Liggins v. Astrue

Filing 27

MEMORANDUM Opinion and Order Signed by the Honorable Arlander Keys on 4/17/2014. Mailed notice(tlp, )

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

KENNETH LIGGINS,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of
Social Security,
Defendant.

No. 12 C 8251
Magistrate Judge Arlander Keys

MEMORANDUM OPINION AND ORDER
This case is before the Court on Kenneth Liggins’ motion for
summary judgment.

Mr. Liggins seeks a remand or an outright reversal

of the Commissioner’s decision to deny his application for Disability
Insurance Benefits and Supplemental Security Income.

The

Commissioner seeks summary judgment affirming the decision to deny
benefits. For the reasons set forth below, Mr. Liggins’ motion is
denied, and the Commissioner’s motion is granted.
BACKGROUND
On March 2, 2010, Kenneth Liggins filed an application for
Disability Insurance Benefits and Supplemental Security Income,
alleging that he became disabled as of September 30, 2009.

The

Social Security Administration denied his application initially
and on reconsideration.

Thereafter, Mr. Liggins requested a

hearing before an Administrative Law Judge, and the case was

assigned to ALJ Jose Anglada, who held a hearing in Mr. Liggins’
case on June 8, 2011.
At the hearing on June 8, 2011, the ALJ heard from Mr.
Liggins, who appeared with representation, and from Dr. Richard
Hamersma, who testified as a Vocational Expert.

Mr. Liggins

testified that he was born March 23, 1958, Record at 50, and has
two children, ages 24 and 26, Record at 52.

He testified that

he went to a year and a few months of college, but didn’t
finish.

Record at 73.

He testified that he had been homeless

but living in Minneapolis, and that, about two years prior to
the hearing, his sister-in-law sent him a bus ticket to Chicago;
since then, he has lived with her, her husband and their two
children.

Record at 52-54.

Mr. Liggins testified that, after moving to Chicago, he
looked for a job but “was getting too ill.”

Record at 59.

He

testified that, when it gets “real, real cold, I get arthritis
real bad.
them.”

My hands swell up.

Record at 59.

My legs, I couldn’t hardly move

He also testified that, when the weather

changes “my elements just kept coming up though.
legs are real bad now.
stand up properly.

I can’t hardly walk.

I can’t stand too long.”

You know, my

I need a cane to
Record at 59.

He testified that he has arthritis in his knees. Record at
59.

And that his left knee is worse that the right knee.

Record at 60.

He testified that he had four hydrotherapy

2

sessions in Minnesota in 2009, but has not had any therapy since
coming to Chicago.

Record at 60-61.

He testified that he has

seen a doctor and is taking medication.

Record at 61.

When

asked whether the medication helps, Mr. Liggins testified that
“it leaves the pain and stuff.

You know, when I sleep, I wake

up a lot, you know, because my legs be crossing, and I can’t
sleep comfortable like that.

I have to sleep on the floor with

my legs extended up.” Record at 61.

He testified that he takes

his medication every day, no matter how he feels; he testified
that he took his medication the morning of the hearing and that,
as a result, at the time of the hearing “I feel all right.”
Record at 62.

With regard to side effects, Mr. Liggins

testified that sometimes the medication makes him “a little
dizzy” and “makes my hands shake, you know, real bad a lot.”
Record at 62.
Mr. Liggins testified that he has been treated for
arthritis only, but that his back has also been bothering him
and causing him pain.

Record at 65.

He testified that he had

some testing done, but that his doctor has not yet determined
what the problem is with his back.

Record at 65. Mr. Liggins

also testified that his doctor in Minnesota prescribed the use
of a cane for mobility; he testified that the cane helps him
keep his balance. Record at 62-63.

3

Mr. Liggins testified that he had a stroke about 15 years
prior to the hearing.

Record at 66.

He testified that the

stroke mostly affected his face and his legs. Record at 66.

He

testified that, after his stroke, his left side sometimes goes
numb.

He testified “[w]hen I sleep, I can’t sleep on my left

side.

I have to sleep on my right side to try to shift it and

raise my left leg up.
many problems.”

But other than that, I don’t have too

Record at 81. He testified that he is able to

grip his cane with his right hand, which is his dominant hand.
Record at 81.
Mr. Liggins testified that he receives regular treatment at
Cook County Hospital in Oak Forest.

Record at 67-68.

He

testified that he was hospitalized once for leg cramps for about
three days some time in 2008, 2009 or 2010.

Record at 70-71.

Mr. Liggins did not remember exactly when he was hospitalized;
nor could he remember the name of his regular treating physician
at Oak Forest Hospital.

Record at 70-71.

