Vota v. Michael J. Astrue

Filing 24

ORDER: For the reasons outlined, Ms. Vota's motion for summary judgment is denied [dkt. 15] and the Commissioner's motion for summary judgment is granted [dkt. 18]. Signed by the Honorable Susan E. Cox on 12/18/2013. Mailed notice (np, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PEGGY ANN VOTA,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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No. 1:13-cv-00033
Magistrate Judge Susan E. Cox

Order
For the reasons outlined, Ms. Vota’s motion for summary judgment is denied [dkt. 15] and
the Commissioner’s motion for summary judgment is granted [dkt. 18].
Statement
Claimant, Ms. Peggy Ann Vota, seeks judicial review of a final decision of the
Commissioner of the Social Security Administration (“SSA”), which denied her application for
disability insurance benefits under the Social Security Act (“the Act”) from June 1, 2010 through
April 9, 2012. On April 9, 2012, her age category changed and the Commissioner awarded her
disability benefits on that date. Here, Ms. Vota seeks to reverse the Commissioner’s final decision
or remand the case for reconsideration of benefits from June 1, 2010 to April 9, 2012. In response,
the Commissioner has filed a motion for summary judgment seeking to affirm the Commissioner’s
decision. For the reasons set forth below, Ms. Vota’s motion to remand is denied [dkt. 15] and the
Commissioner’s motion to affirm is granted [dkt. 18].

Page 1 of 27

I.

Procedural Background
On June 6, 2011, Ms. Vota filed for disability insurance benefits, alleging that she became

disabled on June 1, 2010.1 Her claim was denied initially on August 9, 2011, and again denied upon
reconsideration on January 24, 2012.2 On February 28, 2012, Ms. Vota requested a hearing by an
Administrative Law Judge (“ALJ”).3 On August 30, 2012, ALJ Patricia Witkowski Supergan
presided over a video hearing from Orland Park, Illinois.4 Following the hearing, the ALJ issued a
decision on September 7, 2012, concluding that Ms. Vota was not disabled under the Act prior to
April 9, 2012, but became disabled from that date going forward.5 The Appeals Council denied Ms.
Vota’s request for review, making the ALJ’s decision the final decision of the Commissioner.6
II.

Factual Background
Ms. Vota filed a disability claim alleging that she is disabled due to degenerative disc

disease, anxiety and depression.7 The relevant background information is limited to her employment
history, medical history, the ALJ hearing testimony, and the final ALJ decision.
A. Employment History
Ms. Vota was born April 10, 1957, and was fifty-five years old at the time of her hearing on
August 30, 2012.8 For purposes of this appeal, her available employment history is limited to less
than three years as a classroom aid at Serena Grade School.9 Ms. Vota testified at her hearing before
the ALJ that she had to take off work because of her back pain, and that played a role in the school’s
1

R. at 145. Ms. Vota originally alleged that she became disabled on June 1, 2009, but later amended her application.
R. at 75, 82.
3
R. at 89.
4
R. at 11.
5
R. at 12.
6
R. at 1.
7
R. at 14.
8
R. at 145.
9
R. at 187.
2

Page 2 of 27

decision not to rehire her.10 She testified that it was difficult to stand in one position for a long period
of time at work and difficult to clean the lunchroom tables.11 After her full time employment ended,
Ms. Vota worked part time as a classroom aid substitute at Ottawa Elementary until June 3, 2011.12
B. Ms. Vota’s Medical History
Ms. Vota’s available medical records are limited to 2008 to 2012 and demonstrate a history
of treatment for degenerative disc disease and associated back pain beginning in 2008 and a history
of treatment for anxiety and depression beginning in 2011. The discussion of her medical history
will be divided into two sections: her treating doctors, chiropractor and counselor and her treatment
and evaluations by State agency physicians and psychologists.
1. Ms. Vota’s Treaters
The available medical records show that Gary Koehn, M.D., Mark A. McVay, D.O., and
Daniel Miller, D.C. treated Ms. Vota for her degenerative disc disease and related back pain. Ms.
Vota also sought treatment with Dawn McCollum, L.C.S.W., for 11 months for depression and
anxiety.13 Dr. Koehn treated Ms. Vota for back pain and radiculopathy14 prior to the alleged onset
date of June 1, 2010.15 Dr. Koehn noted that Ms. Vota had low back pain and multi generative
bulging lumbar disc disease.16 He noted that she should limit herself to a light to light-medium
workload.17 The records indicate that Dr. Koehn treated her until February 2009.18

