Hannigan-Aleo v. Astrue
Filing
29
MEMORANDUM Opinion and Order Signed by the Honorable Arlander Keys on 10/15/2013. Mailed notice(ac, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
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MICHELLE HANNIGAN-ALEO,
Plaintiff,
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.
12 CV 4157
Magistrate Judge Arlander Keys
MEMORANDUM OPINION AND ORDER
This case is before the court on Michelle Hannigan-Aleo’s
motion for summary judgment.
She seeks a reversal or remand of
the Commissioner’s decision to deny her application for
Supplemental Security Income.
Cross motions for summary judgment
are before this court, and for the reasons set forth below, the
defendant’s motion is granted and the Commissioner’s decision is
affirmed.
Background
On January 4, 2009, Michelle Hannigan-Aleo applied for
Supplemental Security Income (“SSI”), alleging that she became
disabled as of December 19, 2007 due to obesity, female
complications and hernia.
(R. at 61, 108.)
Ms. Hannigan-Aleo’s
claim was denied initially and after reconsideration.
17.)
(R. at
Ms. Hannigan-Aleo then requested a hearing before an
Administrative Law Judge (“ALJ”), and the case was assigned to
ALJ Janice Burning, who held the hearing on March 18, 2010.
(R.
at 16-17.)
I.
Plaintiff’s Hearing Testimony
Ms. Hannigan-Aleo testified that she was 5’5” and weighed
320 pounds.
(R. at 32.)
Ms. Hannigan-Aleo testified that she
completed high school, had no specialized training, and had never
been in the military.
(R. at 33.)
She testified that she had
panic attacks, hallucinations, trouble walking, and could only
sit for twenty to thirty minutes because of her back pain.
at 37-38.)
39.)
She testified that she was unable to bend.
(R.
(R. at
She testified that she had no energy and trouble with her
memory and concentration.
(R. at 46.)
When asked if she had low
self-esteem, she testified to having “no feelings at all”, as
well as difficulty concentrating, and frequent crying spells.
(R. at 36.)
She testified that her sleep schedule had been inconsistent
but that she usually slept during the day.
(R. at 40.)
She
testified that she typically got home from work about 9am, made
breakfast in order to take her medication, slept until 2:15pm,
got ready to go to work again, returned from work around 4pm, and
then slept more.
(R. at 40.)
Ms. Hannigan-Aleo testified that she did not always take her
medication as prescribed.
(R. at 36.)
She explained that not
taking her medication as prescribed was partially due to her
2
forgetting to take the medication.
(R. at 36.)
She testified
that she no longer used her inhaler, and was taking medication
for her high blood pressure and diabetes.
(R. at 35.)
She
testified that she was using a Byetta gun, for her diabetes, but
stopped because it was making her ill.
(R. at 35.)
Ms. Hannigan-Aleo testified that she stopped taking
medication for the arthritis in her back, because she decided not
to mix the medication with her post-surgery Vicodin.
(R. at 38.)
She testified that she never had more arthritis pain medication
prescribed and was waiting to see the doctor.
(R. at 38.)
She
was taking Seroquel for her hallucinations, but went off it
because it interfered with her sugar levels.
(R. at 46.)
She
testified that she was having more hallucinations, but that they
were not severe.
(R. at 47.)
With regard to work, Ms. Hannigan-Aleo testified that she
was currently employed as a crossing guard.
(R. at 38.)
She
testified that she drove to work every day.
(R. at 41.)
She
testified that her work required her to stand for one hour, twice
a day and walk into the road to stop traffic.
(R. at 37-38.)
She testified that her job was stressful because the drivers did
not always listen, and that she had almost been hit by a car
several times. (R. at 48-49.)
She testified that she screamed at
the drivers but not the pedestrians or children.
3
(R. at 49.)
Ms. Hannigan-Aleo testified that she had worked consistently
since she filed for SSI, on December 19, 2007.
(R. at 34.)
She
testified that the only break in her current employment occurred
after her surgery.
(R. at 34.)
She did not work from June 2009
until one month before the hearing (February).
(R. at 34.)
She
testified that her job was tougher since she returned to work,
and that she sometimes needed assistance.
(R. at 48.)
With regard to her daily life, Ms. Hannigan-Aleo testified
that she was living in an apartment with her two children and a
male friend who took care of her.
(R. at 33.)
that she did not live with her husband.
She testified
(R. at 32.)
She
testified that she sometimes had trouble caring for her personal
needs, and sometimes needed help putting on her socks and shoes.
(R. at 40.)