He testified that he

has never been referred for any kind of psychological
evaluation, that he does not take any medication for depression
or any other mental impairment. Record at 82.
With regard to his daily activities, Mr. Liggins testified
that he sits around, and if the weather is nice, he tries to
make it up the steps to sit on the porch; he testified that he
also tries to help his brother-in-law around the house.

4

Record

at 71.

He testified that he tries to straighten up his area of

the house, but is unable to help with chores.

Record at 71. He

testified that he watches a little tv, but doesn’t read.
at 72-73.

Record

He testified that he used to play football, and that

he played wide receiver for a semi-pro team; he testified that
he is no longer able to play.

Record at 74.

He testified that

he sometimes tries to walk down the street, but then he has to
stop, find a shade tree and wait a few minutes before he can
walk back.
far.”

Record at 76.

Record at 76.

He testified that he “can’t walk too

He testified that, with the cane, he can

probably walk a block or a block and a half; without it, he
could maybe walk half a block before stumbling.

Record at 77.

He testified that he can stand for about 15 to 20 minutes, and
that he can sit for half an hour.

Record at 78.

He testified

that he could lift and carry 5 or 10 lbs., that he cannot lift
groceries or pour orange juice with his left hand.

Record at

78.
With regard to his employment history, Mr. Liggins
testified that he formerly did maintenance work, fixing conveyor
belts in a warehouse. Record at 54-55.

He testified that the

work was full-time, but obtained through a temp agency; he
testified that he was on that job for about two and a half or
three years. Record at 55-56.

He testified that he also worked

at Nino’s for a couple of years making pizza.

5

Record at 56-57.

He testified that he last worked at a car wash in Minnesota in
2008 or 2009.

Record at 58.

He testified that the car wash job

was part-time and that, when it ended, he moved to Chicago.
Record at 58.

He testified that his job at the car wash mostly

involved drying off cars, working with a team of others to dry
the cars. Record at 80-81.
The Vocational Expert testified that he had listened to Mr.
Liggins’ testimony and reviewed the exhibits filed in the case,
and that he was familiar with the jobs Mr. Liggins held in the
past.

Record at 82-83.

The VE testified that he would

characterize Mr. Liggins’ past job in the warehouse, setting up
belts, as a “material handler” and his past job making pizzas as
a “food prep worker.”

Record at 83-84.

The ALJ then asked the

VE to consider a hypothetical claimant who was “closely
approaching advance aged with a greater than high school
education and past relevant work as [a material handler and food
prep worker],” who could “lift and carry 20 pounds occasionally
and 10 pounds frequently and can be on his feet, standing and
walking about six hours in an eight-hour work day and sit about
six hours with, normal rest periods”; is “unable to work at
heights, climb ladders or frequently negotiate stairs”; “may
only occasionally stoop, crouch, kneel, or crawl and may be
expected to be off task about 5 percent of the time in an eighthour work day due to pain and discomfort.”

6

Record at 85.

The VE testified that this person would be precluded from
working as a material handler, but could still work in food
prep.

Record at 85.

The VE testified that, if the hypothetical

claimant needed a cane to ambulate, he would be precluded from
working either job.

Record at 85.

The VE testified that, even

with the cane, other jobs would be feasible; for example, the VE
testified, this hypothetical claimant could perform some light,
unskilled work jobs, done in what is basically a sedentary
position, including jobs in inspection (DOT #727.687-054; 2,000
jobs); and hand packager (DOT #559.687-074; 7,000 jobs).

Record

at 85-86. The VE testified that these jobs were consistent with
the DOT. Record at 86.

The VE testified that the claimant could

do these jobs even if he required the use of a cane to ambulate
and even if he could not be on his feet, standing and walking,
for more than four hours in an eight-hour work day.

Record at

86.
Next, the ALJ asked the VE to consider an “Arthritis/Pain
Residual Functional Capacity Questionnaire completed May 3, 2011
by Dr. Rubin at Oak Forest Ambulatory Health Center.
at 337-339.

See Record

After one visit, Dr. Rubin diagnosed Mr. Liggins

with osteo-arthritis in the knees, as well as other conditions,
and she rated his prognosis as “fair”; she noted that he had
reduced range of motion in his knees, joint instability,
abnormal posture, tenderness, muscle spasms, abnormal gait and

7

impaired sleep.

Record at 337.

According to Dr. Rubin, Mr.

Liggins’ symptoms would frequently impair his ability to perform
even simple work tasks; she thought he could sit just 5 minutes
at one time before needing to move and that he could stand for
just 5 minutes before he needed to sit down; she opined that he
could sit, stand and walk for less than 2 hours in an 8-hour
workday; she also noted that he could not tolerate prolonged
sitting.

