Poole v. Colvin

Filing 45

MEMORANDUM Opinion and Order. Signed by the Honorable Maria Valdez on 3/28/2016: Mailed notice (lp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PATRICK POOLE,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security, 1
Defendant.

)
)
)
)
)
)
)
)
)
)
)

No. 12 C 10159
Magistrate Judge
Maria Valdez

MEMORANDUM OPINION AND ORDER
This action was brought under 42 U.S.C. § 405(g) to review the final decision
of the Commissioner of Social Security denying Plaintiff Patrick Poole’s claims for
Disability Insurance Benefits and Supplemental Security Income. The parties have
consented to the jurisdiction of the United States Magistrate Judge pursuant to 28
U.S.C. § 636(c). For the reasons that follow, Plaintiff’s motion for summary
judgment [Doc. No. 19] is denied.
BACKGROUND
I.

PROCEDURAL HISTORY
On May 1, 2010, Plaintiff filed a claim for Disability Insurance benefits.

Previously, on August 20, 2009, he had filed a claim for supplemental security
income. In both applications, Plaintiff alleged disability beginning July 30, 2009.

Carolyn W. Colvin is substituted for her predecessor, Michael J. Astrue, pursuant
to Federal Rule of Civil Procedure 25(d).
1

The claims were denied initially and upon reconsideration, after which Plaintiff
timely requested a hearing before an Administrative Law Judge (“ALJ”), which was
held on September 12, 2011. Plaintiff, who personally appeared and testified at the
hearing, was represented by counsel. Vocational expert James Breen also testified.
On October 4, 2011, the ALJ denied Plaintiff’s claims, finding him not
disabled under the Social Security Act. The Social Security Administration Appeals
Council then denied Plaintiff’s request for review, leaving the ALJ’s decision as the
final decision of the Commissioner and reviewable by the District Court under 42
U.S.C. § 405(g). See Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005).
II.

FACTUAL BACKGROUND 2
A.

Background

Plaintiff was born on June 8, 1961 and was 50 years old at the time of the
ALJ hearing. He had most recently worked part-time as a security guard, and
before that as a municipal maintenance worker and janitor. In 1983 Plaintiff was
kicked by a horse, fracturing his right wrist. (R. 259.) The break healed, but
Plaintiff experienced pain in the wrist, the severity of which increased over time. Id.
In 1994, Plaintiff underwent surgery on his wrist to remove three bones. (R. 259,
261.) Plaintiff continued to work, but ultimately stopped in 2009.
B.

Medical Evidence

In November 2009, Plaintiff was referred for an examination with Dr. M.S.
Patil to provide evidence in evaluating his application. (R. 259.). Id. At that
appointment, Plaintiff reported that he was experiencing “mild intermittent pain”
2

The following facts from the parties’ briefs are undisputed unless otherwise noted.

2

in his right wrist when lifting more than ten pounds, operating a door knob, turning
on the faucet, or squeezing a rag or cloth. Id. He reported taking Tylenol as needed.
Id. Dr. Patil reviewed an x-ray performed that same day, which he found to show
“marked deformity about the right wrist” and the absence of the removed bones,
“questionable fusion of the distal capitate with the third metacarpal,” and “a few
bony fragments” about the distal radius. (R. 262.) In his examination, Dr. Patil
noted that Plaintiff had a range of motion in his right hand that was limited to
about fifty percent of normal in all areas. (R. 261.) However, Dr. Patil also noted
that Plaintiff had grip strength of four on a one-to-five scale, that Plaintiff had only
mild difficulty with operating a door knob or squeezing, and that he showed mild
weakness in his right hand but otherwise had no difficulty with manipulative
movements. Id.
In December 2009, Dr. Marion Panepinto performed an analysis of Plaintiff’s
medical records. Dr. Panepinto noted that Plaintiff’s x-ray reflected the removal of
three bones from Plaintiff’s right wrist. (R. 266.) Dr. Panepinto also discussed Dr.
Patil’s findings, including those relating to Plaintiff’s strength, limitation of motion,
and mild weakness in his wrist. Id. Dr. Panepinto concluded that Plaintiff’s
impairments were nonsevere. Id. This determination was reviewed and affirmed by
Dr. Virgilio Pilapil in August of 2010. Dr. Pilapil noted that Plaintiff stated his pain
had increased since the prior review by Dr. Panepinto. (R. 276.) However, Dr.
Pilapil concluded that “no significant medical changes” were evident on
reconsideration, and affirmed Dr. Panepinto’s previous finding. Id.