She testified that her friend would remind her to
take her medication and did so even before he moved in. (R. at
44.)
She testified that her children did not help her with any
household activities, but that her friend, Don, did.
(R. at 47.)
She testified that, depending on her pain level, she was
able to prepare meals, but that 99 percent of the time her friend
helped her.
(R. at 40.)
She testified that she was not allowed
to lift anything heavier than a gallon of milk.
(R. at 39.)
She
testified that she did not use an assistive devise to help her
move, but simply took her time.
(R. at 39.)
4
She also testified
that she had difficulty climbing stairs, and had to walk up two
flights of stairs to reach her apartment.
(R. at 39.)
She
testified that she only shopped at grocery stores that had
electric carts available.
(R. at 40.)
She testified that she could clean the dishes, but could not
do laundry, due to the lifting and stairs.
(R. at 41.)
She had
not tried to make the bed, but testified that she did not think
she could because it would require lifting the mattress.
41.)
(R. at
She testified that she could not take out the garbage, and
that when she swept, she had to pile the debris for someone else
to pick up, because she could not bend over to pick it up.
(R.
at 41.)
Ms. Hannigan-Aleo testified that she received government
support from Medicaid and used a Link Card.
(R. at 34.)
She
testified that she utilized support services from Threshold.
at 45.)
(R.
She testified that the people from Threshold stopped by
twice a week, and provided her with transportation when she
needed it.
(R. at 45.)
She testified that she had been in the
program for over three years.
(R. at 45.)
She testified that a
program called Thrive provided her with psychiatric support and
counseling.
(R. at 45.) Ms. Hannigan-Aleo testified that she saw
a psychiatrist once a month and a counselor twice a month.
at 36.)
She testified that she did not think about harming
5
(R.
herself.
(R. at 36.)
She testified that she had not sought
treatment for her panic attacks.
(R. at 37.)
Ms. Hannigan-Aleo testified that it took five months and
five different medications, before it was determined that
Cymbalta was the right medication for her.
(R. at 45-46.)
She
testified that she was not as sad while on Cymbalta, but that she
was still depressed.
(R. at 46.)
Ms. Hannigan-Aleo testified that she was not a part of any
community organizations, did not go out, and had no hobbies or
interests.
(R. at 42-43.)
She testified that, when her son was
younger and in school, she did not participate in school events
or parent-teacher conferences.
(R. at 42.)
She testified that
the only friend or family member she ever saw was her sister, and
that was partly because she had to get mail from her.
42.)
(R. at
She testified that she watched some television and used her
computer for about three hours a week.
(R. at 43.)
She
testified that she had difficulty following through and finishing
what she had started.
II.
(R. at 47.)
Vocational Expert Hearing Testimony
A vocational expert (“VE”) testified at the hearing on March
18, 2010.
(R. at 49.)
The VE testified that she had not
discussed the case with the plaintiff, that her testimony was
consistent with the Dictionary of Occupational Titles, and that
6
the job descriptions were consistent with the national economy.
(R. at 49-51.) The VE testified to having familiarity with the
jobs in the applicable region (Chicago, Naperville, and Joliet
Metro.), hearing the relevant testimony, reviewing the exhibits
and consulting the US Bureau of Labor and Statistics.
50.)
(R. at
The VE testified that Ms. Hannigan-Aleo’s work as a
crossing guard had an SVP of 2, and had an exertion level of
light.
(R. at 50.)
During the testimony, the ALJ asked the VE, hypothetically,
what employment an unskilled person, limited to three-step
repetitive tasks, could find if they were only able to: carry ten
pounds occasionally and less than ten pounds frequently; stand
for two hours a day and sit for six; not climb stairs, ladders,
ropes, scaffolds, but occasionally climb ramps and stairs;
occasionally stoop and balance, kneel and crawl; and have
occasional contact with the public or supervisors and co-workers.
(R. at 50-51.)
The VE testified that there were three types of jobs
available to such a person.
(R. at 51.)
The VE testified that
the person could act as a sorter, which has an SVP level of 2 and
exertion level of sedentary.
(R. at 51.)
were 391 sorter jobs in the area.
The VE testified there
(R. at 51.)
The VE testified
that such a person could be a final assembler, which has an SVP
level of 2 and an exertion level of sedentary.
7
(R. at 51.)
The
VE testified that there were 1225 final assembler jobs in the
area.
(R. at 51.)
Finally, the VE testified that such a person
could be an inspector/check weigher, which has an SVP level of 2
and an exertion level of sedentary.
(R. at 51.)
The VE
testified that there were 3773 inspector/check weigher jobs in
the area.
