Wade, Jr. v. Astrue
MEMORANDUM Opinion and Order Signed by the Honorable Sheila Finnegan on 1/31/2014: Plaintiff's Motion for Summary Judgment 22 is denied and Defendant's Motion for Summary Judgment 34 is granted. The Clerk is directed to enter judgment in favor of Defendant. Civil case terminated. [For further details see memorandum opinion and order.] Mailed notice. (is, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
OTIS WADE, JR.,
CAROLYN W. COLVIN, Acting
Commissioner of Social Security, 1
No. 12 C 8260
Magistrate Judge Finnegan
MEMORANDUM OPINION AND ORDER
Plaintiff Otis Wade, Jr. brings this action under 42 U.S.C. § 405(g), seeking to
overturn the final decision of the Commissioner of Social Security (“Commissioner”)
denying his applications for Disability Insurance Benefits (“DIB”) and Supplemental
Security Income (“SSI”) under Titles II and XVI, respectively, of the Social Security Act.
The parties consented to the jurisdiction of the United States Magistrate Judge pursuant
to 28 U.S.C. § 636(c). Plaintiff filed a summary judgment motion seeking reversal of the
Administrative Law Judge’s decision, and the Commissioner filed a cross-motion
seeking affirmance of the decision. After careful review of the parties’ briefs and the
record, the Court denies Plaintiff’s motion, grants the Commissioner’s motion, and
affirms the ALJ’s decision.
Plaintiff applied for DIB on February 13, 2009 and for SSI on July 8, 2009,
alleging that he became disabled beginning on December 31, 2006 due to depression,
On February 14, 2013, Carolyn W. Colvin became Acting Commissioner of Social
Security, and is automatically substituted as Defendant in this case pursuant to Federal Rule of
Civil Procedure 25(d)(1).
high blood pressure, and diabetes, which caused balance problems, insomnia, and
hand tremors. (R. 16, 134-36, 168). The Social Security Administration denied the
applications initially on October 21, 2009, and again on reconsideration on May 3, 2010.
(R. 20, 72-75). Pursuant to Plaintiff’s timely request, Administrative Law Judge (“ALJ”)
Patricia J. Bucci held a hearing on April 15, 2011, where she heard testimony from
Plaintiff, represented by counsel, and a vocational expert. (R. 45-71). On May 18,
2011, the ALJ found that Plaintiff is not disabled and is capable of performing jobs that
exist in significant numbers in the regional and national economy. (R. 31-33). The
Appeals Council denied Plaintiff’s request for review on August 20, 2012. (R. 1-5).
Plaintiff now seeks judicial review of the ALJ’s decision, which stands as the final
decision of the Commissioner. In his brief, Plaintiff argues that the ALJ erred by (1)
failing to give sufficient weight to the opinion of his counselor Alicia Carter; (2) failing to
fully account for his mental impairments in the RFC assessment, and (3) finding him not
fully credible without considering the limitations on his daily activities and his allegations
of hand tremors, anemia, and hip and leg pain.
Plaintiff was born on November 8, 1958 and was 48 years old on his alleged
disability onset date.
He completed two years of college.
(R. 31, 172).
Plaintiff’s past relevant experience included working full-time as a certified nursing
assistant from 1996 to 2003 and part-time as a church maintenance worker from 2003
until he was fired in 2006 when he had an altercation with his new supervisor. 2 (R. 31,
57-58, 64, 169).
The record is unclear as to whether Plaintiff’s disability onset date of December 31, 2006
coincided with his termination or arose from a health-related or other incident.
Plaintiff’s Medical History
Treatment Prior to Denial of Benefits
The earliest medical documentation in the record is an admission to Provident
Hospital from May 21-23, 2007 due to chest pain, shortness of breath upon exertion,
and dizziness. (R. 296-316). The ER notes indicate “poorly controlled” diabetes and a
right hand asterixis (tremor). (R. 296). A stress test revealed moderately to markedly
reduced functional capacity/exercise tolerance, produced no chest pain or reproduction
of symptoms, and was inconclusive for ischemia due to an inadequate heart rate
achieved. (R. 309). Plaintiff was prescribed medication for his diabetes and referred to
his primary care doctor for follow-up. (R. 307-08).
A year later, on May 28, 2008, Plaintiff returned to Provident Hospital for “’med
refill & checkup.’” (R. 283). He complained of difficulty writing due to his hand shaking,
which he had experienced “for his entire life,” but which “got worse” around 2003. (Id.).
He also reported some tingling in his lower legs. (Id.). The doctor refilled Plaintiff’s
diabetes and hypertension (high blood pressure) prescriptions and diagnosed him with
an intension tremor, for which he referred him to a neurologist. (R. 284).
Plaintiff’s mental health issues are first documented beginning in early 2009. On
February 17, 2009, a new client Psychiatric Evaluation Form was completed by a
psychiatrist at the Human Resources Development Institute (HRDI). 3
Plaintiff reported that he was staying with his sister, but she would be moving and he
will be homeless soon. (R. 257). He complained of problems with his hands shaking
Plaintiff testified at his hearing before the ALJ that he began living at HRDI in 2009 and
was still living there at the time of the hearing. (R. 54). HRDI provides residential and
outpatient services in, among other areas, mental health and alcohol and substance abuse.
See Human Resources Development Institute, Inc., http://www.hrdi.org (viewed Jan. 30, 2014).
and trouble balancing “off and on” since 1992, as well as depression. (Id.). He had
never seen a psychiatrist for treatment. (Id.). He had a history of alcoholism but had
been sober for 15 years. (Id.). Plaintiff had no suicidal or homicidal ideation, thought
disorder, incoherence, illogical thinking, or hallucinations. (R. 259). His appetite was
decreased; he had insomnia; his energy, concentration and loss of interest/libido was
decreased; and his consciousness was clear. (Id.). He was oriented, his memory was
intact, and his attention and concentration were impaired.
diagnosed him with major depression that is recurrent and severe, and recommended
that he “may benefit from psychotropics” and “needs psychosocial support and rehab.”
The psychiatrist prescribed Celexa for Plaintiff’s depression, but in March 2009
switched him to Lexapro, which was refilled on seven more occasions through the end
of 2009. (R. 387). At a follow-up psychiatric appointment on April 22, 2009, Plaintiff
reported that he “likes Lexapro, feels less depressed, [is] sleeping [and] eating OK, has
[a] good sleep schedule.” (R. 328). At his next follow-up on May 20, 2009, Plaintiff
reported that “Lexapro made him sleepy” but his “response is good” so the doctor
switched him to a p.m. medication schedule. (Id.). On June 18, 2009, the doctor simply
noted that Plaintiff was “doing OK.” (Id.).
On July 28, 2009, Gwendolyn Cobb of HRDI, whose title and credentials are not
specified, completed a Mental Impairment Questionnaire for Plaintiff. (R. 319-22). Ms.
Cobb stated that she sees Plaintiff three times per week, but did not specify in what
capacity. (R. 319). She reported that he takes 20 mg of Lexapro once daily, and
checked off the following symptoms associated with Plaintiff’s depression:
disturbance with weight change, sleep disturbance, feelings of guilt/worthlessness,
difficulty thinking or concentrating, social withdrawal or isolation, decreased energy, and
intrusive recollections of a traumatic experience.