3

On August 31, 2010, another x-ray of Plaintiff’s right wrist was performed.
(R. 335.) Dr. Krishna Parameswar, interpreting the results, concluded that the xrays “of the right hand [were] normal with no evidence of bony or joint
abnormality.” Id. (R. 337.) Dr. Parameswar also noted that there was “no evidence
of acute fracture or dislocation,” and that there was “[s]light narrowing of the
intercarpal joint” which was viewed to be “consistent with arthritic process.” Id. Dr.
Parameswar’s overall impression was of “[v]ery mild arthritic change.” Id.
In August 2010, Donald Henderson, Ph.D performed a review of Plaintiff’s
medical records from a psychiatric perspective. (R. 277-89.) While Henderson noted
that Plaintiff had not alleged any mental limitations in his initial application,
Plaintiff had subsequently indicated that he had become increasingly depressed. (R.
289.) However, Henderson noted that no treating provider had diagnosed Plaintiff
with a mental health-related impairment and that Plaintiff’s previous mental
health examinations had shown normal results. Id. Accordingly, Henderson
concluded that Plaintiff did not have a severe mental impairment. (R. 277.)
In April of 2011, Plaintiff began psychiatric treatment. (R. 305-08.) In his
initial evaluation, his mood was recorded as “[s]ad, depressed,” and he “[e]ndorsed
depressive symptoms of anhedonia; feelings of hopeless, [feeling] helpless
‘sometimes’ and worthless; decreased energy; decreased concentration; alternately
psychomotor agitation and retardation; social withdrawal; and crying spells.” (R.
307.) His affect was recorded was “[s]ad and frustrated,” but his thought content
was “appropriate,” his insight “fair,” and his judgment “[f]air to good with impulse

4

control.” Id. He was diagnosed with recurrent, moderate Major Depressive Disorder.
Id. The record reflects that Plaintiff was seen for follow-up appointments
throughout 2011. In May, he “expressed frustrations and sadness over having no
current income and subsequent lifestyle restrictions.” (R. 316.) He also reported
“fair to good sleep,” and “indicated that he socializes with neighbors frequently to
talk or to watch a ball game.” Id. In June, Plaintiff reported that he had become
“more depressed” because of the difficulty in accomplishing certain tasks due to
increased pain. (R. 311.) However, he also reported “fair sleep,” a normal appetite
with no weight change, and that he “continue[d] to socialize with family and
neighbors.” (R. 311-12.) While the notes reflected that Plaintiff “continued to be
depressed over injury, pain, and loss of financial resources with subsequent lifestyle
changes,” they also showed that he demonstrated good comprehension, fair insight,
and sound judgment. (R. 312-13.)
C.

Plaintiff’s Testimony

Plaintiff testified that he experienced constant pain in his wrist. (R. 41.) The
pain had been an issue for 15 years or so, but had increased over time. (R. 46-47.)
On a typical day, the pain was a seven or eight on a one-to-ten scale (R. 42.) He had
been prescribed Naproxen and Tramadol, which helped to ease the pain, although
the medications made him drowsy. (R. 42-43.) Plaintiff stated that he did not drive
because of the resulting pain in his wrist, but he also testified that his driver’s
license had been suspended. (R. 40.) His medical providers had suggested a wrist

5

fusion surgery, but he was afraid to undergo that procedure, even if it would help
with the pain. (R. 44.)
With regard to his functional capacity, Plaintiff testified that twisting his
wrist in particular was painful, and made it difficult for him to open doors or to
perform other similar movements. (R. 47.) He was unable to tie his shoes. (R. 4748.) He was also unable to shave himself, and instead he would have a friend shave
him. (R. 48.) The pain was also worsened by cold weather. (R. 48.) Plaintiff was able
to lift “maybe a couple of pounds” with his right hand, and 20 to 25 pounds with his
left. (R. 44.) He stated that he could stand only for 10 to 15 minutes, because he had
“bad knees.” (R. 44-45.) He also stated that he could sit for 15 to 20 minutes but
would then need to get up to stretch. (R. 45.) He had received one steroid injection
which had “helped a little,” and he also wore a splint on his wrist at all times. (R.
49.) Plaintiff also stated that he was unable sleep at all at night, although he did
not know the reason for his inability to do so. (R. 50.)
Plaintiff testified that he was seeing a psychologist because he was “always
depressed,” and had felt worthless for a long time. (R. 50.) When asked by the ALJ
why, despite his feelings, he had only recently begun to seek psychiatric treatment,
Plaintiff stated that “until I was talking to the doctor and she advised me to . . . I
just never gave it any thought . . . .” (R. 51.) The ALJ pointed out that—although he
had testified that he was unable to drive—in his self-completed report regarding
activities of daily living, Plaintiff had stated that he drove every day. (R. 51-52.)

6

Plaintiff stated that, because the report had been completed earlier—in July of
2010—that was true at the time, but it was no longer true. (R. 52.)
D.

Vocational Expert Testimony

The ALJ asked Vocational Expert (“VE”) James Breen whether a
hypothetical person with the same age, education, and work experience as Plaintiff,
and a residual functional capacity (“RFC”) limiting him to light work, and who could
use the right hand frequently and the left hand unlimitedly, could perform any of
Plaintiff’s past work. (R. 53.) The VE said that the person could perform the job of
security guard. The VE also stated that the hypothetical person could perform the
other jobs of fast food worker, mail clerk, and cashier. (R. 53.) The ALJ then further
limited the hypothetical individual to only occasional use of the right hand, which
did not alter the VE’s answers. (R. 53-54.) Plaintiff’s counsel then asked the VE if
any of the jobs would tolerate a hypothetical individual who would “doze off on the
job.” (R. 55.) The VE stated that dozing would preclude employment. (R. 55.) In
response to the attorney’s questioning, the VE also stated that—were the
hypothetical individual to require sedentary work—there would be no available jobs
because such employment would require frequent use of both arms. (R. 55-56.)
E.