10

R. at 36-37.
Id.
12
R. at 177-178, 187.
13
R. at 445-469.
14
Radiculopathy is defined as a pathologic process affecting the nerves at the root level. It can cause problems and
pain in the neck from nerves being irritated or pinched. TED L. FREEMAN, D.O. ET AL., PHYSICAL MEDICINE AND
REHABILITATION BOARD REVIEW (New York: Demos Medical Publishing 2004).
15
R. at 289-296.
16
R. at 295.
17
Id.
18
Id.
11

Page 3 of 27

After Ms. Vota was injured in a car accident in March 2011, she sought treatment from Dr.
Miller, a chiropractor. Dr. Miller treated Ms. Vota for back and neck pain nearly 40 times between
April and November 2011.19 After approximately one month of treatment, Dr. Miller stated that “Ms.
Vota is progressing as expected” and “the prognosis for Ms. Vota is good at this time.”20 Throughout
treatment Dr. Miller noted that Ms. Vota had a normal gait and normal reflexes in her arms and legs,
but she had a limited range of motion in her neck and back.21 On November 16, 2011, the last visit
provided in this record, Dr. Miller opined that Ms. Vota’s progress was “moving along as expected”
but that she had not yet met her maximum medical improvement.22 Dr. Miller filled out a disability
form on Ms. Vota’s behalf, finding lumbar disc degeneration, cervical disc degeneration, cervical
segmental dysfunction, and lumbar segmental dysfunction.23 In his opinion, Ms. Vota could stand
or walk for twenty minutes at one time and could sit or stand for twenty or thirty minutes at one
time.24 He further stated that Ms. Vota was unable to lift or carry ten pounds, and needed to include
periods of walking around during an eight hour work day.25
Additionally, Ms. Vota sought treatment from Dr. McVay, her primary care provider, for
back and neck pain as well as depression and anxiety. This relationship continued for approximately
six months beginning in April 2011.26 Dr. McVay prescribed Ms. Vota a muscle relaxer and pain
medication.27 Regarding her mental health, Dr. McVay diagnosed Ms. Vota with depression and
anxiety.28 Dr. McVay adjusted her medication in August 2011 after Ms. Vota complained of
19

R. at 387-434.
R. at 389.
21
R. at 301-302.
22
R. at 434.
23
R. at 381.
24
R. at 382.
25
Id.
26
R. at 437.
27
R. at 363, 368.
28
R. at 368.
20

Page 4 of 27

financial and physical stressors.29 Dr. McVay filled out a disability form on behalf of Ms. Vota. In
this form, he noted that Ms. Vota was limited in her ability to complete a normal workday without
interruptions, ability to perform work at a constant pace, ability to get along with co-workers and
peers, ability to travel in unfamiliar places or use public transportation.30 He opined that Ms. Vota
is unsuitable for employment due to her mental health condition.31
In addition to Dr. McVay, Ms. McCollum treated Ms. Vota for her depression and anxiety.32
Ms. Vota attended approximately 23 counseling sessions with Ms. McCollum, a licensed clinical
social worker, from February to December 2011.33 Throughout counseling, they discussed
depression, anxiety, and pain management.34 During their sessions, Ms. McCollum counseled Ms.
Vota on situation stressors, such as family problems, including her recent divorce, financial
difficulties, and her pain treatment.35
2. State Agency Doctors
After applying for disability in June 2011, State agency physician Julio Pardo, M.D. and state
agency psychologists Mark B. Langgut, Ph.D and Phyllis Brister, Ph.D. evaluated Ms. Vota’s
condition. Dr. Pardo evaluated Ms. Vota’s physical impairments in July 2011.36 According to Dr.
Pardo, Ms. Vota could lift and carry twenty pounds occasionally and ten pounds frequently, could
perform light household chores, could stand for six out of eight hours at a time, could sit for six of
eight hours at a time, and could climb, balance, stoop, kneel, crouch, or crawl occasionally.37 Dr.
29