She concluded that his
impairments or treatment would cause Plaintiff to be absent from work more than three
times per month. (R. 320). She further concluded that he has moderate restriction of
activities of daily living; moderate difficulties in maintaining social functioning; constant
deficiencies of concentration, persistence, or pace resulting in failure to complete tasks
in a timely manner, and continual episodes of deterioration or decompensation in work
or work-like settings. (R. 322).
However, on September 15, 2009, Plaintiff reported to his HRDI psychiatrist that
“‘I am not depressed often, some days I feel sad and then I take my medicine.’” (R.
Plaintiff denied any recent depressed mood, feelings of hopelessness,
hallucinations, or sleep disturbance.
On October 13, 2009, Plaintiff told the
psychiatrist that he is “better” and was “sleeping well,” and the psychiatrist concluded
that he was “stable.”
Consulting Assessments for Benefits Application
On October 5, 2009, Charles Carlton, MD completed an Internal Medicine
Consultative Examination for the Illinois Bureau of Disability Determination Services
Plaintiff’s chief complaints were balance problems,
sleeplessness, depression, and weakness and tremors in both hands. (R. 330). Dr.
Carlton noted “a history of hypertension and diabetes dating back to 1992” and onset of
depression back in 1986 4 when his mother died,” but recounts Plaintiff’s present
complaints beginning on May 21, 2007, when he experienced chest pain, dizziness, and
shortness of breath and was admitted to the hospital with atypical chest pain, diabetes,
hypertension, and chronic anemia. (R. 330-31). Plaintiff stated that he believes his
tolerance is limited to light work and that “he can handle tasks such as mopping and
floor care.” (R. 331). Dr. Carlton’s musculoskeletal examination showed the following:
“Claimant had normal grip strength bilaterally. Grip and prehension ability in each hand
was normal. Fine and gross motor skills in each hand were normal.”
Specifically, Plaintiff was able to perform eight of eight fine and gross manipulative
movements of his right and left hands and fingers, and his grip strength was 5 out of 5
in both hands. (R. 335). His neurological examination revealed “no signs of tremors or
hand weakness.” (R. 333). Dr. Carlton concluded that Plaintiff can sit and stand; walk
greater than 50 feet without an assistive device, lift, carry and handle objects using both
hands; and lift up to 20 pounds on an occasional basis. (R. 334).
On October 20, 2009, Richard Bilinsky, MD completed a Physical Residual
Functional Capacity Assessment for the DDS based on a primary diagnosis of atypical
chest pain, a second diagnosis of diabetes, and other alleged impairments of
hypertension and chronic anemia.
He concluded that Plaintiff can
occasionally lift or carry 20 pounds, frequently lift or carry 10 pounds, stand and/or walk
(with normal breaks) about 6 hours in an 8-hour work day, sit (with normal breaks)
about 6 hours in an 8-hour work day, and is unlimited in his ability to push and/or pull
other than as shown for lifting and/or carrying. (R. 362). Dr. Bilinsky found that Plaintiff
In a subsequent Mental Status Evaluation, Dr. Patricia Morrin noted that Plaintiff stated
his mother died in 1998 or 1999 of complications following open heart surgery. (R. 342).
has no postural, manipulative, or communicative, limitations, but that he has limited far
visual acuity and should avoid concentrated exposure to noise and vibrations due to a
history of headaches. (R. 363-65). Dr. Bilinsky noted Plaintiff‘s history of chest pain
and reiterated the findings of Dr. Carlton’s physical examination. (R. 362-63). He found
Plaintiff’s statements concerning his pain and limitations to be “partially credible when
compared to objective medical evidence in the file,” but concluded that the evidence did
not support the extent of limitations described by Plaintiff in terms of his inability to lift
over 10 pounds and his limitations in squatting, bending, reaching, kneeling, stair
climbing, using hands, and sitting. (R. 363).
On October 5, 2009, Patricia M. Morrin, Psy.D. completed a Mental Status
Consultative Evaluation for the DDS. (R. 342-46). She spent 45 minutes interviewing
Plaintiff, but was provided no medical records to review. (R. 342). She noted that
Plaintiff currently lives at HRDI, a mental health facility in Chicago, where he attends
groups for anxiety and anger and gets along “‘pretty well’” with his roommate. (R. 345,
346). Dr. Morrin observed that Plaintiff reported “sadness, which comes and goes” and
that he “does not have very good energy” and “feels like crying but cannot.” (Id.).
Plaintiff has been taking Lexapro since April 2009, denied any previous treatment or
hospitalizations for mental health reasons, and sees a psychiatrist and attends groups
for anxiety and anger at HRDI. (Id.). Dr. Morrin found that Plaintiff’s “overall affect and
mood were somewhat flat and severely depressed;” his “speech was relevant and
coherent, and his articulation was clear;” and his “thought processes were intact, and he
denied having any visual hallucinations.” (R. 346). She diagnosed him with “[m]ajor
depressive disorder, recurrent, severe without psychotic features” and “[a]lcohol abuse,
sustained full remission.” (Id.).
On October 20, 2009, Kirk Boyenga, PhD completed a Psychiatric Review
Technique for the DDS. (R. 347-60). He evaluated Plaintiff under categories 12.04
(affective disorders) and 12.09 (substance addiction disorders).
category 12.04, Dr. Boyenga concluded that Plaintiff suffers from “disturbance of mood”
accompanied by depressive syndrome characterized by loss of interest in almost all
activities, sleep disturbance, decreased energy, feelings of guilt or worthlessness, and
difficulty concentrating or thinking. (R. 350). Under category 12.09, Dr. Boyenga noted
that a full remission was reported. (R. 355). He found Plaintiff’s functional limitations to
be mild in terms of restrictions of activities of daily living and moderate in terms of
difficulties in maintaining social functioning and concentration, persistence, or pace.
Dr. Boyenga found no episodes of decompensation of extended duration.
(Id.). He reviewed the mental health medical records on file, but did not give controlling
weight to the report by Plaintiff’s HRDI therapist because she is not an acceptable
Dr. Boyenga concluded that Plaintiff’s allegation of
depression is credible. (Id.).
Also on October 20, 2009, Dr. Boyenga completed a Mental Residual Functional
Capacity Assessment for the DDS.
moderately limited in his ability to:
He concluded that Plaintiff is
understand, remember, and carry out detailed
instructions; maintain attention and concentration for extended periods; complete a
normal workday and workweek without interruption from psychologically based
symptoms and perform at a consistent pace without an unreasonable number and
length of rest periods; interact appropriately with the general public; and respond
appropriately to changes in the work setting. (R. 369-70). Dr. Boyenga summarized his
assessment as follows:
Claimant experiences an affective disorder and the history of a substance
addiction. The addiction is reported to be in sustained, full remission.