ALJ Decision

The ALJ analyzed Plaintiff’s claim under the five-step process applicable to
Social Security claims. See 20 C.F.R. § 404.1520(a)(4). At step one, the ALJ found
that Plaintiff had not engaged in substantial gainful activity since his alleged onset
date of July 30, 2009. (R. 21.) At step two, the ALJ concluded that Plaintiff had the

7

severe impairments of a “history of right wrist bone removal status post right wrist
surgery.” (R. 21.) Although he analyzed the effects of Plaintiff’s major depressive
disorder, the ALJ determined that this impairment considered by itself was not
severe. (R. 22-23.) The ALJ concluded at step three that Plaintiff’s impairments,
considered alone or in combination, did not meet or medically equal a Listing. (R.
24.) The ALJ then determined that Plaintiff retained the RFC to perform light work
involving frequent use of the right hand and no limitation on use of the left hand.
(R. 24.) He noted that Plaintiff had complained of increasing pain since his original
wrist injury. (R. 25.) However, while the record demonstrated such complaints over
time, the ALJ found that Plaintiff’s corresponding treatment was conservative and
the accompanying medical testing was unremarkable. (R. 26-27.) The ALJ also
discussed the medical evaluations of record, which had both concluded that
Plaintiff’s impairments were nonsevere. (R. 27.) Although he found the opinions “to
be mostly informed and consistent with the objective medical record,” based on the
record as a whole, the ALJ nonetheless found Plaintiff’s RFC to be more limited
than the limitations suggested by the medical experts. Id.
Based on this RFC, the ALJ concluded at step four that Claimant could
perform his past relevant work as a security guard. (R. 28.) Alternatively, at step
five, the ALJ concluded that that Plaintiff could perform other jobs existing in
significant numbers in the national economy, leading to a finding that Plaintiff was
not disabled under the Social Security Act. (R. 28-29).

8

DISCUSSION
I.

ALJ LEGAL STANDARD
Under the Social Security Act, a claimant is disabled if he has an “inability 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 twelve
months.” 42 U.S.C. § 423(d)(1)(A). In order to determine whether a claimant is
disabled, the ALJ considers the following five questions in order: (1) Is the claimant
presently unemployed? (2) Does the claimant have a severe impairment? (3) Does
the impairment meet or medically equal one of a list of specific impairments
enumerated in the regulations? (4) Is the claimant unable to perform her former
occupation? and (5) Is the claimant unable to perform any other work? See 20 C.F.R.
§ 404.1520(a)(4). An affirmative answer at either step 3 or step 5 leads to a finding
that the claimant is disabled. Young v. Sec’y of Health & Human Servs., 957 F.2d
386, 389 (7th Cir. 1992). The claimant bears the burden of proof at steps 1 through
4. Id. Once the claimant shows an inability to perform past work, however, the
burden then shifts to the Commissioner to show the claimant’s ability to engage in
other work existing in significant numbers in the national economy. Id.
II.

JUDICIAL REVIEW
Section 405(g) provides in relevant part that “[t]he findings of the

Commissioner of Social Security as to any fact, if supported by substantial evidence,
shall be conclusive.” 42 U.S.C. § 405(g). Judicial review of the ALJ’s decision is

9

limited to determining whether the ALJ’s findings are supported by substantial
evidence or based upon legal error. Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir.
2000); Stevenson v. Chater, 105 F.3d 1151, 1153 (7th Cir. 1997). Substantial
evidence is “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); Skinner v.
Astrue, 478 F.3d 836, 841 (7th Cir. 2007). This 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). And, in
rendering a conclusion, an ALJ “must build a logical bridge from the evidence to his
conclusion, but he need not provide a complete written evaluation of every piece of
testimony and evidence.” Pepper v. Colvin, 712 F.3d 351, 362 (7th Cir. 2013)
(quoting Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir.2005)) (internal quotation
marks omitted).
III.

ANALYSIS
Plaintiff argues that the ALJ erred by finding that his mental impairment

was not severe, by failing to account for the results of a 2009 x-ray in determining
the severity of his impairments, and by finding his RFC to be more limited than
suggested by the medical experts of record. However, because the ALJ did not err in
any of these respects, and because his determination was supported by substantial
evidence, the decision is affirmed.

10

A.

