
C.F.R. § 404.1527(d)(2); Schmidt v. Astrue, 496 F.3d 833, 842 (7th Cir. 2007); Skarbek v. Barnhart,
390 F.3d 500, 503 (7th Cir. 2004). The ALJ noted that Ms. Pierce still had a wide range of motion
and that although she had minor degenerative changes in her spine, she was not suffering from a
more severe pain-causing disorder such as neuropathy or radiculopathy. (R. 20). The treating
physician’s opinion may also be unreliable if the physician is sympathetic with the claimant and thus
“too quickly find[s] disability.” Ketelboeter v. Astrue, 530 F.3d 620, 625 (7th Cir. 2008); Schmidt,
496 F.3d at 842. The ALJ stated that the treating physician relied too much on Ms. Pierce’s
subjective complaints and not enough on the objective medical evidence. (R. 20). See Filus v.
Astrue, 694 F.3d 863, 868 (7th Cir. 2012)(“ALJs may discount medical opinions based solely on the
patient's subjective complaints . . . .”); Ketelboeter, 550 F.3d at 625 (if the treating physician’s
opinions appear to be based on the claimant’s subjective complaints, the ALJ may discount it).
The ALJ demonstrated through specific examination notes why he did not believe Ms.
Pierce’s symptoms are so limiting as to prevent her from performing basic work actives on a regular
and continuing basis. (R. 19). In April 2008 the examination note only briefly mentioned Ms.
Pierce’s lower back pain. (R. 20). Furthermore, in June 2008 the exam notes state that her back pain
is only intermittent, and in July 2008 Ms. Pierce’s back pain had actually improved with the use of
Amitryptyline. (R. 20). Additionally, in August 2008 Ms. Pierce was advised to exercise 20-30
minutes at a time, three times a week. (R. 20). The ALJ noted that several other unremarkable
findings were made all the way through June of 2009. (R. 20). An ALJ is entitled to find a claimant
has exaggerated her limitations when the objective medical evidence fails to support the extent of
her complaints. McKinzey v. Astrue, 641 F.3d 884, 891 (7th Cir. 2011); Jones v. Astrue, 623 F.3d
1155, 1161 (7th Cir. 2010). The ALJ also reasoned that the treating physician’s recommendation
that Ms. Pierce engage in exercise was an indication that her back pain is not disabling, and the
treating physicians finding that she could not return to work is unreliable. (R. 20).
Moreover, the ALJ also took into account Ms. Pierce’s ability to continue working in the
school cafeteria. (R. 20). The ALJ reasoned that she has the “ability to engage in greater exertion
than stated in her subjective allegations.” (R. 20). The ALJ also noted that Ms. Pierce often ends
up working longer than four to five hours, tending to support a finding that Ms. Pierce could work
on a full-time basis. Additionally, at her job she has the option to sit or stand, which the ALJ
reasoned that if she is given this option at another job she could perform work on a regular and
continuing basis. While employment is “not proof positive” that someone is not disabled, Wilder
v. Chater, 64 F.3d 335, 338 (7th Cir. 1995), the ALJ did not rely on Ms. Pierce’s ability to work as
exclusive support for his credibility finding. He combined it with the objective medical evidence.
Therefore, contrary to Ms. Pierce’s allegations, the ALJ properly explained his finding that
she could perform light work on a continuous basis. His assessment reveals that, although Ms.
Pierce’s symptoms may be limiting, they are not so as to prevent her from performing basic work
activities on a regular basis. (R. 19).
Ms. Pierce’s second contention is that the ALJ’s credibility determination was against policy
and case law. She argues that the ALJ merely stated in conclusory fashion that Ms. Pierce was not
credible. (Plaintiff’s Brief pg. 8). Ms. Pierce is correct that the ALJ “must make a credibility
determination of a plaintiff’s testimony regarding symptoms” in accord with 20 C.F.R. §§ 404.1529,
and from the record, that is precisely what the ALJ did in concluding that Ms. Pierce’s claimed
degree of limitation was not credible. (Plaintiff’s Brief, pg. 8).