Record at 338.

Finally, she opined that he could

never carry any weight (even less than 10 lbs.), that he had
significant limitations in doing repetitive reaching, handling
and fingering, and that his impairments would likely cause him
to miss more than 4 days of work per month.

Record at 339.

Based upon this assessment, the VE testified, Mr. Liggins would
be precluded from working in any job.

Record at 87.

The VE

also testified that, if the claimant could not lift more than 10
pounds, he would be unable to do any job at the light level,
even if it were typically performed in a sedentary position.
Record at 88.
In addition to the testimony described above, the ALJ
considered a variety of medical records.

Records from the

Hennepin County Medical Center (“HCMC”) in Minneapolis, show
that Mr. Liggins was treated there for his post-stroke symptoms.
In November 2008, Mr. Liggins had at least five physical therapy
sessions in the pool.

Record at 274.

8

On December 17, 2008, Mr.

Liggins visited the HCMC’s walk-in clinic complaining of back
pain and leg pain; the doctor who saw him, Dr. Heidi Coplin,
noted that his pain was likely related to changes in his posture
as a result of his stroke.

Record at 231, 286.

Dr. Coplin

recommended that he continue his physical therapy sessions, use
ibuprofen and warm packs and return if his symptoms worsened or
failed to improve.

Record at 231.

On January 14, 2009, Mr. Liggins saw Dr. Gregory English,
DO, complaining of back pain.

Dr. English advised him to return

in about 8 weeks. Record at 229.

He was seen at HCMC several

times in January 2009, both in the walk-in clinic and in the
internal medicine department.

He complained of back and leg

pain and requested pool therapy; he also complained about right
side chest pain associated with arm movement.

Record at 236,

237.
On January 21, 2009, Mr. Liggins reported to the Hennepin
County medical clinic for a scheduled nurse visit; at that time
he denied any dizziness, chest pain or shortness of breath and
reported that he was taking his medications as prescribed; the
nurse, in consult with Dr. English, recommended that he continue
his present medication and return to Dr. English as scheduled.
Record at 283.
A medical opinion form signed by Dr. English on what looks
to be January 15, 2009, indicates a diagnosis of “stroke

9

w/residual ambulation limitations + pain.” as well as
“depression from stroke.”

Record at 272.

Additionally, Dr.

English checked the box for “yes” on the question asking whether
the patient has mental illness.

Id.

Mr. Liggins returned to Dr. English’s office for a followup appointment on March 11, 2009.

At that time, he complained

of knee pain, but indicated that his right side chest pain was
“marginally better.”

Record at 281.

Mr. Liggins reported

“continued low back pain, mostly midline. as well as over the
left sided low back musculature.”

Record at 281.

He reported

no “new weakness, although his left side has been weaker since
his stroke.”
non-radiating.

Record at 281.
Record at 281.

He reported that his back pain was
Mr. Liggins reported, for the

past couple of years, he has used a cane for ambulation, and
that he can walk 1.5 blocks before being limited “by both SOB
and leg/back pain.”

Recored at 281.

Mr. Liggins suggested that

pool therapy seemed to help. Record at 281.

Dr. English ordered

an X-ray of Mr. Liggins left knee and advised him to return in
about 3 weeks for follow up.

Record at 227.

On March 16, 2009, an x-ray was taken of Mr. Liggins’ left
knee; the knee was “within normal limits”; the specific findings
were “[n]o bony lesion. Normal joint spaces. No significant
effusion. Arterial calcification noted.”

10

Record at 280.

On April 9, 2010, Mr. Liggins was seen by Mark Conrad,
PhD., a clinical psychologist who evaluated him at the request
of the Illinois Department of Human Services. Record at 241.
According to Dr. Conrad, Mr. Liggins reported struggling with
depression and physical complications from his stroke about 11
years prior.

Record at 241.

He reported that he last worked

about three years ago and had recently relocated to Chicago to
be closer to family; he reported living with his sister and
reported that his adult daughter lives nearby and helps him with
cooking and cleaning.

Record at 241.

Mr. Liggins reported

taking an anti-depressant in the past, but told Dr. Conrad that
he was not taking anything at the time of the exam because he
had no insurance and no money.

Id.

Based upon Mr. Liggins’

performance during the approximately 30-minute evaluation, Dr.
Conrad determined that he was “functioning within the average
range of general intellectual ability” and was “generally able
to participate in the management of his own funds.”
242.

Record at

Dr. Conrad diagnosed Mr. Liggins with a mood disorder,

resultant to his stroke and related medical issues; Dr. Conrad
also noted that Mr. Liggins has “[p]roblems with social
environment, occupational” and he assigned him a GAF of 58.
Record at 242.