Claimant is currently in outpatient mental health care. His therapist
completed a summary of residual capacity, indicating severe limitations;
however, she is not an acceptable source. Claimant’s treating psychiatrist
documents only the prescription of an antidepressant medication, with the
last available note indicating that claimant was doing ok. An earlier
assessment indicates that claimant was unable to work due to a tremor.
That and other physical limitations have been addressed elsewhere. On
recent examination claimant is fully oriented and free of thought disorder.
He is also able to manage personal hygiene, do laundry, attend group
meetings and make purchases. Claimant is capable of performing simple
tasks. Social skills are impaired, but allow settings with reduced
interpersonal contact. Claimant relates well with treating sources.
Adaptation abilities are limited, but allow routine, repetitive tasks. Claimant
can follow instructions and travel independently.
The Social Security Administration denied the applications initially on October 21,
2009, and again on reconsideration on May 3, 2010. (R. 72-75).
Treatment After Denial of Benefits
On November 23, 2009, Plaintiff saw Dr. Chukwudozie Ezeokoli at Stroger
Hospital, who noted that Plaintiff suffers from diabetes mellitus, hypertension, and
Plaintiff was taking Metformin for diabetes and Enalapril and
Metoprolol for high blood pressure.
Plaintiff complained of leg weakness,
shortness of breath on exertion with no chest pain, and leg and hip pain. (Id.). Dr.
Ezeokoli found Plaintiff’s diabetes and hypertension to be well controlled, and referred
him for a stress test. (R. 273-74).
Plaintiff saw Dr. Ezeokoli again on March 12, 2010, where he was given
Nifedipine for his high blood pressure and told to continue his diabetes and depression
medications and see a psychiatrist. (R. 397). On April 22, 2010, he was seen by a
Lung Health Educator at Stroger Hospital and referred to a smoking cessation group.
(R. 486). On July 22, 2010, he saw Dr. Ezeokoli for lower right back pain and an initial
gastrointestinal exam. (R. 412).
On November 1, 2010, Plaintiff saw Dr. Ezeokoli for a follow-up appointment
after he was seen at an “outside clinic and told he needed a blood transfusion because
his blood [count] was too low” due to anemia. (R. 406). Dr. Ezeokoli referred him to
hematology, noted that his hypertension was well controlled, and switched his diabetes
medicataion from Metformin to Glipizide. (R. 407).
Meanwhile, Plaintiff continued to receive psychiatric treatment at HRDI.
December 24, 2009, Plaintiff reported to his psychiatrist that he was “doing good” and
denied any new symptoms. (R. 391). At their next meeting on March 10, 2010, Plaintiff
denied any psychosis or sustained mood changes. (Id.). On March 25, 2010, an HRDI
psychiatrist completed a Psychiatric Evaluation Form as part of an annual evaluation
process. (R. 253-56). The form notes that Plaintiff is “stabilized with psychotherapy
and meds” and “will cont[inue] present management.” (Id.). The psychiatrist specified
that Plaintiff has no suicidal or homicidal ideation, thought disorder, incoherence,
illogical thinking, or hallucinations. (R. 254). His appetite increased, his energy and
concentration were unchanged, his loss of interest/libido decreased, and his
consciousness was clear.
He was oriented and his memory and
attention/concentration were intact. (Id.). His diagnosis of depression was unchanged
and it was recommended that he continue his current medication. (R. 256).
Around this same time period, Plaintiff’s HRDI psychiatrist altered his depression
medications, switching him from Lexapro to Cymbalta on March 10, 2010, but returning
him to Lexapro on April 8, 2010 because the Cymbalta upset his stomach. (R. 386,
390). On April 22, 2010, Plaintiff presented to Stroger Hospital seeking refills of his
medications, including Lexapro; the doctor’s notes indicate that Stroger reissued
prescriptions Plaintiff had just received from Provident Hospital. (R. 263). Several days
later, on April 27, 2010, HRDI switched Plaintiff to Celexa, which was refilled five times
through October 6, 2010. (R. 386). Plaintiff saw his HRDI psychiatrist on five more
occasions from May to October 2010. (R. 389-90). In May and June, his psychiatrist
noted that he was “doing OK” and had “no problems or new changes,” and in mid-June
his case manager noted that he was hoping to secure a job through the Ticket to Work
program. (R. 390, 445). By August, he complained to his psychiatrist that his hand
tremors had worsened. (R. 390). On September 8, 2010, he reported that he was not
sleeping well, had a reduced appetite, and was “still depressed.” (R. 389). At the last
psychiatrist visit documented in the record, on October 6, 2010, Plaintiff reported “no
problems” and said he was “sleeping better.” (Id.).
Plaintiff also received individual counseling from an HRDI mental health
professional during this time period. He met with his case manager on approximately
47 occasions between January 8, 2010 and September 2, 2010. (R. 434-80). On
September 8, 2010, Alicia Carter took over as Plaintiff’s primary case manager and met
with him on six occasions between September 10, 2010 and November 10, 2010. (R.
426, 429-33). On September 13, 2010, her notes state that Plaintiff “was alert and
stable and in good spirits” and was compliant with his medications. (R. 432). On
September 17, 2010, her notes reflect that she educated Plaintiff about his depression
diagnosis, to which he responded that “’this information helps me to get a better
understanding of my illness.’” (R. 431). On September 20 and 30, 2010, she discussed
with Plaintiff his applications for entitlement funding, including SSI. (R. 429-30).
On October 5, 2010, Ms. Carter completed a Mental Impairment Questionnaire
for Plaintiff. (R. 276-79). Ms. Carter stated that she sees Plaintiff three times per week,
and that he is diagnosed with major depression, diabetes, high blood pressure, and
severe tremors. (R. 276). She checked off the following symptoms associated with
appetite disturbance with weight change, sleep disturbance,
feelings of guilt/worthlessness, suicidal ideation or attempts, social withdrawal or
isolation, decreased energy, and intrusive recollections of a traumatic experience. (Id.).
She concluded that his impairments or treatment would cause Plaintiff to be absent from
work more than three times per month. (R. 277). From a checklist, she identified
Plaintiff’s mental abilities and aptitude needed to do unskilled work as “poor/none” for
the following: maintaining attention for a two-hour segment, working in coordination
with or proximity to others without being unduly distracted, completing a normal workday
or work week without interruptions from psychologically based symptoms, performing at
a consistent pace without an unreasonable number and length of rest periods, and
dealing with normal work stress. (R. 278). Ms. Carter concluded that Plaintiff has
moderate restriction of activities of daily living; moderate difficulties in maintaining social
functioning; constant deficiencies of concentration, persistence, or pace resulting in
failure to complete tasks in a timely manner; and continual episodes of deterioration or
decompensation in work or work-like settings. (R. 279).
On January 5, 2011, Plaintiff saw hematologist Shivi Jain, MD at Stroger Hospital
for evaluation of his anemia. (R. 489). Dr. Jain’s impression was hypertension with
nomocytic anemia of unclear etiology (cause), for which he recommended a series of
blood tests. (Id.). There is no further medical documentation after this date.