(R. at 51.)
The ALJ amended the hypothetical to ask what jobs were
available if that person needed to avoid interaction with the
public.
(R. at 51.)
The VE testified that there would be no change in employment
options, and the person could perform any of the three previously
mentioned jobs.
(R. at 51.)
Then the ALJ further amended the hypothetical to assume that
that person would be off task for 20% of the day, and be limited
to working for only four hours out of every eight hour workday.
(R. at 51.)
The VE testified that such a person could not
perform the listed jobs or any other jobs in the area.
(R. at
51.)
III. Medical Record
Ms. Hannigan-Aleo’s medical records mentioned various mental
and physical conditions.
Her mental issues included: bipolar
disorder, major depression, borderline personality disorder,
relational problems, stress, being passively suicidal, and
8
feeling labile, agitated, helpless, and a diminished pleasure
from activities.
(R. at 221-23, 421, 424.)
Ms. Hannigan-Aleo’s medical record listed physical
conditions including: miscarriage, lethargy, hypersomnia, lack of
energy, foot swelling, asthma, suspected strangulated ventral
hernia, ischemia of the bowel, unspecified ganglion, lump on
foot, unspecified uticartia, severe itching, tight throat, four
pulled teeth, umbilical hernia, chronic smoking, pruritic rash,
urinary incontinence, hypertension, infertility,
hypercholesterolemia, removed gallbladder, palpitations,
shortness of breath, DM w/o complications type II (diabetes type
II), diarrhea, leaking cyst, suspected bursitis, possible myopic
nails, heel spurs, bothersome ear, lump on hip, lack of menstrual
cycle, mild degenerative disk disease, anterior spurs,
transitional lumbosacral vertebra, arthritis, acute pharyngitis,
herpes simplex, cough and phlegm, bronchospasms, fistula,
unspecified disorder of skin and subcutaneous tissue, female
stress incontinence, other abnormal glucose, drug rash and dry
skin dermatitis, small bowel obstruction, appendicitis with
abscess, constipation and an allergy penicillin.
(R. at 222-23,
234-35, 237, 245, 257, 259, 260, 277-79, 281, 284, 288-90, 293,
306-08, 330, 334, 343, 355, 359, 393, 620.)
9
Ms. Hannigan-Aleo had reported pain in various places,
including her: back, knee, buttocks, upper abdomen, and foot.
(R. at 223, 257, 295.)
On November 18, 2009, Ms. Hannigan-Aleo had an active
problems list including: hypersomnia, bipolar disorder, DM
without complication type II (diabetes type II), essential
hypertension (benign), Myopia, generalized osteoarthritis
(unspecified site), presbyopia, tobacco abuse, family history of
ischemic heart disease, mixed hyperlipidemia, DM renal
manifestations type II (uncontrolled), DM without complication
type II (uncontrolled), abnormal cardiovascular stress test,
recurrent ventral hernia with obstruction, postoperative wound
infection, wound, open wound of abdominal wall (lateral, without
mention of complication), and morbid obesity.
(R. at 647.)
Ms. Hannigan-Aleo is morbidly obese and has had obesityrelated medical issues for years.
(R. at 22.)
“Her physicians
have suggested possible surgery to control her weight, [as]
attempts at changes in diet proved unsuccessful.”
(R. at 19.)
Even her depressive disorder was linked to her obesity.
22.)
(R. at
During a Disability Progress interview, Ms. Hannigan-Aleo
stated that her conditions first began interfering with her
working in April of 2007.
(R. at 134.)
She stated that her
conditions prevented her from working in December 2007.
134.)
(R. at
She reported that her weight also makes it harder to get
10
out of a chair or bed.
(R. at 158.)
She stated that, before she
was overcome by her condition, she was more active with friends
and family.
(R. at 161.)
She also stated that she can neither
stand nor sit for a long time. (R. at 189.)
She stated that she
does not enjoy any activities, and that she loses interest in
activities fast.
(R. at 164-65.)
She also reported that she has
to be reminded to eat, take her medication, do the laundry and
cook.
IV.
(R. at 162.)
Ms. Hannigan-Aleo’s SSA Filings
In March of 2008, Ms. Hannigan-Aleo answered a Physical
Impairments Questionnaire.
(R. at 157.)
In the questionnaire,
she stated that she could use kitchen tools to prepare simple
meals to feed herself.
(R. at 157.)
She also stated that she
could sit for two hours without getting up.
(R. at 158.)
She
stated that the kids usually cooked dinner, and that a friend
called her to remind her to take her medications and eat
breakfast.