Assessment of Plaintiff’s Mental Impairment

Plaintiff first argues that the ALJ erred when he determined that plaintiff’s
depression was not a severe impairment. At step two of the five-step analysis, the
ALJ found that—while Plaintiff’s previous wrist injury resulted in a severe
impairment—plaintiff’s mental impairment, considered by itself, was not severe.
(R. 21-22.) A severe impairment is one “which significantly limits [a claimant’s]
physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c); see
also id. § 404.1521(a) (“An impairment or combination of impairments is not severe
if it does not significantly limit your physical or mental ability to do basic work
activities.”). Citing treatment notes and test results, Plaintiff argues that “the
medical evidence and testimony of record” showed “that Mr. Poole’s mental
impairments limit his energy, his ability to concentrate, and his ability to engage
socially,” and therefore that the ALJ erred in finding those impairments were not
severe. (Pl.’s Mem. at 8.) Plaintiff’s argument, however, is unavailing.
First, the evidence that Plaintiff identifies does not in fact show what he
contends it does. With respect to the treatment records, although Plaintiff alleges
that they demonstrate that his “mental impairments limit his energy, his ability to
concentrate and his ability to engage socially,” (Pl.’s Mem. at 8), this is simply not
the case. The notes do show that, at a number of treatment sessions, Plaintiff’s
treating psychologist record Plaintiff’s mood as sad or depressed, (R. 307, 312, 316,
320), and that Plaintiff reported feelings of depression related to his inability to
work and accompanying loss of income. (R. 305, 311, 316, 319.) However, while his

11

initial assessment noted “decreased concentration” and “social withdrawal” in the
mental status examination, (R. 307), subsequent notes recorded that “[h]e continues
to socialize with friends and neighbors” on a basis described as “frequently.” (R. 312,
316.) Furthermore, nowhere aside from the initial assessment do the notes reflect
(or is Plaintiff recorded as reporting to his therapist) difficulties with concentration.
On the contrary, as the ALJ noted, (R. 22-23), Plaintiff’s thought processes were
consistently reported as “[l]ogical and relevant” or “coherent and relevant,” and he
was recorded as having good to fair insight and sound judgment. (R. 307, 313, 316.
320). The treatment notes cited by Plaintiff simply do not show the evidence he
argues required the ALJ to reach a different conclusion.
Similarly, the other piece of evidence Plaintiff cites in support of his
assertion—his scores on the Global Assessment of Functioning (GAF)—also do not
show that his impairment was necessarily severe. The GAF is a 1-to-100 scale “used
by mental health clinicians and physicians to help determine how well a person is
doing in adjusting to the psychological and other challenges of living; the higher the
score, the better he’s doing.” 3 Price v. Colvin, 794 F.3d 836, 839 (7th Cir. 2015). As
the ALJ noted, (R. 22), it is true that at his initial mental health assessment
Plaintiff scored 50 on the GAF, which corresponds to “serious symptoms” or

Although still in use at the time of Plaintiff’s evaluation, the American Psychiatric
Association has since abandoned the GAF metric “because of ‘its conceptual lack of clarity .
. . and questionable psychometrics in routine practice.’ ” Williams v. Colvin, 757 F.3d 610,
613 (7th Cir. 2014) (quoting AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL
OF MENTAL DISORDERS 16 (5th ed.2013)).
3

12

impairments. 4 However, as the ALJ also noted, a short time later (and after
minimal treatment and no medication), claimant recorded a GAF score of 60,
indicating only moderate symptoms or difficulties. 5 And a GAF score by itself is not
a determinative assessment of the extent of a claimant’s mental impairment. The
GAF measures both the severity of a subject’s symptoms and his functional level,
and “[b]ecause the ‘final GAF rating always reflects the worse of the two,’ the score
does not reflect the clinician’s opinion of functional capacity. Accordingly, ‘nowhere
do the Social Security regulations or case law require an ALJ to determine the
extent of an individual’s disability based entirely on his GAF score.’ ” Denton v.
Astrue, 596 F.3d 419, 425 (7th Cir. 2010) (quoting Wilkins v. Barnhart, 69 Fed.
Appx. 775, 780 (7th Cir.2003)). Even when considered with the treatment notes
otherwise cited by Plaintiff, he simply has not shown that the ALJ was required to
find Plaintiff’s mental impairment to be “severe” based on the record before him (a
proposition for which he does not advance any legal authority).
Furthermore, the ALJ’s decision at step 2 was supported by substantial
evidence, and this Court “will not . . . reweigh the evidence or substitute [its]

“A GAF between 41 and 50 indicates ‘Serious symptoms (e.g., suicidal ideation,
severe obsessional rituals, frequent shop-lifting) [or] any serious impairment in social,
occupational, or school functioning (e.g., no friends, unable to keep a job).’ ” Jelinek v.
Astrue, 662 F.3d 805, 807 n.1 (7th Cir. 2011) (quoting AM. PSYCHIATRIC ASS’N, DIAGNOSTIC
AND STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed. 2000)).
5 “[A] GAF between 51 and 60 reflects ‘Moderate symptoms (e.g., flat affect and
circumstantial speech, occasional panic attacks) OR moderate difficulty in social,
occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).’ ”
Jelinek, 662 F.3d at 807 n.1 (quoting AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL
MANUAL at 32).
4