A GAF of 58 falls toward the high end of the

range indicating “moderate symptoms (e.g., flat affect and
circumstantial speech, occasional panic attacks) OR moderate

11

difficulty in social, occupational, or school functioning (e.g.,
few friends, conflicts with peers or co-workers).”

DSM-IV, p.

32.
On April 15, 2010, Mr. Liggins underwent an internal
medicine consultative examination with Dr. M.S. Patil.

At the

time of the evaluation, Mr. Liggins
gave a vague history of a stroke in 1995. He is not
sure which side was his stroke. He was admitted to
John Stroger hospital for four days. He then moved to
Minnesota where he received physical therapy for few
weeks. He felt better and was working up until summer
of 2009. He moved back to Chicago in Dec. 2009. He
plans on consulting a public health facility in the
near future for a routine physical examination and
examination of his back. His back has been bothering
him for the past year or so. He denies major injury
or surgery on his back. He complained of intermittent
mild pain and stiffness in his back especially in the
morning. he is not able to bend and lift like before.
He can hardly stand or walk for more than thirty
minutes or pick up more than 10-15 lbs. Claimant
denies gait imbalance, weakness/numbness in
extremities, blurry vision, headaches, dizziness,
urinary tract infection, fever, chills, bladder or
bowel dysfunction. Claimant denies other medical
ailments.
Record at 243.

Mr. Liggins reported that he was not taking any

medication at the time of his evaluation with Dr. Patil. Id.

In

his report, Dr. Patil noted “[m]ild chronic residual paraparesis
of UMN type of left face” but an otherwise normal examination.
Dr. Patil noted that Mr. Liggins’ blood pressure was normal, his
blood pressure stable; he had no range of motion limitations, no
tenderness or joint pain, normal pulses and sensation, normal

12

gait, speech and hand dexterity.

Record at 246.

Dr. Patil also

noted that Mr. Liggins’ “mentation and memory” were normal at
the time of the examination.

Record at 246.

On April 19, 2010, Dr. Jerrold Heinrich completed a Mental
Residual Functional Capacity Assessment for Mr. Liggins.
Record at 250-252.

See

According to his report, Dr. Heinrich

determined that Mr. Liggins was “moderately limited” with
respect to his ability to understand and remember detailed
instructions; his ability to carry out detailed instructions;
his ability to maintain attention and concentration for extended
periods of time; and his ability to respond appropriately to
changes in the work setting.

Record at 250-251.

Dr. Heinrich

determined that Mr. Liggins was either “not significantly
limited” or that there was no evidence of any limitation with
respect to all other delineated areas concerning understanding
and memory, sustained concentration and persistence, social
interaction and adaptation.

Id.

In the written section of his

report, Dr. Heinrich described Mr. Liggins as “a 52-year old
male who is behaviorally limited by a mood disorder due to
medical conditions . . . .”

Record at 252.

Dr. Heinrich noted

that Mr. Liggins’ “current reality-testing is intact.

His basic

cognitive functioning is adequate for day-to-day tasks. His
basic ADLs are fully intact, and he is able to complete
essential activities he chooses to do.”

13

Id.

He noted that Mr.

Liggins could “understand, remember, and execute simple
instructions consistently”; that he “can concentrate and persist
adequately on tasks within an organized setting” and “can adjust
to routine changes in his environment as long as they are not
too frequent”; and that his “basic social skills are
functionally adequate.”

In sum, Dr. Heinrich concluded, Mr.

Liggins “retains the mental and behavioral capacity to do at
least simple tasks within the limitations noted.”

Id.

A “Pyschiatric Review Technique” prepared by Dr. Heinrich
on April 19, 2010 reflects mild restriction of activities of
daily living and mild difficulties in maintaining social
functioning; moderate difficulties in maintaining concentration,
persistence, or pace; and no episodes of decompensation.

Record

at 264.
On April 22, 2010, Dr. Richard Bilinsky, a consultant
physician, determined that Mr. Liggins “does have paraparesis of
the left side of face, but there is not any other objective
evidence to support a limitation of any kind.”

Record at 249.

On October 4, 2010, Mr. Liggins went to the emergency room
at Oak Forest Hospital for elbow pain; x-rays revealed no joint
effusion, no acute fracture and no arthritis; there “was a 1-cm
sized calcification seen in the medial collateral ligament of
the right elbow joint.”

Record at 294, 319. On that same date,

Mr. Liggins also had x-rays taken of his right knee joint; the

14

x-rays revealed “marked vascular calcification” – more
specifically “atherosclerotic calcification of the popliteal
femoral and tibial arches”; the radiologist noted that, based on
the findings, the “[p]ossibility of diabetes should be ruled
out.”