In an August 12, 2009 Function Report submitted in support of his application for
benefits, Plaintiff stated that he “cannot write or hold anything” because “my hands
shakes a lot [sic], I cannot steady them to write.” (R. 177). He stated that he cannot
shave and has trouble feeding himself because of the shaking. (Id.). Meal preparation
and cleaning are performed by staff in his group home, but he does his own bathing,
laundry and shopping without assistance. (R. 177-79). He travels to the community
center five days per week for group therapy. (R. 176, 180). He has difficulty walking
stairs, squatting and kneeling due to low back and right hip pain; can walk 8 blocks at a
slow pace before needing to rest; and has difficulty following instructions. (R. 177, 18182, 185). He stays awake “most of the night” and cannot sleep more than 2 hours at a
In a March 24, 2010 Function Report submitted in support of his
application for reconsideration of the denial of benefits, Plaintiff’s statements about his
daily activities and limitations were largely unchanged from the prior report, except that
he stated he can only walk a block and a half before needing to rest. (R. 212-22).
At the hearing before the ALJ on April 15, 2011, Plaintiff testified that he has lived
in HRDI housing since 2009 and currently lives in his own HRDI apartment. (R. 52, 54).
He prepares meals for himself so long as he does not splash on himself due to his hand
tremors, does his own grocery shopping, and takes public transportation. (R. 53). On a
typical day, he gets picked up by van to go to the HRDI center for group meetings, plays
cards and dominoes, and sits around. (R. 55).
Plaintiff testified that he takes medication for diabetes, high blood pressure, and
depression. (R. 54). He becomes short of breath when he walks “too far” or climbs
stairs, and also has problems walking because his “right hip goes out.” (R. 54, 56). He
testified that he injured his hip when he fell down a flight of stairs while doing
maintenance, and that he reported the pain to his doctor, who “told me don’t lift nothing
over 10 pounds.” (R. 57). He stated that he can walk “like half a block,” “can stand all
day” so long as he is not moving, and can only sit for about 30 minutes “‘cause I get
stiff.” (R. 56-57). Plaintiff also testified that he has “continuous” hand tremors that
cause him difficulty with gripping and writing. (R. 58). As a result, it takes him “a while”
to button or zip his clothes and he has dropped cups and mugs. (R. 58). He believes
he will have difficulty standing and lifting to perform work. (R. 60). Plaintiff has been
seeing a psychiatrist for depression, but “[s]ometimes I get upset” and his memory
“comes and goes.” (R. 60-61). He tends to “stay by myself” and has less energy due to
difficulty sleeping. (R. 61-62).
In response to questions from his attorney, Plaintiff testified that the problem with
his grip “comes and goes,” so he could grab something several times but not all day
long. (R. 62). He also stated that he reads email on the computer, which he can do
“[a]s long as my hand is flat,” but he cannot type to send emails. (R. 63). He avoids
going out to eat since he does not like people looking at him when his hands shake and
he drops utensils. (R. 63-64).
Vocational Expert’s Testimony
Sheryl Larivoiso testified at the hearing as a vocational expert (“VE”). (R. 64-70).
She identified Plaintiff’s past relevant work as certified nursing assistant (or “nurse aid”
in the Dictionary of Occupational Titles), classified as semi-skilled work at the medium
physical demand level that was performed at the heavy level, and commercial or
institutional cleaner, classified as heavy, unskilled work that was performed at the heavy
level. (R. 65).
The ALJ then described to the VE a hypothetical individual of Plaintiff’s age,
education, and work experience who “can perform a range of light work with limited far
acuity, and the individual must avoid concentrated exposure to noise and vibrations”
and “would be limited to simple tasks, having only occasional interpersonal contact.”
(R. 66). The VE testified that such an individual would be able to perform the job of
housekeeping cleaner (10,000 positions regionally), hand packager (15,000), and
production assembler (1,000). (R. 66-67).
The ALJ then presented a second hypothetical that maintained the restrictions
described in the first hypothetical but added the additional restriction of “no lifting
greater than 10 pounds, and no standing and walking for more than two hours in an
eight hour day.” (R. 67). The VE testified that such an individual would be able to
perform two sedentary, unskilled jobs: hand packager (1,300 positions regionally of a
different type than those under the prior hypothetical) or production worker (700). (R.
The ALJ next presented a third hypothetical that maintained the restrictions
described in the second hypothetical but added the additional restrictions that the
individual “would be absent more than three times a month, and would have poor or no
ability in maintaining attention concentration for a two-hour segment; being able to work
in coordination with a proximity to the others [sic] without being distracted, complete a
normal work day and work week without interruptions for psychologically-based
symptoms, perform at a consistent pace without unreasonable number and length of
rest periods, and deal with normal work stress.” (R. 68). The VE testified that there
would be no work that such an individual could perform. (Id.).
Next, Plaintiff’s attorney asked the VE if the individual described in the first
hypothetical could still perform the jobs identified if an additional restriction of
“occasional use of bilateral hands” was added. (R. 69). The VE testified that bilateral
use of the hands is “frequent” for those light jobs identified in the first hypothetical, and
that sedentary jobs such as those identified in the second hypothetical require “good
use of the hands.” (Id.). The ALJ followed up by asking the VE if such a restriction
would eliminate all jobs, to which the VE replied that the only other jobs with “occasional
handling and reaching” would be counter clerk, information clerk, or ticket taker, but
noted that those jobs involved interacting with the public. (R. 69-70).
In applying the five-step sequential analysis required by 20 C.F.R. § 404.1520(a),
the ALJ first determined that Plaintiff has not engaged in substantial gainful activity
since the alleged onset date of December 31, 2006. (R. 18). At Steps 2 and 3, she
determined that Plaintiff has the severe impairments of major depressive disorder,
diabetes, hypertension, hand tremors, anemia, and atypical chest pain, and the nonsevere impairment of a history of alcohol abuse in remission, but that none of these
impairments meet or equal any of the listed impairments identified in 20 C.F.R. Part
404, Subpart P, Appendix 1. (R. 18-20).
Proceeding to Step 4, the ALJ concluded that Plaintiff retains the residual
functional capacity (“RFC”) to perform light work as he can occasionally life and/or carry
20 pounds, frequently lift and/or carry 10 pounds, can stand and/or walk around 6 hours
in an 8-hour workday, can sit about 6 hours in an 8-hour workday, can push and/or pull
unlimited, has no postural limitations (climbing, balancing, stooping, kneeling,
crouching, crawling), has no manipulative limitations, has limited far acuity but otherwise
was not limited visually, has no communicative limitations, and has no environmental
limitations except that he should avoid concentrated exposure to noise and vibration.
(R. 20-21). In addition, the ALJ specified that “due to his mental impairments, the
claimant was capable of performing simple tasks and routine, repetitive tasks and
occasional interpersonal contact.” (R. 21).
FInally, at Step 5, the ALJ found that Plaintiff is unable to perform his past
relevant work, but relying on the VE, concluded that there are other jobs that exist in
sufficient numbers in the national and regional economy that Plaintiff can perform, given
his age, education, work experience, and RFC. (R. 31-32). Accordingly, the ALJ found
that Plaintiff was not disabled since his alleged disability onset date. (R. 32).