R. at 363.
R. at 355-57.
31
Id.
32
R. at 445-469.
33
Id..
34
Id.
35
Id.
36
R. at 325.
37
R. at 319-320.
30

Page 5 of 27

Pardo considered Ms. Vota’s complaints of pain, but concluded that she was capable of light work
with some postural limitations.38
Dr. Langgut, a State agency psychologist, also evaluated Ms. Vota in July 2011.39 Dr.
Langgut noted that Ms. Vota “[d]emonstrated adequate judgment, responsibility and arithmetic
reasoning skills as well as an ability to understand the effects of her actions on herself and others.”40
Upon testing, he found that Ms. Vota demonstrated difficulty with long term memory, but her short
term memory and immediate recall were intact.41 He determined that Ms. Vota’s diagnostic
considerations included dysthymic disorder, anxiety disorder with panic features, and remission of
alcohol abuse, but he deferred a final diagnosis.42
State agency psychologist Dr. Brister also reviewed Ms. Vota’s medical records in August
2011.43 Dr. Brister concluded that Ms. Vota had mild restrictions in activities of daily living and
social functioning and had moderate restrictions in concentration, persistence and pace.44 Dr. Brister
found that Ms. Vota could understand, recall and execute simple, routine tasks and could adapt to
routine changes.45
C.A. Gotway, M.D. and Lionel Hudspeth, PsyD reviewed Ms. Vota’s medical records in
January 2012 after she filed her request for reconsideration.46 After reviewing Dr. Pardo’s evaluation

38

R. at 319-320, 325.
R. at 330.
40
R. at 330.
41
R. at 329-330.
42
R. at 330.
43
R. at 342.
44
R. at 342.
45
R. at 348.
46
R. at 435-437.
39

Page 6 of 27

of Ms. Vota, Dr. Gotway agreed with and affirmed his findings.47 Likewise, Dr. Hudspeth adopted
the findings of Dr. Brister after reviewing the medical file.48
B. The Hearing Before the ALJ
At the hearing, the ALJ heard testimony from (1) Ms. Vota, (2) Wanda Valiente, a friend and
roommate of Ms. Vota, and (3) Ms. Tucker, the vocational expert.
1. Ms. Vota’s Testimony
At the hearing, Ms. Vota testified that she has had constant pain in her lower back, hip area
and leg and suffered fatigue since June 2010.49 Ms. Vota testified that she worked as a classroom
aid until May 2010, helping the teacher with various tasks such as reading and sitting with the kids
and monitoring them at recess.50 She testified that she had difficultly with standing and walking and
she had to take 15 to 18 days off of work due to her pain.51 She testified that since June 2010, she
has not worked full time.52 She testified that she worked occasionally as a substitute at Ottawa
Elementary School from August 2011 through September 2011, and has not worked since then.53
Ms. Vota testified that as of June 1, 2010, she was having constant pain in her lower back,
hip area, and right leg, and had difficulty sleeping.54 She testified that her ability to walk and stand
was affected, but did not say how long she could stand or walk at one time.55 Ms. Vota stated that
she was involved in a car accident in March 2011, which aggravated her pain and stress.56

47

R. at 437.
R. at 437.
49
R. at 37.
50
Id.
51
R. at 36-37.
52
R. at 42.
53
R. at 43-45.
54
R. at 37-38.
55
R. at 38-39.
56
R. at 40.
48