Record at 296.

On February 21, 2011, Mr. Liggins underwent a CT scan of
his head to investigate his complaints of headaches.

The scan

revealed “[n]o acute intracranial hemorrhage” but did show “a
hypodense area . . . in the left basal ganglia including the
caudate nucleus and putamen with no significant mass effect on
the left lateral ventricle frontal horn.”

Record at 292.

According to the report, the findings “may represent old infarct
and/or resolving infarct.”

Record at 292.

The scan also

revealed “a hypodense area . . . in the left pons”; the report
noted that “the possibility of subacute infarct cannot be ruled
out.”

Record at 292.

Finally, the scan revealed “a 2.5-cm soft

tissue mass in the subcutaneous soft tissues overlying the left
parietal region” “most likely either sebaceous cyst and/or
fibroma.”

Record at 292.

On March 14, 2011, Mr. Liggins was seen for a general
medical exam; at that time, the examining physician noted
hypertension, a swelling, mass or lump in his head/neck,
osteoarthritis of the knees and tobacco use disorder.

The

doctor recommended that he start patches for the latter and that

15

he see a general surgeon for the lump in his head/neck.
at 300.

Record

He pursued the recommended plan with respect to the

lump, had it aspirated with a needle and then underwent a course
of antibiotics; he was discharged in good condition.

Record at

304.
On May 3, 2011, Dr. Rachel Rubin, of the Oak Forest
Ambulatory Health Center, completed an Arthritis/Pain Residual
Functional Capacity Questionnaire for Mr. Liggins.
337-339.

Record at

At that time, Dr. Rubin met with Mr. Liggins for the

first and only time, though she noted that Mr. Liggins was a
regular patient of one of her colleagues, who was out on
maternity leave.

Record at 337.

Dr. Rubin rated Mr. Liggins’

prognosis as “fair” and noted that he had reduced range of
motion in both knees, joint instability, impaired sleep,
abnormal posture, tenderness, muscle spasms, and an abnormal
gait.

Record at 337.

She indicated that Mr. Liggins’ symptoms

would frequently be severe enough to interfere with his
attention and concentration, that he could walk only ½ block
with or without his cane, that he could sit for just 5 minutes
before needing to get up, etc.; that he could stand for just 5
minutes before needing to sit down, walk around, etc.; and that
he could sit and stand/walk less than 2 hours total in an 8-hour
workday.

Record at 338.

Dr. Rubin also noted that Mr. Liggins

could never lift any weight – even less than 10 lbs.

16

Record at

339.

Finally, Dr. Rubin indicated that Mr. Liggins’ impairments

were likely to produce “good days” and “bad days” and cause him
to be absent from work more than 4 days per month.

Record at

339.
The ALJ issued his decision on August 15, 2011, finding Mr.
Liggins not disabled.

Record at 33-41.

Initially, the ALJ

determined that, given his earnings record, Mr. Liggins had to
show that he was disabled on or before December 31, 2011 to be
entitled to a period of disability and disability insurance
benefits.

Record at 33.

After reviewing the evidence, the ALJ

determined that Mr. Liggins had not been under a disability
within the meaning of the Act from September 30, 2009 through
the date of the decision.

Record at 33.

At steps one and two, the ALJ determined that Mr. Liggins
met the insured status requirements of the Social Security Act
through December 31, 2011, and that he did not engage in
substantial gainful activity after the alleged onset date.
Record at 35.

At step three, the ALJ determined that Mr.

Liggins had severe impairments – namely, arthritis of the knee
and a history of stroke/status post cardiovascular accident –
but that none of his impairments, alone or combined, met or
medically equaled the severity of a listed impairment.
at 36.

17

Record

Before turning to steps 4 and 5, the ALJ determined that
Mr. Liggins had the residual functional capacity
to perform light work as defined in 20 CFR 404.1567(b)
and 416.967(b) except he can lift and carry twenty
pounds occasionally and ten pounds frequently. He can
be on his feet standing/walking six hours in an eight
hour workday and sit about six hours with normal rest
periods. He is unable to work at heights, climb
ladders or frequently negotiate stairs. He may
occasionally stoop, crouch, kneel or crawl. He would
be expected to be off task five % of the time in an
eight-hour workday. He would need a cane to ambulate.
Record at 37.

Based upon this RFC, the ALJ determined that Mr.

Liggins was precluded from performing his past jobs.
39.

Record at

However, given his age, education, work experience and RFC,

the ALJ determined that Mr. Liggins could perform other jobs
existing in significant numbers in the national economy,
including light unskilled inspection jobs, assembly jobs and
hand packaging jobs.