13

judgment for that of the ALJ’s.” See Pepper, 712 F.3d at 361-62. 6 The ALJ found
generally that, while Plaintiff’s treatment records reflected his feelings of sadness
and hopelessness, they also demonstrated logical and relevant thought processes, a
lack of delusions or hallucinations, fair to good judgment and impulse control, and
fair insight. (R. 22.) Furthermore, Plaintiff had not been prescribed medication in
relation to his mental impairment, his treatment otherwise consisted simply of
outpatient psychotherapy, and his condition had improved during the brief period of
his treatment. (R. 22.) These findings were supported by Plaintiff’s treatment notes,
(R. 305-08, 311-13, 315-17, 319-21), which are in fact some of the same records
Plaintiff cites in support of his argument. (Pl.’s Mem. at 8.) The ALJ also
appropriately applied the “special technique” applicable to the evaluation of mental
impairments. See 20 C.F.R. § 404.1520a. He determined that, with respect to
Plaintiff’s activities of daily living, Plaintiff demonstrated no limitations based on
his self-reported ability to prepare his own meals, shop, read, watch television, and
perform other activities, as well as a lack of evidence indicating otherwise in his
treatment records. (R. 22-23.) With respect to social functioning, the ALJ also found
no limitation because Plaintiff had reported socializing frequently with his
neighbors, and again the records did not reflect any other limitations in this area.
(R. 23.) And although Plaintiff had reported depressive symptoms, the ALJ found
that he had only mild limitations with regard to concentration, persistence, or pace
While Plaintiff characterizes the ALJ’s alleged error in this respect as a legal error,
his actual argument on this point is that the ALJ’s severity conclusion was “not supported
by the medical evidence and testimony of record,” which is a factual determination. See
Stenn v. Astrue, No. 12 C 3990, 2013 WL 4011014, at *6-8 (N.D. Ill. Aug. 6, 2013)
(discussing the distinction in social security cases).
6

14

because his mental status examinations had been consistently normal and his
treatment records reflected intact remote and immediate memory, good thinking
and judgment, and no disordered thought processes. (R. 23.) Furthermore, Plaintiff
had no episodes of decompensation. (R. 23.) All of these conclusions are supported
by the record. (R. 305-08, 311-13, 315-17, 319-21.) The ALJ’s finding at step 2 was
therefore supported by substantial evidence. See Pepper, 712 F.3d at 366 (7th Cir.
2013) (affirming mental impairment as not severe where ALJ relied on claimant’s
response to medication and treatment notes which revealed “no abnormalities in
[his] insight or judgment, orientation, memory or impairment, and mood”).
Finally, even if the ALJ had erred in determining that Plaintiff’s mental
impairment was not severe at step 2, any such error would be harmless.
While an ALJ must make a determination at step 2 as to whether the claimant’s
impairment or combination of impairments in severe, “[a]s long as the ALJ
determines that the claimant has one severe impairment, the ALJ will proceed to
the remaining steps of the evaluation process. Therefore, the step two
determination of severity is ‘merely a threshold requirement.’ ” Castile v. Astrue,
617 F.3d 923, 927 (7th Cir. 2010) (quoting Hickman v. Apfel, 187 F.3d 683, 688 (7th
Cir. 1999)); see also SSR 96-3p, 1996 WL 374181, at *2. Because the severity
determination simply controls whether Plaintiff’s application as a whole will
proceed, any mistake in mischaracterizing an impairment as nonsevere at step two
“is of no consequence with respect to the outcome of the case” where the ALJ
properly considers that that impairment, together with a claimant’s other

15

impairments, in the rest of the analysis. See id.; see also Arnett v. Astrue, 676 F.3d
586, 591 (7th Cir. 2012) (“Deciding whether impairments are severe at Step 2 is a
threshold issue only; an ALJ must continue on to the remaining steps of the
evaluation process as long as there exists even one severe impairment. Here, the
ALJ categorized two impairments as severe, and so any error of omission [of a third]
was harmless.”).
That is what happened in this case. Despite finding that Plaintiff’s
depression was not in itself a severe impairment, the ALJ nonetheless considered
its effects in determining Plaintiff’s RFC, (R. 22-23, 27-28), as he was required to do.
See 20 C.F.R. § 404.1520a(d)(3). In addition to considering the treatment records as
discussed above, the ALJ also noted that Plaintiff’s depression had been
characterized by one provider as “slight.” (R. 27.) Furthermore, the ALJ noted
that—although claimant reported “always” being depressed—he waited until after
his claim had been filed prior to seeking treatment, and his explanation for the
delay was that treatment simply never “crossed his mind.” (R. 27.) These facts were
properly considered in formulating Plaintiff’s RFC, see 20 C.F.R. § 404.1545, which
Plaintiff does not separately challenge. 7 The ALJ’s RFC determination was
supported by substantial evidence, and any error at step two therefore was
Plaintiff does not put forward any argument related to the ALJ’s RFC
determination, instead framing his argument around the ALJ’s determination of severity.
(Pl.’s Mem. at 7-8.) Furthermore, all of the authorities he cites address solely the
determination of severity at step two. See SSR 96-3p, 1996 WL 374181, at *1; Nelson v.
Apfel, 210 F.3d 799, 803 (7th Cir. 2000); Johnson v. Sullivan, 922 F.2d 346, 347 (7th Cir.
1990); Salazar v. Barnhart, No. 03 C 3099, 2004 WL 2966919, at *5 (N.D. Ill. Nov. 24,
2004). And aside from the treatment notes discussed above, Plaintiff cites no evidence in
the case to support his position, nor does he address the ALJ’s discussion of his mental
impairments in formulating his RFC.
7