In order to qualify for DIB or SSI, a claimant must establish that he is “disabled”
and eligible for benefits as defined by the Social Security Act.
42 U.S.C. §§
1382c(a)(3), 423(a)(1)(A), (E); see also Liskowitz v. Astrue, 559 F.3d 736, 739-40 (7th
Cir. 2009). A person is disabled if “he is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months.”
42 U.S.C. §§ 1382(a)(3)(A),
423(d)(1)(A). In order to determine whether a claimant is disabled, the ALJ conducts a
standard five-step inquiry, which requires the ALJ to consider in sequence: (1) whether
the claimant is currently unemployed; (2) whether the claimant has a severe
impairment; (3) whether the impairment meets or equals one of a list of specific
impairments enumerated in the regulations; (4) whether the claimant can perform his
past relevant work; and (5) whether the claimant is able to perform other work in the
national economy. 20 C.F.R. §§ 404.1520, 416.920; see also Zurawski v. Halter, 245
F.3d 881, 885 (7th Cir. 2001) (citations omitted). “An affirmative answer leads either to
the next step, or, on Steps 3 and 5, to a finding that the claimant is disabled. A negative
answer at any point, other than Step 3, ends the inquiry and leads to a determination
that a claimant is not disabled.” Zurawski, 245 F.3d at 885 (quoting Zalewski v. Heckler,
760 F.2d 160, 162 n.2 (7th Cir. 1985)); see also 20 C.F.R. § 404.1520, 416.920.
Standard of Review
Judicial review of the Commissioner’s final decision is authorized by Section
405(g) of the Social Security Act. 42 U.S.C. § 405(g). A “court will reverse an ALJ’s
denial of disability benefits only if the decision is not supported by substantial evidence
or is based on an error of law.” Nelms v. Astrue, 553 F.3d 1093, 1097 (7th Cir. 2009).
Evidence is considered substantial “so long as it is ‘sufficient for a reasonable person to
accept as adequate to support the decision.’” Ketelboeter v. Astrue, 550 F.3d 620, 624
(7th Cir. 2008) (quoting Jens v. Barnhart, 347 F.3d 209, 212 (7th Cir. 2003)). The
reviewing court may not “displace the ALJ’s judgment by reconsidering facts or
evidence, or by making independent credibility determinations.” Elder v. Astrue, 529
F.3d 408, 413 (7th Cir. 2008). Even when there is adequate evidence in the record to
support the decision, however, the findings will not be upheld if the ALJ does not “‘build
an accurate and logical bridge from the evidence to the conclusion.’” Berger v. Astrue,
516 F.3d 539, 544 (7th Cir. 2008) (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir.
2000)); see also 42 U.S.C. § 405(b)(1).
The Court now addresses in turn each of Plaintiff’s arguments challenging the
Opinion of Plaintiff’s Counselor
Plaintiff first argues that the ALJ erred by failing to properly consider the opinion
of Alicia Carter, his counselor at HRDI. The specific opinion at issue is the Mental
Impairment Questionnaire prepared by Ms. Carter on October 5, 2010 after Plaintiff’s
application for benefits was denied.
In her assessment, Ms. Carter
identified Plaintiff’s mental abilities and aptitude needed to do unskilled work as
“poor/none” in the areas of maintaining attention for a two-hour segment, working in
coordination with or proximity to others without being unduly distracted, completing a
normal workday or work week without interruptions from psychologically based
symptoms, performing at a consistent pace without an unreasonable number and length
of rest periods, and dealing with normal work stress. (R. 278). She found that Plaintiff
has moderate restriction of activities of daily living; moderate difficulties in maintaining
social functioning; constant deficiencies of concentration, persistence, or pace resulting
in failure to complete tasks in a timely manner; and continual episodes of deterioration
or decompensation in work or work-like settings. (R. 279). Ms. Carter also concluded
that Plaintiff would be absent from work more than three times per month due to his
mental impairments. (R. 277). Plaintiff contends that the ALJ erred in not giving greater
weight to Ms. Carter’s assessment, finding that she was not an acceptable medical
source, her opinion was conclusory and inconsistent with Plaintiff’s daily activities, and
hers was “a sympathetic opinion” not supported by the evidence as a whole. (Doc. 22
at 7; R. 30-31). As set forth below, the ALJ’s findings in this regard were well-supported
by substantial evidence.
In her decision, the ALJ stated that she gave significant weight to the opinions of
Dr. Carlton, Dr. Bilinsky, and Dr. Boyenga, but assigned Ms. Carter’s opinion “less
weight as she is not an acceptable medical source under 20 CFR 404.1513 and
416.913” and Social Security Ruling (SSR) 06-03p. As a preliminary matter, the parties
disagree as to Ms. Carter’s credentials. Plaintiff appears to assert that Ms. Carter is a
licensed clinical social worker (Doc. 22 at 7), however the Commissioner notes that the
record evidence shows only that her credentials are “BA, CAAP, MHP” (Doc. 35 at 3
n.1, citing R. 279), which this Court presumes to mean that she earned a Bachelor of
Arts degree and is a Certified Associate Addiction Professional and a Mental Health
In any event, the analysis of this issue is the same whether Ms. Carter is a
licensed clinical social worker or some other form of social worker, counselor or
therapist. Counselors such as Ms. Carter are not acceptable medical sources who can
provide evidence to establish an impairment, and therefore her opinion is not entitled to
controlling weight on this issue.
20 C.F.R. §§ 404.1513(a); 416.913(a); see also
Compton v. Colvin, No. 11 C 8305, 2013 WL 870606, *10 (N.D. Ill. Mar. 7, 2013).
Evidence from such sources may be considered, however, to show the severity of a
claimant’s impairments and how those impairments affect the ability to work. 20 C.F.R.
§§ 404.1513(d); 416.913(d). Plaintiff argues that the ALJ should have afforded Ms.
Carter’s opinion greater weight concerning the severity of his mental impairments due to
the length and frequency of Plaintiff’s treating relationship with her. But Ms. Carter
began counseling Plaintiff on September 8, 2010, less than a month before she
prepared her assessment (R. 433), so the treating relationship was of quite limited
duration. As for frequency, while Ms. Carter’s assessment states that she meets with
Plaintiff three times per week (R. 276), the record shows that she met with him only five
times before completing the assessment (R. 429-33), and that the last two of those
meetings was focused solely on assisting Plaintiff with his applications for benefits (R.
429). 5 In any event, the ALJ acknowledged in her decision that “the claimant does see
Plaintiff also argues that the ALJ should have considered Plaintiff’s full treating history
with other professionals at HRDI in assessing how much weight to give Ms. Carter’s opinion
her for treatment on a frequent basis,” so the ALJ expressly considered the frequency of
the treating relationship in assessing how much weight to assign Ms. Carter’s opinion.
Plaintiff also takes issue with the ALJ’s statement that Ms. Carter’s assessment
was “conclusory with no support or explanation for her restrictions.” (R. 31).
regulations specify that in addition to considering the nature of the examining and
treating relationship, an ALJ will consider the “supportability” of an opinion, giving more
weight to opinions the more they present relevant evidence and the better they are
explained. 20 C.F.R. §§ 404.1527(c)(3); 416.927(c)(3). Here, as the Commissioner
notes, Ms. Carter merely checked items on a checklist with no narrative explanation of
the source of her conclusions.