Record at 40.

Accordingly, the ALJ

determined that Mr. Liggins was not disabled.

Record at 41.

Mr. Liggins sought review of the ALJ’s decision, and, on
September 7, 2012, the Appeals Council denied Mr. Liggins’
request for review, making the ALJ’s decision the final decision
of the Commissioner in his case.

Record at 1.

Mr. Liggins then

filed this lawsuit, on October 15, 2012, seeking review of that
decision.

The case is currently before the Court on cross

motions for summary judgment.

18

Discussion
An individual claiming a need for DBI or SSI must prove
that he 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.
1995).

Knight v. Chater, 55 F.3d 309, 313 (7th Cir.

At steps one through four, the claimant bears the burden

of proof; at step five, the burden shifts to the Commissioner.
Id.
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

19

conclusion.”

Richardson v. Perales, 402 U.S. 389, 401 (1971).

In reviewing an ALJ’s decision for substantial evidence, the
Court may not “displace the ALJ’s judgment by reconsidering acts
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 his 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.

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.

Mr. Liggins argues that the Commissioner’s decision denying
benefits should be reversed or remanded because: (1) the ALJ
improperly weighed the opinions of Dr. English and Dr. Rubin;
(2) the ALJ failed to explain the evidentiary basis for his RFC
assessment; (3) the ALJ improperly assessed Mr. Liggins’

20

credibility; and (4) the Appeals Council erred when it declined
to consider new and material evidence.
A.

The ALJ’s Consideration of Treating Physician Opinions
Mr. Liggins first argues that the ALJ improperly rejected

the opinions of Dr. English and Dr. Rubin.

Dr. English opined

that “due to ambulatory limitations and pain resulting from a
stroke as well as depression Mr. Liggins was unable to perform
work activities in the foreseeable future.”

Brief in support of

summary judgment, p. 7 [Docket #16].
Initially, Dr. English’s checking a box on a form
indicating that “[p]atient will not be able to perform any
employment in the foreseeable future,” record at 225, is of
little consequence by itself. “[W]hether the applicant is
sufficiently disabled to qualify for social security disability
benefits is a question of law that can't be answered by a
physician. But the answer to the question depends on the
applicant's physical and mental ability to work full time, and
that is something to which medical testimony is relevant and if
presented can't be ignored.” Garcia v. Colvin, 741 F.3d 758, 760
(7th Cir. 2013)(citing Bjornson v. Astrue, 671 F.3d 640, 647–48
(7th Cir. 2012); Ferguson v. Commissioner of Social Security,
628 F.3d 269, 272–73 (6th Cir. 2010)).

The ALJ did not ignore

Dr. English’s opinion; he considered it in light of all of the
other evidence, which is what he was supposed to do.

21

A treating

physician’s opinion is entitled to controlling weight only where
it is well-supported and consistent with the bulk of the
evidence; in the face of well-supported contradicting evidence,
a treating physician’s opinion “becomes just one more piece of
evidence for the ALJ to consider.”

Bates v. Colvin, 736 F.3d

1093, 1099-1100 (7th Cir. 2013)(citing Bauer v. Astrue, 532 F.3d
606, 608 (7th Cir. 2008)).
The ALJ noted Dr. English’s conclusion and gave it “some
weight since he had treated the claimant for a period of time.”
Record at 38.

The ALJ also noted, however, that Randy Duncan,

the vocational specialist asked to assess Mr. Liggins’
employability, determined that, with the limitations noted by
Dr. English, Mr. Liggins could still perform sedentary work,
with some additional limitations.
at 224-231).

Record at 38 (citing Record

The ALJ also noted that even Dr. English did not

specify the length of time the claimant would be unable to work.
Record at 39.

Even more significantly, the ALJ noted that Mr.

Liggins’ own testimony concerning what he could and could not do
was inconsistent with Dr. English’s opinion.

Mr. Liggins

testified that he could walk about a half a block without his
cane and a block or block and a half with it, that he walks up
the stairs, helps out around the house Record at 71, 77.

He

testified that he can stand for about 15 to 20 minutes and that
he can sit for half an hour; that he could lift and carry 5 or

22

10 lbs., that he cannot lift groceries or pour orange juice with
his left hand.

Record at 78.

All of this testimony is

consistent with the ALJ’s decision and supports his decision to
discount somewhat Dr. English’s opinion.
Dr. Rubin, in an “Arthritis/Pain Residual Functional
Capacity Questionnaire completed May 3, 2011, opined, after a
single visit with Mr. Liggins, that he had reduced range of
motion in his knees, joint instability, abnormal posture,
tenderness, muscle spasms, abnormal gait and impaired sleep –
all of which, according to Dr. Rubin, would frequently impair
his ability to perform even simple work tasks; she thought he
could sit just 5 minutes at one time before needing to move and
that he could stand for just 5 minutes before he needed to sit
down; she opined that he could sit, stand and walk for less than
2 hours in an 8-hour workday; she also noted that he could not
tolerate prolonged sitting.