(R. at 160.)
However, in the same report, Ms.
Hannigan-Aleo reported that she cared for her two children by
cooking for them.
(R. at 161.)
The report further stated that
she typically prepared meals once a day.
(R. at 162.)
She
stated that she could, and did, do the laundry and clean the
dishes.
(R. at 162.)
She stated that she went outside every day
and that she drove herself around.
11
(R. at 163.)
Ms. Hannigan-
Aleo reported that she had no family or friend problems.
165.)
(R. at
She reported that her conditions affected her ability to
understand.
(R. at 165.)
She stated that she noticed an unusual
“fear of traffic on the job.”
(R. at 166.)
Ms. Hannigan-Aleo reported that, due to her conditions, she
began needing more assistance from her son in 2008.
(R. at 193.)
She stated that the condition had deteriorated to the point where
her son helped her get in and out of the car and cook.
(R. at
185.)
In a Disability Report-Appeal, Ms. Hannigan-Aleo reported
several changes in her condition.
(R. at 189.)
These included
becoming diabetic and arthritis in her knees, feet and back.
As
a result of the arthritis, she was not able to sit or stand for
very long.
(R. at 189.)
She also reported that her son was
helping her in and out of the bathtub, getting dressed, and going
up and down the stairs.
(R. at 193.)
In the report, Ms.
Hannigan-Aleo stated she worked two hours a day as a crossing
guard and had difficulty standing for that entire time.
194.)
(R. at
However, in another disability report, she stated that she
had “no problems” caring for herself.
(R. at 172.)
Ms. Hannigan-Aleo has held various jobs over the years.
worked at Wendy’s until 1985, drove a bus until 1986, worked
three different security jobs between 1986 and 1989, worked at
Burger King until 1996, and then was unemployed from 1996 to
12
She
2005, when she worked as a crossing guard.
(R. at 149.)
As a
crossing guard, she was paid $10.99 an hour and worked two hours
a day.
(R. at 150.)
The first hour was at the beginning of the
school day, and the second at the end.
(R. at 141.)
She had to
take several months off to recover from surgery, but was allowed
back after her recovery.
V.
(R. at 34.)
RFC Assessment
On April 15, 2008, Dr. Terry Travis, a non-examining
physician, completed a Psychiatric Review Technique form for Ms.
Hannigan-Aleo.
(R. at 392.)
Dr. Travis reported that Ms.
Hannigan-Aleo had a major depressive disorder.
(R. at 395.)
He
reported that her mood disturbance did not precisely fit into a
diagnostic category.
(R. at 395.)
However, Dr. Travis concluded
that she had moderate difficulties concentrating, but only mild
limitations in her daily living and social functioning.
402.)
(R. at
Dr. Travis reported that Ms. Hannigan-Aleo takes care of
her family and friend.
(R. at 404.)
Dr. Travis also completed a mental residual function
capacity assessment form of Ms. Hannigan-Aleo.
(R. at 408.)
He
reported that Ms. Hannigan-Aleo had no issues understanding and
some moderate limitations with her prolonged concentration and
adhering to a schedule.
(R. at 406.)
He noted some marked
social and adaptation issues, however, he stated that Ms.
13
Hannigan-Aleo “is able to function consistently at a reasonable
rate within a schedule and . . . is able to do multistep tasks
that can be learned within 1-6 months in a routine work setting.”
(R. at 407-08.)
On April 17, 2008, Dr. Robert Patey, another non-examining
physician, completed a physical residual function capacity
assessment of Ms. Hannigan-Aleo.
(R. at 417.)
There were no
major work or life limitations mentioned within the report.
(R.
at 410-17.)
On January 21, 2009, Dr. Margaret Robling, Ms. HanniganAleo’s treating psychiatrist, completed a questionnaire for Ms.
Hannigan-Aleo.
(R. at 423.)
Dr. Robling reported that Ms.
Hannigan-Aleo’s affective disorder would moderately limit her
daily living, and markedly limit her concentration and social
functioning.
(R. at 423.)
On January 26, 2009, Kristen Nicolosi, a non-physician
clinical counselor, reported on Ms. Hannigan-Aleo’s condition.
(R. at 424-25.)
In her report, she concluded that Ms. Hannigan-
Aleo would not be able to work in a competitive environment for
eight hours a day, five days a week (R. at 425.)
In February 2008, Ms. Ward, Ms. Hannigan-Aleo’ case manager,
completed a function report on Ms. Hannigan-Aleo.
(R. at 141.)