Page 7 of 27

Ms. Vota testified that she began living with Wanda Valiente in June 2012.57 She also
testified that she is capable of performing some household chores. For example, while her roommate
must bring the laundry down to the basement, Ms. Vota is able to wash and fold clothes.58 She can
participate in basic cooking, such as making sandwiches and cutting up groceries, although she may
need to nap afterwards.59
2. Wanda Valiente’s Testimony
Wanda Valiente, Ms. Vota’s roommate, also testified at the hearing. Ms. Valiente testified
that prior to living with Ms. Vota, she visited her two or three times a month to help Ms. Vota with
chores such as vacuuming.60 She testified that Ms. Vota appeared to be in pain in June 2010, the
alleged onset date of disability.61 She testified that as her roommate, she helps Ms. Vota around the
house with chores such as moving heavy laundry baskets, cleaning the floors, and vacuuming and
helps her with her grocery shopping.62
3. The Vocational Expert’s Testimony
Ms. Tucker, the vocational expert in the case, testified regarding her professional opinion
of Ms. Vota’s work abilities. Ms. Tucker explained that her position as a teacher’s aid is classified
as light, semi-skilled.63 She testified that a person of Ms. Vota’s age, educational level, and work
experience, would not be able to perform her past jobs.64 However, she testified that there are ample
other jobs that Ms. Vota would be capable of performing.65 The hypothetical posed to the vocational
57

R. at 45.
R. at 49-50.
59
R. at 50.
60
R. at 54.
61
R. at 55.
62
R. at 54.
63
R. at 62.
64
R. at 63.
65
R. at 63.
58

Page 8 of 27

expert asked if an individual of Ms. Vota’s age, education, and work experience would be able to
preform light work, could occasionally climb ramps, stairs, and scaffolds, could occasionally
balance and stoop but never kneel and crouch and crawl, and could learn by demonstration or in 30
days or less.66 In response, Ms. Tucker testified that Ms. Vota could not perform any of her past
work but she could perform many other jobs, including positions as an office helper, mail clerk, and
laborer.67
Next, she was asked about a more specific hypothetical:
Q: If I were to further limit this individual to jobs involving occasional decision
making, occasional change in work setting, no fast paced or production quotas. What
effect would that have on the number of jobs?68
In response, Ms. Tucker testified that there would be ample positions available for an
individual fitting this description.69 Lastly, she was asked: “[i]f an individual was likely to be off
task for 25% of the work day, would there be jobs?” Ms. Tucker testified that there would not be
any jobs available for this individual.70
C. The ALJ’s Decision
In an opinion issued on September 7, 2012, the ALJ concluded that Ms. Vota was not
disabled within the meaning of the Act until April 9, 2012.71 The ALJ found that Ms. Vota’s age
category changed on April 9, 2012, thereby qualifying her as a disabled person under MedicalVocational Rule 202.06 from that day going forward.72

66

Id.
R. at 63.
68
R. at 64.
69
R. at 64.
70
R. at 64.
71
R. at 22.
72
R. at 22.
67

Page 9 of 27

SSA regulations prescribe a sequential five-part test for ALJs to use in determining whether
a claimant is disabled.73 The ALJ’s first step is to consider whether the claimant is presently engaged
in any substantial gainful activity which would preclude a disability finding.74 In this case, the ALJ
determined that Ms. Vota has not engaged in any substantial gainful activity since the alleged onset
date of June 1, 2010.75
The ALJ’s second step is to consider whether the claimant has a severe impairment or
combination of impairments.76 If the claimant does not have severe impairments, she is not disabled
under the Act.77 The ALJ found that Ms. Vota had the severe impairments of degenerative disc
disease, anxiety, and depression.78
The third step is for the ALJ to consider whether the claimant’s impairments meet or equal
any impairment listed in the regulations as being so severe as to preclude gainful activity.79 In the
present case, the ALJ determined that Ms. Vota’s impairments did not meet or medically equal the
severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.80 The ALJ
found that Ms. Vota’s impairments did not satisfy the criteria under the Act.81
If the claimant’s impairment or combination of impairments do not satisfy step three, the
ALJ then considers step four, which is a two-step process. First, the ALJ determines the claimant’s
residual functional capacity (“RFC”).82 The RFC is an assessment of the maximum work-related

73

20 C.F.R. § 404.1520(a)(1).
20 C.F.R. § 404.1520(a)(4)(I).
75
R. at 13.
76
20 C.F.R. § 404.1520(a)(4)(ii).
77
Id.
78
R. at 14.
79
20 C.F.R. § 404.1520(a)(4)(iii).
80
R. at 14.
81
R. at 14 - 15.
82
20 C.F.R. § 404.1520(a)(4)(iv).
74