None of Ms. Carter’s progress notes from her five
meetings with Plaintiff prior to her assessment supports the severity of the impairments
she identifies in her assessment. To the contrary, on September 13, 2010, she noted
that Plaintiff “was alert and stable and in good spirits” and was compliant with his
medications (R. 432), and her later progress notes are essentially silent as to his
condition. Plaintiff argues that Ms. Carter’s assessment is supported by the mental
status evaluation by state agency consulting psychologist Dr. Morrin who diagnosed
Plaintiff with major depression. (Doc. 22 at 8). But while Dr. Morrin’s diagnosis of
depression is consistent with Ms. Carter’s opinion, Ms. Carter’s opinion as a nonacceptable medical source is considered only as to the severity of the impairments and
(Doc. 22 at 7-8), although he presents no legal authority to support such a position and there is
no evidence that Ms. Carter ever reviewed those records. This argument is nonetheless
unavailing since the most recent prior Mental Impairment Questionnaire for Plaintiff was
prepared by a different counselor on July 28, 2009, a full 15 months before the one prepared by
Ms. Carter. Moreover, the HRDI psychiatrist’s notes from his examination of Plaintiff on October
6, 2010 (the day after Ms. Carter’s assessment) stated that Plaintiff had “no problems” and was
“sleeping better.” (R. 389).
how it affects Plaintiff’s ability to work, not the diagnosis. On this point, there is nothing
in Dr. Morrin’s evaluation to support Ms. Carter’s conclusions as to Plaintiff’s mental
limitations and inability to sustain employment.
Finally, Plaintiff makes a cursory argument that the ALJ erred in concluding that it
“appears her opinion is a sympathetic opinion as it is not supported by the evidence as
a whole.” (R. 31). Plaintiff relies solely on Moss v. Astrue, 555 F.3d 556, 560 (7th Cir.
2009), but this case is not analogous. In Moss, the Seventh Circuit found that the ALJ
erred in discounting the opinion of plaintiff’s orthopedic specialist based solely on the
fact that plaintiff was referred to the doctor by his attorney to assist in a legal matter and
the ALJ failed entirely to address whether the doctor’s opinions were supported by
medical evidence. See id. That is not the situation here. As an initial matter, Ms.
Carter is not an acceptable medical source like the treating doctor in Moss. Regardless,
it is permissible for an ALJ to find a treating physician’s opinion less reliable if the doctor
is sympathetic, which may be shown if the opinion is inconsistent with a consulting
physician’s opinion, internally inconsistent, or based solely on the claimant’s subjective
complaints. Ketelboeter v. Astrue, 550 F.3d 620, 625 (7th Cir. 2008). In Moss, the ALJ
never considered these factors, but here the ALJ expressly found Ms. Carter’s
assessment to be lacking in any evidentiary support or explanation, inconsistent with
Plaintiff’s daily activities, and not supported by the evidence as a whole, including the
Mental RFC and Psychiatric Review Technique prepared by consulting psychologist Dr.
Boyenga. (R. 30-31). Thus, the ALJ’s determination that the opinion was sympathetic
and unsupported was not “mere speculation without basis” as Plaintiff contends. (Doct.
22 at 9).
For these reasons, the ALJ did not err in assigning less weight to the assessment
prepared by Ms. Carter than she did to the opinions of the consulting doctors.
Plaintiff next argues that the ALJ erred by failing to fully account in the RFC for
Plaintiff’s moderate difficulties with concentration, persistence or pace, and that the
ALJ’s hypotheticals to the VE were therefore deficient. Specifically, Plaintiff argues that
the ALJ disregarded without explanation consulting psychologist Dr. Boyenga’s
conclusion that Plaintiff is moderately limited in his ability to concentrate, complete a
workday without interruption, perform at a consistent pace without an unreasonable
number of breaks, interact with the general public, and respond appropriately to
changes in the work setting. He also argues that it was insufficient for the ALJ to
account for his difficulties by limiting him to simple tasks and routine, repetitive tasks.
Finally, Plaintiff contends that, based on these errors, the hypotheticals to the VE were
flawed. These arguments lack merit.
In order to determine at Steps 4 and 5 of the analysis whether the claimant can
perform his past relevant work or adjust to other work, the ALJ must first assess the
claimant’s RFC, which is defined as the most the claimant can do despite his limitations.
20 C.F.R. §§ 404.1520(e), 404.1545; SSR 96–8p, 1996 WL 374184, *2. The RFC
determination is a legal, rather than a medical, one.
20 C.F.R. § 404.1527(d).
crafting the RFC, an ALJ must consider all functional limitations and restrictions that
stem from medically determinable impairments, including those that are not severe.
See SSR 96–8p, 1996 WL 374184, *5. An ALJ is not permitted to “play doctor” or make
independent medical conclusions that are unsupported by medical evidence or authority
in the record. Blakes ex rel. Wolfe v. Barnhart, 331 F.3d 565, 570 (7th Cir. 2003);
Clifford, 227 F.3d at 870. But an ALJ need not discuss every piece of evidence, and
need only logically connect the evidence to the ALJ’s conclusions. See Jones v. Astrue,
623 F.3d 1155, 1160 (7th Cir. 2010); Berger, 516 F.3d at 544.
Here, Plaintiff argues that the ALJ rejected, without discussion, Dr. Boyenga’s
findings that he is moderately limited in his ability to concentrate, complete a workday
without interruption, perform at a consistent pace without an unreasonable number of
breaks, interact with the general public, and respond appropriately to changes in the
work setting. (Doc. 22 at 13-14, referencing R. 369-70). But Dr. Boyenga made those
particular findings in Section I of the Mental RFC Assessment form and, as the
Commissioner notes, the Social Security Administration’s Program Operations Manual
System (POMS) specifically instructs the ALJ that “Section I is merely a worksheet to
aid in deciding the presence and degree of functional limitations and the adequacy of
documentation and does not constitute the RFC assessment.”
24510.060(B)(2), available at https://secure.ssa.gov/poms.nsf/lnx/0424510060 (viewed
Jan. 30, 2014) (bold in original). As the POMS makes clear, it is in Section III of the
form “that the actual mental RFC assessment is recorded, explaining the conclusions
indicated in section I, in terms of the extent to which these mental capacities or
functions could or could not be performed in work settings.” Id. at 24510.060(B)(4)
(bold in original). In Section III, Dr. Boyenga specified the following RFC:
On recent examination claimant is fully oriented and free of thought
disorder. He is also able to manage personal hygiene, do laundry, attend
group meetings and make purchases. Claimant is capable of performing
simple tasks. Social skills are impaired, but allow settings with reduced
interpersonal contact. Claimant relates well with treating sources.
Adaptation abilities are limited, but allow routine, repetitive tasks. Claimant
can follow instructions and travel independently.