Ms. Ward stated that Ms. Hannigan-Aleo worked as a crossing guard
2-4 hours a day.
(R. at 141.)
Ms. Ward also stated that Ms.
14
Hannigan-Aleo’s conditions affect her motivation and movement.
(R. at 142.)
Ms. Ward reported that Ms. Hannigan-Aleo did not
need to be reminded to take her medication.
(R. at 142.)
Ms.
Ward reported that Ms. Hannigan-Aleo made dinner once a week, and
the dinner was usually a frozen dinner.
(R. at 143.)
Ms. Ward also explained that Ms. Hannigan-Aleo had
difficulty doing laundry, cooking, and cleaning, because of
financial reasons.
(R. at 142.)
Ms. Ward also reported that Ms.
Hannigan-Aleo was, however, able to do the laundry and clean.
(R. at 143.)
Ms. Ward reported that Ms. Hannigan-Aleo would go
outside to smoke.
(R. at 143.)
Ms. Ward reported that Ms.
Hannigan-Aleo drove herself and her children to doctor’s
appointments often.
(R. at 143.)
Ms. Ward reported that Ms.
Hannigan-Aleo’s conditions did not affect her ability to
understand.
VI.
(R. at 145.)
ALJ Decision
The ALJ issued a decision on June 29, 2010, finding that Ms.
Hannigan-Aleo was not disabled under section 1614(a)(3)(A) of the
social security act from December 19,2007 through the date of the
decision.
(R. at 24.)
The ALJ applied the five-step sequential
analysis as required by the Act, under 20 C.F.R. 416.920(g).
The ALJ found that the plaintiff’s condition did, to some
degree, impair her ability to work.
15
(R. at 19.)
However, the
ALJ found an insufficient amount of evidence to find Ms.
Hannigan-Aleo disabled.
(R. at 24.)
At step one, the ALJ determined that Ms. Hannigan-Aleo’s
work as a crossing guard did not constitute substantial gainful
activity.
(R. at 19.)
At step two, the ALJ determined that Ms. Hannigan-Aleo’s
back pain, depressive disorder, obesity and obesity-related
shortness of breath were severe impairments.
(R. at 19.)
At step three, the ALJ determined that Ms. Hannigan-Aleo’s
impairments did not meet or equal any of the listed impairments
in the enumerated listings.
(R. at 20.)
At step four, the ALJ determined that Ms. Hannigan-Aleo “has
the residual functional capacity to perform sedentary work . . .
with no climbing of ladders, ropes or scaffolds; occasional
balancing, stooping, crouching, crawling, kneeling, or climbing
of ramps and stairs; occasional contact with the public,
supervisors, co-workers; and involving [three] step unskilled
simple repetitive tasks.”
(R. at 21.)
The ALJ supported this determination, by finding that, while
the medical record supports Ms. Hannigan-Aleo’s various symptoms,
her subjective claims as to the intensity of the pain and
impairments were not credible.
(R. at 22.)
The ALJ noted that Ms. Hannigan-Aleo’s stress level and
depression had subsided somewhat since her husband left in 2009.
16
(R. at 22.)
Further, Ms. Hannigan-Aleo is able to work as a
crossing guard, which required her to interact with the public
and stand for an hour at a time.
(R. at 22.)
The ALJ found that
Ms. Hannigan-Aleo was capable of sedentary work activity, as
demonstrated by her activity level as a crossing guard, and the
lack of medical evidence to the contrary.
(R. at 2.)
The ALJ
also found that Ms. Hannigan-Aleo’s claims that she could not
perform at her job both physically or mentally, are countered by
the fact that she had stable employment as a crossing guard.
at 22-23.)
(R.
The ALJ indicated a lack of credibility because Ms.
Hannigan-Aleo claimed to need to be reminded to eat, however she
was suffering from morbid obesity.
(R. at 23.)
Finally, the ALJ
did not accord much weight to several medical records due to
their having been based on subjective assertions made by her, and
because they were not supported by her work as a crossing guard.
(R. at 22.)
At step five, the ALJ determined that “based on the
[plaintiff’s] age, education, work experience, and residual
functional capacity, there are jobs that exist in significant
numbers in the national economy that the [plaintiff] can
perform.”
(R. at 23.)
After listening to the testimony of a
vocational expert, the ALJ determined that Ms. Hannigan-Aleo
would be able to work as a sorter (391 Chicago), final assembler
17
(1225 Chicago), or an inspector/checker/weigher (3773 Chicago).
(R. at 24.)
Ms. Hannigan-Aleo requested review by the Appeals Council,
but it was denied on March 28, 2012.