16

harmless. See Curvin v. Colvin, 778 F.3d 645, 649-50 (7th Cir. 2015) (“[E]ven if
there were such an error at step 2, it would have been harmless because the ALJ
properly considered all of [claimant’s] severe and nonsevere impairments, the
objective medical evidence, her symptoms, and her credibility when determining her
RFC immediately after step 3.”); see also Prochaska v. Barnhart, 454 F.3d 731, 737
(7th Cir. 2006) (affirming ALJ’s determination where “[claimant’s physician] was of
the opinion that [claimant’s] mental condition was treatable and under control, and
controllable conditions do ‘not entitle one to benefits or boost one’s entitlement by
aggravating another medical condition.’ ”) (quoting Barrett v. Barnhart, 355 F.3d
1065, 1068 (7th Cir.2004)).
B.

Evaluation of Plaintiff’s 2009 X-Ray

Plaintiff next argues that the ALJ erred by overlooking medical evidence
favorable to his claim. In his decision, the ALJ referenced the 2010 x-ray and stated
that “x-rays of the right hand resulted in normal findings with no evidence of bony
or joint abnormalities.” (R.24), Plaintiff claims that, in doing so, the ALJ ignored an
earlier x-ray which had shown otherwise. (Pl.’s Mem. at 9.) In determining
disability, “[a]n ALJ has the obligation to consider all relevant medical evidence and
cannot simply cherry-pick facts that support a finding of non-disability while
ignoring evidence that points to a disability finding.” Denton, 596 F.3d at 425.
However, “an ALJ need not mention every piece of evidence, so long he builds a
logical bridge from the evidence to his conclusion.” Id.

17

In 2009, Plaintiff underwent the first x-ray of record. In interpreting that
test, Dr. Howard Rose noted “marked deformity about the right wrist,” the absence
of the navicular, lunate, and triquetrum bones, that “the capitate articulates with
the distal radius,” and that there was “questionable fusion of the distal capitate
with the third metacarpal.” (R. 263.) Dr. Rose also noted that there was “marked
irregularity about the distal radius with a few bony fragments noted.” Id. Plaintiff
is correct that, in his opinion, the ALJ did not specifically address Dr. Rose’s
interpretation of the 2009 x-ray. Instead, he referred to a 2010 x-ray, (R. 24, 26),
from which Dr. Krishna Parameswar observed “no evidence of acute fracture or
dislocation” and “[s]light narrowing of the intercarpal joint” which the doctor viewed
as “consistent with arthritic process.” (R. 337.) Otherwise, however, Dr.
Parameswar noted “very mild arthritic change.” Id. The ALJ summarized this
evidence by stating that “x-rays of the right hand resulted in normal findings with
no evidence of bony or joint abnormalities.” (R. 26.)
Despite the fact that he did not address the earlier x-ray itself, however, the
ALJ did explicitly discuss and rely on the consultative examination of Dr. M.S.
Patil, (R. 26), as Plaintiff acknowledges. (Pl.’s Mem. at 10.) In his examination, Dr.
Patil explicitly addressed the 2009 x-ray, which he noted “revealed marked
deformity about the right wrist,” that certain bones of the wrist were not present,
and that Plaintiff demonstrated “marked irregularity about the distal radius.” (R.
262.) Dr. Patil also noted that Plaintiff’s range of motion in his right wrist was
limited by about 50 percent in all areas. (R. 261.) However, Dr. Patil provided an

18

analysis of Plaintiff’s movement in his right hand, and found only mild difficulty
using door knobs and squeezing and no difficulty in the other functional areas. (R.
261.) Dr. Patil also determined that Plaintiff exhibited only a mild degree of
weakness, that his overall grip strength was rated as a four out of five, and that
there was no demonstrated deformity of any joint. Id.
Although an ALJ may not ignore an entire line of evidence in reaching his
opinion, he also “need not mention every piece of evidence, so long he builds a
logical bridge from the evidence to his conclusion.” Denton, 596 F.3d at 425. By
relying on Dr. Patil’s evaluation—which in turn incorporated the results from the
2009 x-ray into its findings—the ALJ built such a “logical bridge” to his conclusion
as to Plaintiff’s limitations. See Michalec v. Colvin, – Fed. App’x –, No. 15-1825,
2015 WL 8526359, at *3 (7th Cir. Dec. 10, 2015) (holding no error where “[claimant]
says the ALJ should have considered a 2009 MRI . . . . In formulating [claimant]’s
residual functional capacity, however, the ALJ relied on Dr. Smith’s report, which
relied on the MRI and x-ray results”); see also Jones v. Astrue, 623 F.3d 1155, 1162
(7th Cir. 2010) (holding no error where “the ALJ focused solely on a 2003 MRI and
did not discuss a 2006 MRI” because the “failure to discuss the 2006 MRI matter[ed]
little in light of [claimant’s] treating physicians’ consistent description of her
condition as mild or benign”). The ALJ did not selectively consider the evidence in
failing to explicitly acknowledge the earlier MRI in his findings, and accordingly
there was no error on this account.