Page 10 of 27

activities a claimant can perform despite her impairments.83 The ALJ must first determine whether
there is an underlying medically determinable impairment–an impairment that can be shown by
medically acceptable clinical and laboratory diagnostic techniques–that could reasonably be
expected to produce claimant’s symptoms.84 If such an impairment exists, the ALJ then evaluates
the intensity, persistence, and limiting effects of a claimant’s symptoms to determine the extent to
which they limit the claimant’s functioning.85 If, after this process, the ALJ determines that the
claimant’s RFC makes her able to perform her past work, she is not found to be disabled.86
In the present case, the ALJ found that Ms. Vota has the RFC to "perform light work as
defined in 20 C.F.R. 404.1567(b) and 416.967(b) except she can occasionally climb ramps and stairs
but never ladders, ropes or scaffolds; and she can perform unskilled work tasks that can be learned
by demonstration or in 30 days or less."87 In determining Ms. Vota's credibility, the ALJ noted that
her impairments could reasonably be expected to cause her alleged symptoms.88 However, the ALJ
found that Ms. Vota’s statements concerning the intensity and persistence of her symptoms were not
credible because they were inconsistent with the RFC assessment.89
Regarding her alleged physical disabilities, the ALJ noted that Ms. Vota's medical records
indicate that she has a history of treatment for back pain prior to the alleged onset date.90 Since the
alleged onset date of June 2010, Ms. Vota’s medical records demonstrate limited and conservative
treatment of back pain by Dr. McVay, her primary care physician, and Dr. Miller, her chiropractor.91
83

20 C.F.R. § 404.1525.
S.S.R. 96-7p.
85
Id.
86
S.S.R. 96-8p.
87
R. at 15.
88
R. at 16.
89
Id.
90
Id.
91
Id.
84

Page 11 of 27

According to the ALJ, Ms. Vota’s medical records did not demonstrate “significant treatment for
back and neck pain in 2010.”92
The ALJ discussed Dr. McVay and Dr. Miller’s treatment of Ms. Vota in 2011. The ALJ
noted that Ms. Vota saw Dr. McVay after her car accident in March 2011, and he prescribed her pain
medication and muscle relaxers.93 The ALJ further noted that Dr. Miller’s examination of Ms. Vota
in April 2011 described her gait and upper and lower extremities’ reflexes as normal, but described
her spinal range of motion as limited.94 The ALJ stated that by May 2011, Ms. Vota reported
improvement in her neck and back pain, and was able to ride a bicycle without difficulty in June
2011.95 The ALJ found that Ms. Vota received regular chiropractic care and reported fluctuating
severity in her pain, and that her pain only somewhat affected her daily activities. The ALJ found
that "the medical evidence does not indicate that [Ms. Vota] is unable to engage in all work
activities,” even though she has undergone routine and conservative treatment for back and neck
pain.96 The ALJ accommodated Ms. Vota's alleged difficulty concentrating due to physical pain by
limiting her unskilled work tasks that can be learned by demonstration in 30 days or less.97 The ALJ
determined that the aforementioned medical records and evidence establishes that Ms. Vota would
overall be capable of performing light, unskilled work on a sustained basis with some additional
limitations.98
Regarding mental health impairments, the ALJ noted that Ms. Vota’s medical records reveal
a history of depression and anxiety prior to the alleged onset date that was treated by medication.99
92

Id.
Id.
94
Id.
95
Id.
96
R. at 17.
97
Id.
98
R. at 16.
99
R. at 17.
93

Page 12 of 27

The ALJ considered her treatment after the alleged onset date, which consisted of periods of
counseling and medication prescribed by Dr. McVay.100 The ALJ noted that, according to the
medical records, Ms. Vota’s reported symptoms of depression and anxiety were generally related
to situational stressors.101 She noted that Ms. Vota attended counseling sessions with Ms. McCollum,
a licensed clinical social worker, to discuss situational stressors such as family relationship issues,
and how her pain affected her psychological state.102 The ALJ noted that in her July 2011
consultation with Dr. Langgut, the state agency psychologist, Ms. Vota reported that she only had
symptoms on some days, her activity level was normal, and her emotions were consistent with her
thoughts.103 She further considered Dr. Langgut’s findings upon testing, which revealed Ms. Vota’s
immediate recall and short term memory were intact, even though she exhibited difficulty with long
term memory.104The ALJ found that, based on these considerations, Ms. Vota sought treatment for
her mental health after the alleged onset date, but the medical records only revealed a few clinical
abnormalities and symptoms associated with situational stressors.105 Thus, the ALJ accommodated
these mental health impairments and symptoms by limiting her to unskilled work tasks that can be
learned by demonstration in 30 days or less.106
In addition to the medical evidence, the ALJ considered Ms. Vota’s daily living situation.
The ALJ noted that in 2011, Ms. Vota could perform various tasks on her own, including laundry,
dusting, preparing simple meals such as sandwiches, driving, and she could even ride her own