(R. 371). Plaintiff does not contend that the ALJ failed to incorporate these Section III
limitations into the RFC, arguing only that the items from Section I also should have
been included. While the POMS is an internal agency guidance document and not
legally binding authority, this Court finds it highly persuasive in establishing how the
medical source and the Commissioner are directed to use the form in crafting the RFC.
In his reply brief, Plaintiff argues that Dr. Boyenga did not explain how he incorporated
the limitations from Section I into the RFC in Section III. But this is mere speculation on
Plaintiff’s part as Dr. Boyenga’s findings in Sections I and III are not inconsistent with
one another. Dr. Boyenga reasonably could have translated the moderate limitations
from the Section I worksheet into the RFC in Section III, by limiting Plaintiff to simple,
routine, and repetitive tasks and settings with reduced interpersonal contact. In any
event, as many other courts have found, the ALJ need only look to Section III for the
RFC assessment as directed by the POMS. See Nathan v. Colvin, No. 12-35797, 2014
WL 28617, *2 (9th Cir. Jan. 3, 2014); Sullivan v. Colvin, 519 Fed. Appx. 985, 989 (10th
Cir. 2013); Land v. Comm’r of Social Sec., 494 Fed. Appx. 47, 49 (11th Cir. 2012);
Smith v. Comm’r of Social Sec., 631 F.3d 632, 637 (3d Cir. 2010); Baumgartner v.
Colvin, No. 12-C-251, 2013 WL 5874633, *14 (W.D. Wis. Oct. 31, 2013); Malueg v.
Astrue, No. 06-C-676-S, 2007 WL 5480523, *6-7 (W.D. Wis. May 30, 2007).
Plaintiff also argues that the ALJ did not adequately account for his moderate
limitations in concentration, persistence or pace by limiting him to simple tasks, directing
the Court to a line of cases in which the Seventh Circuit stated that limiting an individual
to simple, routine or repetitive tasks is generally not sufficient to account for deficiencies
in concentration, persistence or pace. (Doc. 22 at 11-12, citing O’Connor-Spinner v.
Astrue, 627 F.3d 614, 620 (7th Cir. 2010), Stewart v. Astrue, 561 F.3d 679, 684-85 (7th
Cir. 2009), Craft v. Astrue, 539 F.3d 668, 677-78 (7th Cir. 2008), and Kasarsky v.
Barnhart, 335 F.3d 539, 544 (7th Cir. 2003)). While this is the general rule, where “a
medical expert ‘translated an opinion of the claimant’s medical limitations into an RFC
assessment’ an ALJ may rely upon that translation.” Adams v. Astrue, 880 F. Supp. 2d
895, 912 (N.D. Ill. 2012) (quoting Milliken v. Astrue, 397 Fed. Appx. 218, 221-22 (7th
Cir. 2010)); see also Johansen v. Barnhart, 314 F.3d 283, 288-89 (7th Cir. 2002) (no
error where physician translated moderate mental limitations into a specific RFC
assessment that the plaintiff could still perform low-stress, repetitive work). That is what
Dr. Boyenga concluded in the Psychiatric Review Technique that
Plaintiff has moderate difficulties in maintaining concentration, persistence, or pace (R.
357), and then went on to address in the Mental RFC Assessment the limitations those
difficulties impose on his capacity to work. 6 In that Mental RFC Assessment, the doctor
As Social Security Ruling 96–8p specifies, while the Psychiatric Review Technique
(PRT) is used at Step 3, the Mental RFC Assessment is used at Steps 4 and 5:
The psychiatric review technique. The psychiatric review technique described in
20 CFR 404.1520a and 416.920a and summarized on the Psychiatric Review
Technique Form (PRTF) requires adjudicators to assess an individual's
limitations and restrictions from a mental impairment(s) in categories identified in
the “paragraph B” and “paragraph C” criteria of the adult mental disorders
listings. The adjudicator must remember that the limitations identified in the
“paragraph B” and “paragraph C” criteria are not an RFC assessment but are
used to rate the severity of mental impairment(s) at steps 2 and 3 of the
sequential evaluation process. The mental RFC assessment used at steps 4 and
5 of the sequential evaluation process requires a more detailed assessment by
itemizing various functions contained in the broad categories found in paragraphs
B and C of the adult mental disorders listings in 12.00 of the Listing of
Impairments, and summarized on the PRTF.
specified, among other things, that Plaintiff “is capable of performing simple tasks,” his
“[s]ocial skills are impaired, but allow settings with reduced interpersonal contact,” and
his “[a]daptation abilities are limited, but allow routine, repetitive tasks.” (R. 371). Thus,
it was Dr. Boyenga, not the ALJ, who determined that Plaintiff has the capacity to
perform simple tasks and routine, repetitive tasks despite his mental limitations. It was
Dr. Boyenga who “translated” Plaintiff’s mental limitations into an assessment of his
capacity to perform work tasks.
In crafting the RFC on this point, the ALJ merely
adopted the Mental RFC limitations set forth by Dr. Boyenga.
For similar reasons, Plaintiff is incorrect in his assertion that the ALJ failed to
pose hypotheticals to the VE that account for his moderate limitations in concentration,
persistence or pace. “[T]here is no literal requirement that the terms ‘concentration,
persistence or pace’ be used.” Adams v. Astrue, 880 F. Supp. 2d 895, 912 (N.D. Ill.
2012) (citing O’Connor-Spinner, 627 F.3d at 619-20). As noted above, an ALJ may rely
on a medical expert’s translation of limitations into an RFC assessment, Adams, 880 F.
Supp. 2d at 912 (quoting Milliken, 397 Fed. Appx. at 221-22), which is precisely what
happened here. The ALJ posed an initial hypothetical to the VE, which all subsequent
hypotheticals incorporated, that limited the individual to performing “simple tasks, having
only occasional interpersonal contact.” (R. 66). In fashioning this limitation, the ALJ
relied on Dr. Boyenga’s Mental RFC Assessment, which found Plaintiff capable of
performing “simple tasks” in settings with “reduced interpersonal contact” despite his
moderate mental limitations.
Thus, the ALJ did not translate Plaintiff’s
SSR 96-8p, 1996 WL 374184, *4 (emphasis added). Thus, any attempt by Plaintiff to equate
Dr. Boyenga’s findings in the PRT (of moderate limitations in concentration, persistence, or
pace) with an RFC assessment is unavailing.
moderate limitations in concentration, persistence, or pace into RFC restrictions; she
merely adopted the psychologist’s translation.
Plaintiff further argues that the ALJ erred by not addressing the VE’s testimony
concerning the third hypothetical presented by the ALJ, which added additional mental
limitations, namely that the individual “would be absent more than three times a month,
and would have poor or no ability in maintaining attention concentration for a two-hour
segment; being able to work in coordination with a proximity to the others [sic] without
being distracted, complete a normal work day and work week without interruptions for
psychologically-based symptoms, perform at a consistent pace without unreasonable
number and length of rest periods, and deal with normal work stress.” (R. 68). The VE
testified that there would be no work that such an individual could perform. (Id.). But
the ALJ was not required to address this testimony because it included limitations not
supported by the record, in particular that Plaintiff would be absent from work more than
three times per month. This limitation appears nowhere in either the PRT or the MRFC
prepared by Dr. Boyenga. While Plaintiff’s counselor, Ms. Carter, included it in her
assessment, the ALJ properly did not give controlling weight to this opinion for the
reasons discussed above. Thus, there is no evidentiary support for such a limitation,
and the ALJ was not required to discuss the hypothetical that incorporated it.