19

C.

Formulation of the RFC

Finally, Plaintiff argues that the ALJ erred by “improperly substitut[ing] his
own opinion for that of a medical expert.” (Pl.’s Mem. at 10.) He contends that—
because the ALJ found Plaintiff to have a residual functional capacity which was
more limited than that assigned by any physician—the ALJ “substituted his own
lay judgment for that of a medical expert.” Id. While Plaintiff provided some records
of sporadic treatment related to his hand, the only medical opinions of record
relating to his residual functional capacity came from state agency physicians. As
noted above, Dr. Patil concluded that—although Plaintiff’s range of motion in the
wrist was reduced—he had good grip strength, demonstrated only mild difficulty
with operating a door knob and squeezing but otherwise showed no difficulty with
manipulative movements, and demonstrated only mild weakness in his right hand.
(R. 261.) After a review of the medical evidence in the case, Dr. Panepinto concluded
that Plaintiff’s impairments were nonsevere, and accordingly did not perform a
residual functional capacity analysis, (R. 266), a decision which was affirmed by Dr.
Pilapil. (R. 276.) In his decision, however, the ALJ determined that Plaintiff’s
history of wrist injury was a severe impairment. (R. 21.) However, despite his
combination of impairments, he nonetheless found that Plaintiff was able to
perform light work with the frequent use of his right hand. (R. 24.)
Plaintiff argues that, because the ALJ found his impairments to be more
limiting than the medical opinions of record had indicated, “an evidentiary deficit
was created which the ALJ then improperly filled with his own lay opinion.” (Pl.’s

20

Mem. at 11.) In effect, Plaintiff argues that an ALJ may not find a claimant to have
an RFC which is more restricted than that ascribed to the claimant by a medical
expert. But this is incorrect. Rather than a strictly medical decision, the
determination of a claimant’s RFC “is reserved to the Commissioner.” 20 C.F.R. §
404.1527(d)(2). Accordingly, as the Seventh Circuit has specified, in formulating an
RFC “an ALJ must consider the entire record, but the ALJ is not required to rely
entirely on a particular physician’s opinion or choose between the opinions any of
the claimant’s physicians.” Schmidt v. Astrue, 496 F.3d 833, 845 (7th Cir. 2007).
Within this framework, an ALJ does not err when he finds a claimant to have
an RFC which is more limited than that ascribed by the medical experts. See
Castile, 617 F.3d at 929. In this case, it is apparent that—despite the conclusions of
the medical experts finding Plaintiff capable of more strenuous work—the ALJ
found Plaintiff’s statements as to the effects of his symptoms to be partially
credible, and on that basis found that Plaintiff’s impairments limited his RFC to an
extent greater than that specified by the medical experts but lesser than that
claimed by Plaintiff himself. (R. 27.) This is a determination that the ALJ was
permitted to make. See id. (“It was because of and not in spite of [claimant’s]
testimony that the ALJ limited her to a more restrictive residual functional capacity
finding than any physician on the record.”).
Plaintiff cites a number of cases in support of his argument, but they do not
demand reversal of the ALJ’s decision. In each case by Plaintiff, the ALJ erred by
assigning the claimant an RFC which ascribed greater abilities than those which

21

were supported by the medical evidence of record. In Suide v. Astrue, the claimant’s
treating physician had concluded that the claimant could never lift or carry more
than ten pounds and had a combination of other limitations which precluded her
from even sedentary work. See 371 F. App’x 684, 687 (7th Cir. 2010). The ALJ,
however, discounted this opinion and instead concluded that the claimant could lift
twenty pounds occasionally and could perform light work. Id. at 688. But aside from
discounting the treating physician’s opinion, the ALJ did not indicate the weight
given to any of the other evidence regarding the claimant’s functional capacities. Id.
at 690. Furthermore, the claimant had suffered a stroke between her evaluation by
the medical experts and the ALJ’s decision, and no medical expert had considered
the effect of the stroke on her functional capacity. Id. In that situation, the Seventh
Circuit found that there was an “evidentiary deficit” and remanded the case because
it was unclear “how the ALJ concluded that [the claimant] could stand or walk for
six hours a day.” Id. Similarly, in Scott v. Astrue, the Seventh Circuit faulted the
ALJ because the ALJ “asked the VE to consider what jobs would be available to [the
claimant] if she can stand for 6 hours in a regular day and lift 10 to 20 pounds, but
the ALJ did not identify any medical evidence to substantiate her belief that [the
claimant] is capable of meeting those physical requirements.” 647 F.3d 734, 740
(7th Cir. 2011). And in Barrett v. Barnhart, the Seventh Circuit found an ALJ’s RFC
determination unsupported where the ALJ found that the claimant could stand for
two hours at a time, but the only physician providing an opinion as to claimant’s
abilities “had not known about the problem with her knees” when he rendered that