The ALJ is not bound to give credit to a complainant’s complaints if they clash with other
objective medical evidence in the record or the credibility is otherwise called into question. Arnold
v. Barnhart, 473 F.3d 816, 823 (7th Cir. 2007). When taking into account the appropriate evidence,
including objective medical reports and self-reports, the ALJ is looking for discrepancies between
such evidence in order to determine if the complainant is exaggerating her ailments. McKinzey , 641
F.3d at 891; Jones, 623 F.3d at 1161; Getch v. Astrue, 539 F.3d 473, 483 (7th Cir. 2007). .
A reviewing court lacks direct access to witnesses, the trier of fact’s immersion in the case
as a whole, and the specialized tribunal’s experience with the type of case under review. See
Carradine v. Barnhart, 360 F.3d 751, 753 (7th Cir. 2004). Because of the ALJ’s advantages in these
areas, his credibility determination is entitled to special deference. Castile v. Astrue, 617 F.3d 923,
929 (7th Cir. 2010); Briscoe ex rel Taylor v. Barnhart, 425 F.3d 345, 354 (7th Cir. 2005); Jones v.
Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010). The ALJ’s determination can be reversed only if it is
“patently wrong.” Jones v. Astrue, 623 F.3d 1155, 1162 (7th Cir. 2010). Demonstrating that the
ALJ’s credibility determination is patently wrong is a “high burden.” Turner v. Astrue, 390 Fed.
Appx. 581, 587 (7th Cir. 2010). To carry that burden, a claimant must demonstrate that the
determination lacks any explanation or support. Jones, 623 F.3d at 1160-62.
In making judgments about the veracity of a claimant’s statements about his or her
symptoms, the ALJ, in addition to considering the objective medical evidence, should consider the
following in totality: (1) the claimant’s daily activities; (2) the location, duration, frequency, and
intensity of the claimant’s pain or other symptoms; (4) the type, dosage, effectiveness and side effect
of any medication that the claimant takes or has taken to alleviate pain or other symptoms; (5)
treatment, other than medication, the claimant receives or has received for relief of pain or other
symptoms; (6) any measures other than treatment the claimant uses or has used to relieve pain or
other symptoms; and (7) any other factors concerning the claimant’s functional limitations and
restrictions due to pain or other symptoms. 20 C.F.R. § 404.1529(c)(3); Knight v. Chater, 55 F.3d
309, 314 (7th Cir. 1995); Adams v. Astrue, 2012 WL 3065299, *8 (N.D. Ill. 2012).
Ms. Pierce argues that the ALJ employed a credibility template that the Seventh Circuit has
repeatedly criticized as “meaningless,” Parker v. Astrue, 597 F.3d 920, 921-22 (7th Cir. 2010),
“unhelpful,” Shauger v. Astrue, 675 F.3d 690, 696-97 (7th Cir. 2012), and “opaque.” Bjornson v.
Astrue, 671 F.3d 640, 644-45 (7th Cir. 2012). The court explained that it backwardly “implies that
the ability to work is determined first and is then used to determine the claimant’s credibility.”
Bjornson, 671 F.3d at 645-46.
Use of this “template,” unfortunately and inexplicably continues to be seen in decisions of
ALJs. But its use, while insufficient to support a credibility finding, does not make a credibility
determination invalid. Richison v. Astrue, 2012 WL 377674, *3 (7th Cir. 2012); Adams v. Astrue,
2012 WL 3065299, *9 (N.D. Ill. 2012). The failure to support a credibility determination with
explanation and evidence from the record does. Punzio v. Astrue, 630 F.3d 704, 709 (7th Cir. 2011).
Here, the ALJ however, went beyond the template and carefully explained how Ms. Pierce’s claimed
“allegations of disabling pain are not entirely credible.” (R. 20).
The ALJ reasoned that the objective medical findings “support the finding that the claimant’s
limitations are not as intense as she alleges.” (R. 20). The ALJ pointed out that the examination
notes from April 2008 only briefly mention that Ms. Pierce has lower back pain, and the
examination notes of June 2008 state that she only has pain intermittently. (R. 20). It was noted in
July 2008 that her back pain was improving with the use of Amitryptyline. (R. 20). The ALJ noted
that there were similar “unremarkable findings and recommendations” made by her treating
physician all the way through June of 2009. (R. 20). He also took the fact that Ms. Pierce’s treating
physicians believed she was capable of exercising as an indication that her pain was not disabling.