Record at 338.

Finally, she opined

that he could never carry any weight (even less than 10 lbs.),
that he has significant limitations in doing repetitive
reaching, handling and fingering, and that his impairments would
likely cause him to miss more than 4 days of work per month.
Record at 339.
The ALJ gave “some weight” to Dr. Rubin, who was not a
treating physician, for a couple of reasons.

First, the ALJ

noted that Dr. Rubin’s opinions were not supported by the

23

probative evidence of record; second, there was no indication
that Dr. Rubin ever performed any kind of clinical evaluation of
Mr. Liggins; rather, the ALJ inferred, the determinations were
likely based on Mr. Liggins’ subjective complaints.

Whether or

not that is true, it is clear that Dr. Rubin’s restrictive
limitations are substantially undermined by Mr. Liggins’
testimony at the hearing.

He testified that he could walk a

block and a half with his cane, that he could stand for about 15
to 20 minutes and that he could sit for half an hour; he also
testified that he could lift and carry 5 or 10 lbs.
78.

Record at

The Court rejects Mr. Liggins’ arguments concerning the

weight given to the opinions of Dr. English and Dr. Rubin.
B.

The ALJ’s RFC Assessment
Next, Mr. Liggins argues that the ALJ failed to explain the

evidentiary basis behind his assessment of Mr. Liggins’ residual
functional capacity.

With respect to RFC, the ALJ determined

that Mr. Liggins had
the residual functional capacity to perform light work
as defined in 20 C.F.R. 404.1567(b) and 416.967(b)
except he can lift and carry twenty pounds
occasionally and ten pounds frequently. He can be on
his feet standing/walking six hours in an eight hour
workday and sit about six hours with normal rest
periods. He is unable to work at heights, climb
ladders or frequently negotiate stairs. he may
occasionally stoop, crouch, kneel or crawl. he would
be expected to be off task five % of the time in an
eight-hour workday. He would need a cane to ambulate.

24

Record at 37.

The ALJ indicated that, in making these findings,

he gave considerable weight to Mr. Liggins’ own words and his
recitation of what he did with his time.
At the hearing before the ALJ, Mr. Liggins indicated that,
when he goes out, he goes alone and either walks or takes public
transportation.

Record at 176.

He stated that he spends time

with others about once a week and goes to church, shelters and
staffing agencies on a regular basis; he states that, at least
four times a week, he goes out to help to get food or supplies.
Record at 177.

When indicating what areas are affected by his

condition, Mr. Liggins checked lifting, squatting, bending,
standing, reaching, walking, kneeling, stair climbing, seeing,
memory, completing tasks, concentration, and using hands.
Record at 178.

He did not check sitting.

Id.

It is true that Mr. Liggins testified that he could not
lift well with his left hand.

Record at 78.

testified that he was right-handed.

But he also

He testified that he

couldn’t pour orange juice with his left hand; but he also
testified that he could pour orange juice with his right hand.
Record at 78.

He testified that he could lift and carry

“[a]round five, ten, something like that” – and, given the
nature of the discussion immediately preceding this statement,
he may have been suggesting that he could lift this much with
each hand, not in a combined total.

25

Record at 78.

Even more significantly, in a function report completed on
March 28, 2010, Mr. Liggins represented that, after taking Advil
and soaking in a tub, he would take the bus to the hospital, get
checked for pain, “then fill out at least four to six
applications a day at little stores or shops and then go home,
find something to eat, soak in the tub again to relieve pain &
then head for bed.”

Record at 173.

Additionally, when asked on

May 28, 2010 about his past work as a car wash attendant, Mr.
Liggins described his duties and responsibilities and then
apparently indicated that he could return to this job.
at 192.

Record

He stated on the form that he “goes outside Mon-Fri to

find a job & try to get medical help.”

Record at 176.

This

evidence strongly suggests that Mr. Liggins believed himself
capable of working and undermines his claim – and any suggestion
by a doctor – that he cannot work.
C.

The ALJ’s Credibility Determination
Mr. Liggins next argues that the ALJ’s analysis of his

credibility was “perfunctory and insufficiently detailed.”
Brief in Support of Summary Judgment, p. 15.