22

opinion. 355 F.3d at 1066-67. In each case cited by Plaintiff, the medical evidence
supporting the ALJ’s RFC determination either did not exist or was not made clear.
Here, in contrast, the medical opinions of record supported the ALJ’s
determination because those opinions found Plaintiff to have a greater capacity than
that ultimately ascribed by the ALJ. Based on the record, both Drs. Panepinto and
Pilapil concluded that Plaintiff’s impairments were not severe and therefore did not
restrict Plaintiff’s functional capacity. Rather than simply crediting these
physicians’ opinions, however, the ALJ partially credited Plaintiff’s statements that
his symptoms limited his residual functional capacity to an extent greater than that
suggested by the medical experts’ opinions. In contrast to the cases above, then, the
ALJ’s conclusion in this case that Plaintiff was capable of performing light work
was supported by the opinions of the medical experts, who had concluded that—
rather than simply limited light work—plaintiff could perform all work.
Accordingly, there was no “evidentiary deficit,” and the ALJ did not err in his RFC
determination. See Dampeer v. Astrue, 826 F. Supp. 2d 1073, 1085 (N.D. Ill. 2011)
(“In Suide, the ALJ rejected a treating doctor’s opinion and then made an RFC
determination without considering any other medical evidence. By contrast, in the
case at bar, there is medical support for Claimant succeeding at a sedentary job.
The ALJ here accepted alternate medical evidence and incorporated several
additional limitations to give Claimant’s subjective assessments the benefit of the
doubt, ultimately arriving at an RFC that is supported by substantial evidence.”)
(citations omitted); see also Mason v. Colvin, No. 13 C 2993, 2014 WL 5475480, at *8

23

(N.D. Ill. Oct. 29, 2014); Cabrera v. Astrue, No. 10 C 4715, 2011 WL 1526734, at *12
(N.D. Ill. Apr. 20, 2011) (“Plaintiff is correct that [the RFC] is more restrictive than
the state agency consultants’ findings of no manipulative limitations whatsoever,
but the ALJ fairly credited Plaintiff’s testimony in that regard and modified the
RFC assessment accordingly.”).
Although not advancing significant argument on this point, Plaintiff also
implies that the ALJ was required to call another medical expert in order to impose
limitations on his RFC in excess of those ascribed by the medical experts of record.
In certain circumstances, an ALJ may be required to consult a medical expert
where, “ ‘in the opinion of the administrative law judge,’ new evidence might cause
the initial opinion to change.” Buckhanon ex rel. J.H. v. Astrue, 368 F. App’x 674,
679 (7th Cir. 2010) (quoting SSR 96–6p, 1996 WL 374180, at *4). However, in this
case the Commissioner had already undertaken a consultative examination of
Plaintiff’s hand in order to provide sufficient evidence for the record, see 20 C.F.R. §
1519a, and it was on the basis of this augmented record that the state agency
consultants rendered their opinions. Furthermore, no additional medical evidence
regarding Plaintiff’s wrist was introduced between the rendering of those opinions
and the ALJ’s evaluation which would have affected the doctors’ conclusions and
made an additional consultation necessary. Cf. Wilcox v. Astrue, 492 F. App’x 674,
678 (7th Cir. 2012) (suggesting ALJ’s soliciting additional medical evidence may be
appropriate where “specialized medical evidence is required but is missing from the
record, or if there is a change in condition but the current severity of the

24

impairment is not established”). And while the ALJ does have some independent
duty to develop the record as discussed above, it is nonetheless Plaintiff “who bears
the burden of proving that [he] is disabled.” Castile, 617 F.3d at 927 (7th Cir. 2010)
(citing 42 U.S.C. § 423(d)(5)(A) and 20 C.F.R. § 404.1512(a)). In this case, the ALJ
had sufficient evidence regarding plaintiff’s wrist condition, and he did not err in
failing to seek an additional medical evaluation before rendering his conclusions.
See Skinner, 478 F.3d at 844 (holding no need for additional medical opinion where
“[t]he ALJ was highlighting the lack of objective medical data to support
[claimant]’s claimed disability and the predominance in the record of [claimant]’s
own subjective complaints; he was not commenting on a gap in the medical evidence
that a consultative examination would have filled”).
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for summary judgment [Doc. No.
12] is denied. Judgment will be entered in favor of the Commissioner.

SO ORDERED.

ENTERED:

DATE:

___________________________
HON. MARIA VALDEZ
United States Magistrate Judge

March 28, 2016

25