(R. 20). The ALJ concluded that the treating physicians were relying too heavily on Ms. Pierce’s
subjective complaints rather than allowing for the objective medial findings to demonstrate the
severity of her claim. (R. 20). That’s a valid line of reasoning. Filus, 694 F.3d at 868; Ketelboeter,
550 F.3d at 625 See supra.
The ALJ reasoned that, at most, Ms. Pierce suffered from minor degenerative changes in her
spine, but recognized that she has maintained a relatively wide range of motion. (R. 20). Ms. Pierce
is not suffering from a more severe pain-causing disorder, such as neuropathy or radiculopathy. (R.
20). These objective medical findings confirmed that the limitations Ms. Pierce claimed were not
as acute as she alleges. (R. 20). See Jones, 623 F.3d at 1161 (holding that the discrepancy in
objective medical evidence and subjective complaints showed that the claimant was exaggerating
Furthermore, Ms. Pierce currently performs exercises for her back. She lies on her bed, lifts
her legs up to her chest and then moves them side-to-side. (R. 20). She usually uses a weighted
gravity ball to assist with the exercises as well. (R. 20). Along with the foregoing, her ability to
complete these exercises demonstrated to the ALJ that her allegations of disabling pain were not
reliable. (R. 20). See Elder v. Astrue, 529 F.3d 408, 414 (7th Cir. 2008) ( ALJ provided valid
reasoning for his adverse decision which included the fact that the claimant participated in aquaticexercise classes and regular walking throughout the week).
Although, the ALJ’s decision may contain some boilerplate language and it is not entirely
perfect, it is still not “patently wrong.” See Kittleson v. Astrue, 363 Fed. Appx. 553, 557 (7th
Cir.2010)(“The ALJ's adverse credibility finding was not perfect. But it was also not ‘patently
wrong.’”); Scheck, 357 F.3d at 703 (“The credibility determinations of an ALJ are entitled to special
deference and we see no reason to overturn her findings.”). The ALJ reviewed Ms. Pierce’s
testimony and compared her complaints with the objective medical evidence in the record. He
properly found that Ms. Pierce’s claimed limitations were inconsistent with the medical evidence
and her daily activities. The ALJ factored in Ms. Pierce medication and other treatments, such as
her at-home exercises. The conclusion that the ALJ arrived at was well founded and his
explanations were given. Consequently, it ought not be disturbed.
Ms. Pierce further criticizes the ALJ for failing to consider her obesity. Plaintiff’s Brief, pg.
2, 13-14). Social Security Ruling 02-1p states that obesity should be used in determining whether
the claimant’s impairments meet the requirements of the Commissioner’s regulations. SSR 02-1p.
However, even though SSR 02-1p requires that the ALJ consider obesity, a failure to do so may be
harmless, Prochaska v. Barhnart, 454 F.3d 731, 737 (7th Cir. 2006); Skarbek v. Barnhart, 390 F.3d
500, 504 (7th Cir. 2004); Moore v. Astrue, 851 F.Supp.2d 1131, 1145 (N.D. Ill. 2012), particularly
when a claimant fails to specify how the obesity further impaired her ability to work. Skarbek, 390
F.3d at 504; Moore, 851 F.Supp.2d at 1145.
Here, Ms. Pierce says nothing about how her weight affected her ability to work. Her
medical records did note that she had a body mass index (“BMI”) of 30, but these observations are
without further comment. This omission is not likely to have occurred if the doctors or Ms. Pierce
thought the obesity affected or exacerbated her condition. The ALJ specifically asked Ms. Pierce
whether she had any other conditions that would in some way “get into the way of your being able
to work.” (R. 53). Ms. Pierce responded that she had high blood pressure, but that this did not keep
her from working. (R. 53). She never mentioned her obesity or any other condition which kept her
from working or exacerbated her injuries.
Ms. Pierce did not sustain her burden to articulate the way her obesity exacerbated her
underlying conditions. Prochaska, 454 F.3d at 736-37; Skarbek, 390 F.3d at 504. Where the
claimant, herself, is silent on this issue, the Seventh Circuit has repeatedly excused an ALJ’s failure
to explicitly address the claimant’s obesity as harmless error, so long as the ALJ demonstrated that
he reviewed the medial records of the doctors who are familiar with the claimant’s obesity.