Thus the ALJ’s decision
became the final decision of the Commissioner.
Ms. Hannigan-Aleo
filed a complaint with the court on May 29, 2012.
The parties
consented to exercise of jurisdiction by a magistrate judge on
August 28, 2012.
judgment.
Before the court are cross-motions for summary
The court has jurisdiction pursuant to 42 U.S.C. §
405(g).
Standard of Disability Adjudication
An individual claiming a need for SSI must prove that she
has a disability under the terms of the SSA.
In determining
whether an individual is eligible for benefits, the social
security regulations require a sequential five-step analysis.
First, the ALJ must determine if the claimant is currently
employed; second, a determination must be made as to whether the
claimant has a severe impairment; third, the ALJ must determine
if the impairment meets or equals one of the impairments listed
by the Commissioner in 20 C.F.R. Part 404, Subpart P, Appendix 1;
fourth, the ALJ must determine the claimant’s RFC, and must
evaluate whether the claimant can perform his/her past relevant
work, and fifth; the ALJ must decide whether the claimant is
capable of performing work in the national economy.
18
Knight v.
Chater, 55 F.3d 309, 313 (7th Cir.1995).
At steps one through
four, the claimant bears the burden of proof; at step five, the
burden shifts to the Commissioner.
Id.
Standard of Review
A district court reviewing an ALJ’s decision must affirm if
the decision is supported by substantial evidence and is free
from legal error.
42 U.S.C. § 405 (g); Steele v. Barnhart, 920
F.3d 936, 940 (7th Cir. 2002).
Substantial evidence is “more
than a mere scintilla”; rather, it 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).
In reviewing an ALJ’s decision for
substantial evidence, the Court may not “displace the ALJ’s
judgment by reconsidering facts or evidence or making credibility
determinations.”
Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir.
2007) (citing Jens v. Barnhart, 347 F.3d 209, 212 (7th Cir.
2003)).
Where conflicting evidence allows reasonable minds to
differ, the responsibility for determining whether a claimant is
disabled falls upon the Commissioner, not the courts.
Herr v.
Sullivan, 912 F.2d 178, 181 (7th Cir. 1990).
An ALJ must articulate her analysis by building an accurate
and logical bridge from the evidence to her conclusions, so that
the Court may afford the claimant meaningful review of the SSA’s
ultimate findings.
Steele, 290 F.3d at 941.
19
It is not enough
that the record contains evidence to support the ALJ’s decision;
if the ALJ does not rationally articulate the grounds for that
decision, or if the decision is insufficiently articulated, so as
to prevent meaningful review, the Court must remand.
Id.
Discussion
The plaintiff argues that the ALJ’s decision must be
reversed or remanded because the ALJ failed to properly evaluate
the opinion evidence, erred in determining the plaintiff’s
credibility, and erred in determining the plaintiff’s residual
functional capacity.
I.
The Opinion Evidence
Plaintiff asserts that the ALJ erred in evaluating the
opinion evidence in the record by not articulating her reasoning,
failing to state the weight attributed to each opinion, making
her own medical evaluation, and not giving controlling weight to
treating physicians’ opinions.
The heart of Plaintiff’s concern
is whether the ALJ made the required evaluation and supported her
decision appropriately.
First, the court finds that the ALJ reasonably articulated
her decision.
“The ALJ must minimally articulate his reasons for
crediting or rejecting evidence of disability.”
Sullivan, 966 F.2d 1070, 1076 (7th Cir. 1992).
Scivally v.
There is no
requirement to state every reason supporting a decision.
20
Here,
the ALJ discussed plaintiff’s obesity, other conditions, current
work, and lack of credibility.
(R. at 21-23.)
This is not a
boilerplate opinion, and the court finds that the ALJ
appropriately articulated her reasoning.
Next, the court finds that the ALJ did not make her own
medical determination.
“The Secretary's decision must be based
on testimony and medical evidence in the record, and the
Secretary ‘cannot make his own independent medical determination
about the claimant.’” Scivally, 966 F.2d at 1076 (quoting Rousey
v. Heckler, 771 F.2d 1065, 1069 (7th Cir.1985)).
Further, an ALJ
should consider all relevant evidence including a plaintiff’s
subjective assertions of pain.
Clifford v. Apfel, 227 F.3d 863,
871 (7th Cir. 2000).
Here, the ALJ discussed the plaintiff’s pain, specifically
discounted the plaintiff’s testimony, and subsequently, the
medical reports that were based on the plaintiff’s subjective
assertions, because of the plaintiff’s lack of credibility.
at 21-23.)