With respect to

Mr. Liggins’ credibility, the ALJ stated that: “[t]he claimant’s
testimony of symptoms and functional limitations, when compared
against the objective evidence and evaluated using factors in
SSR 96-7p, was not credible in view of the lack of supporting
findings in the documentary records, diagnostic findings, the

26

daily level of activity described by the claimant and the
examination findings by the consultative physician (Exhibits 3E,
3F).”

Record at 39.

The ALJ then went on to give specific

examples of inconsistencies in Mr. Liggins’ representations.
For example, the ALJ noted that Mr. Liggins’ representation that
he went out every day to fill out job applications was
inconsistent with his assertion that he was unable to work.
Record at 39.

The ALJ also noted that, although Mr. Liggins

testified that his medication made him dizzy, there was no
indication in the record that Mr. Liggins had ever tried to
change his medication or his treatment regimen.

Record at 39.

“[A]n ALJ must adequately explain his credibility finding
by discussing specific reasons supported by the record.” Pepper
v. Colvin, 712 F.3d 351, 367 (7th Cir. 2013) (citing Terry v.
Astrue, 580 F.3d 471, 477 (7th Cir. 2009)).

The ALJ did this.

The Court agrees with Mr. Liggins that the ALJ’s credibility
analysis was not particularly lengthy.

But Mr. Liggins’

statements that he was actively looking for work – his admission
that he was not working, not because he was unable to work, but
because he had not yet found a job – is powerful evidence that
Mr. Liggins’ claims of disability were not believable.
Additional analysis was almost unnecessary.

The fact that the

ALJ provided additional reasons for finding Mr. Liggins’

27

credibility lacking further suggests that the ALJ’s credibility
findings should not be disturbed.
D.

The Appeals Council’s Rejection of New Evidence
Finally, Mr. Liggins argues that the Appeals Council

improperly rejected a medical evaluation and physician’s report
completed by Tharanum Zehra on October 4, 2011.
pp. 365-369.

See Record at

The Appeals Council determined that the evaluation

and report came after the ALJ issues his decision, and was,
therefore, not properly considered in connection with that
application for benefits.

Mr. Liggins argues that this was

erroneous; he concedes that the report was prepared after the
ALJ issued his decision, but he argues that the Appeals Council
should nonetheless have considered the information because Dr.
Zahra began treating Mr. Liggins in March, 2011, several months
before the ALJ issued his decision.

See Brief in Support of

Summary Judgment, p. 19.
The Social Security Regulations provide that “[i]f new and
material evidence is submitted, the Appeals Council shall
consider the additional evidence only where it relates to the
period on or before the date of the administrative law judge
hearing decision.”

20 C.F.R. 404.970(b).

In Mr. Liggins’ case,

the Appeals Council advised Mr. Liggins that it had “considered
the reasons you disagree with the decision and the additional
evidence listed on the enclosed Order of Appeals Council” and

28

“found that this information does not provide a basis for
changing the Administrative Law Judge’s decision.”
2.

Record at 1-

The Appeals Council did note that certain evidence was dated

after the ALJ’s decision, but it does not mention Dr. Zehra’s
report in that paragraph; rather, that statement relates to
medical records from Oak Forest Hospital, which are listed
separately from Dr. Zehra’s report on the Appeals Council Order
referenced.

Thus, as an initial matter, it is not clear that

the Appeals Council denied review because of the date of the
report.
But, even if the Appeals Council had applied 20 C.F.R.
§404.970(b) to Dr. Zehra’s report, the Court cannot say that
decision was erroneous as a matter of law.

Despite Mr. Liggins’

arguments, the evaluation and report in no way indicates that it
reflects treatment notes or observations dating from before
August 15, 2011.

The report is dated October 4, 2011 and

reflects Dr. Zehra’s observations and assessment on that date.
There is nothing to suggest these findings would relate back to
the very first visit on March 14, 2011 or any visit prior to
August 15, 2011.

Accordingly, if the Appeals Council really did

decide to rely 20 C.F.R. §404.970(b) in connection with the
report, its decision would be unreviewable.

See, e.g. Perkins

v. Chater, 107 F.3d 1290, 1293-94 (7th Cir. 1997)(absent some
error of law in the application of the regulation, the Council’s

29

decision whether to review is discretionary and unreviewable)
(citing Damato v. Sullivan, 945 F.2d 982-988 (7th Cir. 1992)).
Conclusion
For the reasons set forth above, the Court denies Mr.
Liggins’ motion for summary judgment [#13] and grants the
Commissioner’s motion for summary judgment [#20].

The

Commissioner’s decision to deny benefits is affirmed.

Date: April 17, 2014
E N T E R E D:

_________________________________
MAGISTRATE JUDGE ARLANDER KEYS
UNITED STATES DISTRICT COURT

30