Prochaska, 454 F.3d at 736-37; Skarbek, 390 F.3d at 504. As the ALJ’s discussion of the evidence
demonstrates here, he did review the medical records of the doctors who were familiar with Ms.
Pierce’s BMI. (R. 19-20).
Therefore, taking into account Ms. Pierce’s failure to satisfy her burden of articulating the
effects of her obesity and her overall silence on the issue, this was a harmless error and does not
require a remand.
Ms. Pierce’s final contention is that the ALJ did not properly weigh the opinion evidence
from treating source, Dr. Duarte. Plaintiff’s Brief, pg. 2, 14-15. She argues that the ALJ did not give
an explanation for his conclusion that the objective evidence did not support Dr. Durant’s opinion.
Plaintiff’s Brief, pg. 15. Furthermore, she argues that the ALJ did not state any rationale to support
his assertion that exercising for 20-30 minutes several times a week was inconsistent with Dr.
Duarte’s opinion. Plaintiff’s Brief, pg. 15. Contrary to Ms. Pierce’s contentions, the ALJ did provide
adequate explanation for his holding that there was little objective support for Dr. Duarte’s opinion.
Also, Ms. Pierce is mistaken in her argument that the ALJ stated exercising was inconsistent with
Dr. Duarte’s limitations.
The ALJ noted that in 2006, Dr. Duarte, advised Ms. Pierce not to return to work because
she had a lumbar disc strain. (R. 19, 331). However, the ALJ found little objective support that her
back pain would prevent her from continuing her work. (R. 19-20). The ALJ took into account the
MRI results, which showed that Ms. Pierce was exhibiting only minor degenerative changes in her
spine, and the ALJ noted that she was not exhibiting a more severe disorder such as neuropathy or
radiculopathy, which would cause her more pain and is a more severe pain-causing disorder. (R. 20).
The ALJ also noted that according to the objective medical findings, Ms. Pierce still maintained a
relatively wide range of motion. (R. 20). Furthermore, the ALJ held that the findings of Dr. Ezike
confirmed that Ms. Pierce’s back impairment was not as limiting as alleged. (R. 20).
The ALJ reviewed, for example, several of Dr. Ezike’s examination notes that reflected
unremarkable findings. Dr. Ezike found that Ms. Pierce could sit or stand for 30 minutes at a time
and could lift up to 20 pounds. (R. 19). Dr. Ezike also noted that Ms. Pierce did not have any
neurological defects and that her range of motion in both her cervical and lumbar spine were
completely normal with only mild pain. (R. 19). In addition, her straight leg testing was negative
bilaterally, she was able to perform toe/heel walk, and get on and off of the examination table with
no apparent difficulty. (R. 19). The ALJ explained that these facts do not indicate that Ms. Pierce’s
pain is so severe and limiting that she cannot return to work. (R. 19-20).
The ALJ clearly weighed the objective medical findings with the opinions established by Dr.
Duarte and found that because of the discrepancy between the opinions of the treating sources and
the objective medical evidence, the ALJ gave little weight to the treating source’s opinion. See
Ketelboeter, 550 F.3d at 625 (if the treating physician’s opinions appear to be based on the
claimant’s subjective complaints, the ALJ may discount it).
Moreover, Ms. Pierce argues that the ALJ did not set forth his rationale to support the finding
that walking 20-30 minutes several times a week was inconsistent with Dr. Duarte’s opinion.
Plaintiff’s Brief, pg. 15. This argument is flawed because the ALJ never asserted that exercising
proved inconsistent with the doctor’s opinion, he stated that it was a “further indication” that the
doctor did not find Ms. Pierce’s pain to be disabling. (R. 20). Also, this was a “further indication”
to the ALJ that the doctor was not relying on objective medical evidence so much as on Ms. Pierce’s
subjective complaints. (R. 20). This, coupled with other examination notes and objective medical
evidence, supported the conclusion that there was little objective support for such a limiting
diagnosis. (R. 20). See Elder, 529 F.3d at 414 (weighing the fact that the claimant participated in
aquatic-exercise classes and regular walking throughout the week to conclude that the claimant was
The plaintiff’s motion for remand is DENIED, and the Commissioner’s motion for summary
judgment is GRANTED.
UNITED STATES MAGISTRATE JUDGE
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