(R.
Discounting medical reports, in this instance, is not
an indication that the ALJ did not consider the medical reports
or listen to the plaintiff’s subjective assertions of pain, but
rather an indication that the ALJ thoughtfully weighed the
evidence before her.
The plaintiff’s claim that the ALJ
completely failed to evaluate or consider medical evidence is
without merit.
The ALJ noted the VE’s testimony and the
21
plaintiff’s success as a working crossing guard to support her
final determination.
In addition to the reasoning stated in the ALJ’s opinion,
there are also various reports that support the ALJ’s decision to
discount the plaintiff’s testimony and rely on other
considerations in making her determination.
In one report by
Plaintiff, she stated that the children have to cook dinner, yet,
she also stated that she cared for the children by cooking for
them.
(R. at 160-61.)
Plaintiff claimed to have difficulty with
stairs, however, her case manager reported that she goes outside
the apartment to smoke although the apartment is up two flights
of stairs.
(R. at 39, 143.)
Additionally, the plaintiff
testified that her friend moved in to take care of her, but in a
medical report, it was stated that she took care of her friend,
and she reported after her surgery that she was able to take care
of herself, as well.
(R. at 33, 172, 404.)
After a thorough
analysis of the record, there is substantial evidence to support
the ALJ’s determination.
Further, the ALJ did not err by not giving controlling
weight to the opinion evidence of Dr. Robling or Clinical
Counselor Kristen Nicolosi, who is not a treating physician.
“A
treating physician's opinion regarding the nature and severity of
a medical condition is entitled to controlling weight if it is
well supported by medical findings and not inconsistent with
22
other substantial evidence in the record.”
870.
Clifford, 227 F.3d at
“An ALJ who does not give controlling weight to the opinion
of the claimant's treating physician must offer “good reasons”
for declining to do so” and determine what weight his opinion was
due under the applicable regulations. See 20 C.F.R. §
404.1527(d)(2).”
Cir. 2010).
Larson v. Astrue, 615 F.3d 744, 749 & 751 (7th
Here, the ALJ stated that she did not give
significant weight to the opinions because they lacked
credibility, as they were based on statements made by the
discredited plaintiff.
(R. at 23.)
The ALJ’s determination that Dr. Robling’s report lacks
credibility is supported by the record.
Dr. Robling’s report is
inconsistent, stating that the plaintiff both does, and does not,
have trouble concentrating.
(R. at 421, 423.)
With regard to
Ms. Nicolosi’s report, one major fact is that Ms. Nicolosi only
began seeing the plaintiff after her SSI claim was denied.
(R.
at 57, 424.)
When treating physician opinions are not granted controlling
weight, then “[a]n 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.”
615 F.3d at 751.
Larson,
While it is required that an ALJ consider all
of the aforementioned factors, it is not required that the ALJ
23
articulate the consideration given to each factor.
Hall v.
Astrue, 3:11-CV-72-TLS, 2012 WL 2847914 (N.D. Ind. July 11,
2012).
The above mentioned factors were not clearly listed in
the ALJ’s opinion, but there is evidence that the ALJ considered
these factors.
The ALJ mentioned that there seemed to be no
credible support, as the opinions were based on incredible
assertions by the plaintiff.
(R. at 23.)
This determination
links directly with the ‘support for a physician’s opinion’
factor, and is an indication that the ALJ did review the
enumerated factors.
The court finds that there was sufficient articulation of
the evidence to support the ALJ’s decision, and that the ALJ did
not err by not giving controlling weight to the treating
physicians’ opinions.
II.
The Plaintiff’s Credibility
The plaintiff claims that the ALJ erred in determining her
credibility, because the ALJ did not sufficiently articulate her
reasoning and did not include unfavorable evidence in her
evaluation.
As “hearing officers are in the best position to see and
hear the witnesses and assess their forthrightness, we afford
their credibility determinations special deference.”
Apfel, 207 F.3d 431, 435 (7th Cir. 2000).
24
Powers v.
“When assessing an
ALJ's credibility determination . . .
we merely examine whether
the ALJ's determination was reasoned and supported.” Elder v.
Astrue, 529 F.3d 408, 413 (7th Cir. 2008).
“We will reverse an
ALJ's credibility determination only if the claimant can show it
was ‘patently wrong.’” Powers v. Apfel, 207 F.3d 431, 435 (7th
Cir. 2000).
“It is only when the ALJ's determination lacks any
explanation or support that we will declare it to be “‘patently
wrong,’” Jens, 347 F.3d at 213 (quoting Powers, 207 F.3d at 435),
and deserving of reversal.”