For these reasons, the RFC determination is supported by substantial evidence.
Plaintiff next argues that the ALJ erred in finding him not fully credible without
considering the limitations on his daily activities and his allegations of hand tremors,
anemia, and hip and leg pain. An ALJ’s credibility finding is accorded deference and
may be overturned only if it is “patently wrong.” Pepper v. Colvin, 712 F.3d 351, 367
(7th Cir. 2013) (citing Craft v. Astrue, 539 F.3d 668, 678 (7th Cir. 2008)). However, “an
ALJ must adequately explain his credibility finding by discussing specific reasons
supported by the record,” Pepper, 712 F.3d at 367 (citing Terry v. Astrue, 580 F.3d 471,
477 (7th Cir. 2009)), and must connect credibility determinations to the record evidence
by an “‘accurate and logical bridge,’” Castile v. Astrue, 617 F.3d 923, 929 (7th Cir. 2010)
(quoting Shramek v. Apfel, 226 F.3d 809, 811 (7th Cir. 2000)).
For the reasons
discussed below, the ALJ’s credibility determination is supported by substantial
Plaintiff argues that the ALJ selectively considered his daily activities, failing to
mention certain “qualifications” on his activities of daily living.
contends that the ALJ erred by not mentioning that he: (1) cooks only “as long as his
hand tremors do not cause him to splash hot grease on himself,” (2) cannot type and
can only use his computer “if he keeps his hand flat,” (3) cannot write due to hand
tremors, and (4) shops only “once every three months.” (Doc. 22 at 16, citing R. 53, 63,
177, 179). But the ALJ did, in fact, acknowledge his difficulties using the computer,
expressly stating that he can “use a computer, albeit as long as his hand is flat.” (R.
30). The ALJ also acknowledged his difficulty writing, stating that Plaintiff “indicated that
he has problems gripping and writing.” (Id.) That the ALJ did not mention the other two
items does not render her credibility analysis inadequate, as an ALJ is not required to
discuss every piece of evidence, but must only create a “logical bridge” between the
evidence and her conclusions. See Castile, 617 F.3d at 929. The ALJ here did that,
describing Plaintiff’s daily activities as he testified to them in the Function Reports and
at the hearing, and mentioning several ways in which Plaintiff stated his daily activities
were impaired, including the two identified above. Accordingly, Plaintiff has not shown
that the credibility determination is patently wrong in this respect.
Severity of Symptoms
Plaintiff next argues that his hand tremors, anemia, and hip and leg pain are
more severe and limiting than the ALJ found them to be. In assessing a claimant’s
credibility when the allegedly disabling symptoms, such as pain, are not objectively
verifiable, an ALJ must first determine whether those symptoms are supported by
medical evidence. See SSR 96-7p, 1996 WL 374186, at *2; Arnold v. Barnhart, 473
F.3d 816, 822 (7th Cir. 2007). If not, SSR 96-7p requires the ALJ to “consider the entire
case record and give specific reasons for the weight given to the individual’s
statements.” Simila v. Astrue, 573 F.3d 503, 517 (7th Cir. 2009) (quoting SSR 96-7p).
The ALJ “should look to a number of factors to determine credibility, such as the
objective medical evidence, the claimant’s daily activities, allegations of pain,
aggravating factors, types of treatment received and medication taken, and ‘functional
limitations.’” Simila, 573 F.3d at 517 (quoting 20 C.F.R. § 404.1529(c)(2)-(4)).
Here, the ALJ cited ample medical and other evidence supporting the conclusion
that Plaintiff’s impairments were not as debilitating as he alleged.
regarding his hand tremors, the ALJ noted Plaintiff’s testimony that “he had tremors all
his life and that they were being worked up,” and that “he had problems gripping and
writing,” but that he is able to play cards and dominoes, take public transportation, and
keep his apartment neat, and is going to be trained for possible jobs in landscaping and
oil changing. (R. 30). She concluded that “the record fails to show he has had any
treatment for his tremors or that there is any pending workup,” and that the “record as a
whole, including claimant’s testimony, fails to establish that his tremors would cause any
restrictions in his ability to handle, feel or finger.” (R. 30). In particular, the ALJ noted
that Plaintiff “said his doctor has given him a 10-pound weight restriction, but this is
unsupported.” (Id.). She also detailed that consulting examiner Dr. Carlton determined
that Plaintiff “had normal grip strength in each hand and his grip and prehension ability
were normal as were his fine and gross motor skills,” and that he found “no obvious
signs of tremors or hand weakness.” (R. 24-25). The ALJ also noted that Plaintiff “did
not stop working due to a medical reason; he was laid off,” which further undermines his
allegations of disabling impairments. (R. 29). This was ample evidence upon which to
find that Plaintiff was not credible concerning the severity of his hand tremors.
Plaintiff also asserts that his anemia causes fatigue severe enough to limit him to
sedentary work and that the ALJ should have found him credible on this issue. But as
the Commissioner notes, there is nothing in the record linking his anemia to any
purported fatigue. While Plaintiff cites evidence that he was diagnosed with anemia, the
only evidence related to fatigue is his own statements in the August 2009 Function
Report that he “stay[s] awake most of the night” and do[es] not sleep over 2 hours at a
time” and in the March 2010 Function Report that he “takes cat naps, 15-20 minutes.”
(R. 177, 222). The ALJ acknowledged this testimony (R. 21) and recounted the limited
medical history of his treatment for anemia (R. 29). But there is nothing in the record
linking these alleged sleeping problems to his anemia, as opposed to his depression or
any other impairment. Thus, the ALJ did not err in concluding that “the record fails to
show that his anemia causes disabling fatigue or other restrictions.” (R. 30).
Finally, Plaintiff makes a cursory assertion that the ALJ erred in finding him less
than credible concerning the severity of his hip and leg pain. But he only mentions this
in the section heading in his opening brief without discussing it in his analysis (Doc. 22
at 17-18), and fails to mention it at all in his reply brief. The ALJ considered Plaintiff’s
testimony concerning leg and hip pain, but found him not fully credible given that his
allegations that “his legs go out” are “not supported in the objective medical evidence,”
and that he “alleged his hip hurts him, but he has had no treatment for that complaint.”
(R. 30). In any event, because Plaintiff has not developed this argument whatsoever,
the Court need not address it and declines to find the ALJ’s credibility determination
deficient in this respect.
For the reasons stated above, Plaintiff’s Motion for Summary Judgment [Doc. 22]
is denied and Defendant’s Motion for Summary Judgment [Doc. 34] is granted. The
Clerk is directed to enter judgment in favor of Defendant.
Dated: January 31, 2014
United States Magistrate Judge
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