Elder, 529 F.3d at 413-14.
“In determining credibility an ALJ must consider several
factors, including the claimant's daily activities, her level of
pain or symptoms, aggravating factors, medication, treatment, and
limitations . . . and justify the finding with specific reasons.”
Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009).
“Additionally . . . the ALJ must specifically address the effect
of obesity on a claimant's limitations because, for example, a
person who is obese and arthritic may experience greater
limitations than a person who is only arthritic.”
Id. “Failing
to acknowledge this effect may impact the ALJ's credibility
determination.”
Id.
The ALJ states various inconsistencies in the case to
support her finding that Plaintiff lacks credibility: Plaintiff
claims to forget to eat, yet she is morbidly obese; Plaintiff
utilizes a driver service, yet she claims she is able to drive
25
herself; and Plaintiff has consistently worked as a crossing
guard.
(R. at 22-23.)
It is important to note that, based on
the VE’s testimony, working as a crossing guard is more strenuous
work, though for a shorter time, than is necessary to obtain
substantial gainful employment.
(R. at 50.)
There is no requirement that the ALJ continue to list every
concern or inconsistency related to Plaintiff’s credibility.
this instance, the ALJ listed various key concerns.
there was additional support for the ALJ’s decision.
In
However,
First, the
plaintiff claims to have difficulty with stairs, but her case
manager reported that she goes outside the apartment to smoke,
when the apartment is up two flights of stairs.
(R. at 39, 143.)
Additionally, she testified that her friend moved in to take care
of her, but in a medical report, it was stated that she takes
care of her friend, and she also reported, after her surgery, she
was able to take care of herself.
(R. at 33, 172, 404.)
Further, the ALJ explicitly considered the complications her
obesity contributes.
(R. at 22.)
The court finds that the ALJ
sufficiently articulated the substantial evidence supporting her
decision.
There is an additional consideration worth mentioning.
The
Plaintiff has self-adjusted and discontinued various medical
treatments.
(R. at 36, 38.)
“In order to get benefits, you must
follow treatment prescribed by your physician if this treatment
26
can restore your ability to work.”
20 C.F.R. § 404.1530(a).
“If
you do not follow the prescribed treatment without a good reason,
we will not find you disabled or, if you are already receiving
benefits, we will stop paying you benefits.”
404.1530(b).
20 C.F.R. §
This is not an issue that has been raised by either
party, but is informative.
Not taking pain medication is an
indication that a patient’s pain level may not be as severe as
described, or possibly manageable.
Not following prescribed
treatment for pain regulation again supports the ALJ’s
determination that the plaintiff lacks credibility.
The court
finds that there was substantial evidence and clear articulation
to affirm the ALJ’s decision that Plaintiff was not credible.1
III. The Plaintiff’s Residual Functional Capacity
Plaintiff claims that the ALJ erred in determining her RFC
because the ALJ’s determination lacks any supporting medical
evidence.
When it is established that a plaintiff has no relevant past
work experience then “[the ALJ] [is] required to establish that
[the plaintiff] has the capability of performing other work in
the national economy.”
Clifford, 227 F.3d at 873.
“This finding
must be supported by substantial evidence in the record.”
1
Id.
A further note about the plaintiff’s assertion that the ALJ erred in determining her
credibility; this determination is crucial to the plaintiff’s appeal as it is the foundation of
the ALJ’s opinion evidence determination as well as being the threshold consideration for the
plaintiff’s Step three and five claims. (R. at 15.) This is so, as the plaintiff claims that
step three and five would have been decided differently if sufficient weight was given to
opinions and the RFC was correctly determined, and the key support for both of these
determinations was the credibility finding. These claims, which are buried in the plaintiff’s
appeal, will not be further considered as the threshold question has been decided against them.
27
The ALJ determined Plaintiff’s RFC by considering that the
plaintiff currently works at a more strenuous job, albeit parttime, and lacks credibility.
(R. at 22-23.)
considerations made by the ALJ.
These are serious
The court finds that this was
not a perfunctory examination of a medical record, and, for the
aforementioned reasons, the ALJ’s RFC determination is
sufficiently articulated and supported by substantial evidence.
Conclusion
For the reasons set forth above, the Court DENIES Ms.
Hannigan-Aleo’s motion for summary judgment [#18].
The
Commissioner’s decision is affirmed.
Date: October 15, 2013
E N T E R E D:
_________________________________
MAGISTRATE JUDGE ARLANDER KEYS
UNITED STATES DISTRICT COURT
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