100

Id.
Id.
102
R. at 18.
103
Id.
104
Id.
105
Id.
106
Id.
101

Page 13 of 27

bicycle.107 She noted that Ms. Vota needed assistance with tasks such as vacuuming, carrying
groceries, doing yard work, and making her bed.108
Next, in the ALJ's discussion of the opinion evidence, she gave great weight to the opinions
of the State agency medical consultants and psychological consultants.109 Specifically, the ALJ gave
great weight to the opinion that Ms. Vota can occasionally lift and carry 20 pounds, frequently lift
and carry 10 pounds, can stand and walk for a total of six hours and sit for a total of six hours in an
eight hour work day, and to the opinion that.110 Ms. Vota can occasionally climb ramps, stairs,
ladders, ropes, kneel, balance, stoop and crouch.111 The ALJ afforded their opinions such weight
because their opinions were supported by the medical evidence which showed “routine and
conservative treatment for the claimant’s back and neck pain.”112
Similarly, she gave great weight to the State agency psychological consultants’ opinions that
Ms. Vota had mild limitations in her ability to understand, remember and carry out detailed
instructions, and to work with others without being distracted by them.113 The ALJ gave their
opinions such weight because the opinions were generally supported by Ms. Vota’s mental health
treatment and evaluations received at the initial and reconsideration levels.114 The ALJ noted that
the records received at the hearing level did not support any further limitations to her mental
abilities.115
The ALJ gave some weight to the opinions of Dr. McVay, Ms. Vota's primary care
107

R. at 19.
Id.
109
Id.
110
Id.
111
Id.
112
Id.
113
Id.
114
Id.
115
Id.
108

Page 14 of 27

physician, and Dr. Miller, Ms. Vota's treating chiropractor.116 The ALJ afforded Dr. McVay some
weight because his treatment records did not support the extensive limitations that he offered in the
disability form he filled out on behalf of Ms. Vota.117 The ALJ noted that Dr. McVay’s records did
not generally include abnormal psychiatric clinical findings, nor did her counseling notes support
such extensive limitations.118
The ALJ also gave some weight to the opinion of Dr. Miller for three reasons. First, Dr.
Miller is a chiropractor, which is not an acceptable medical source whose opinions may be afforded
controlling weight.119 Second, the medical evidence “[did] not support limitations of standing for
only 20 to 30 minutes at a time or less and that she needs to change positions every 20 to 30 minutes
for 10 to 15 minutes.”120 Finally, the medical evidence documents only routine and conservative
treatment of Ms. Vota’s back and neck pain.121
The ALJ considered but gave little weight to Wanda Valiente’s testimony. The ALJ noted
that the medical evidence indicated that Ms. Vota was able to perform work at the light exertional
level.122 The ALJ stated “[t]o the extent that Ms. Valiente opine[d] that the claimant is further
limited, that opinion is not supported by the evidence as a whole.”123 The ALJ also gave some weight
to Rebecca Pagliano, Ms. Vota’s daughter.124 Again, the ALJ noted that the evidence supported a
finding that Ms. Vota is limited to performing light work with some additional limitations, and the

116

R. at 20.
Id.
118
Id.
119
Id.; see C.F.R. 404.1513(a), 416.913(a) (not listing chiropractors as an acceptable medical source, but stating that
an ALJ may use chiropractor’s notes to show severity of the impairment).
120
R. at 20.
121
Id.
122
R. at 20.
123
Id.
124
Id.
117

Page 15 of 27

evidence does not support a finding that she requires additional limitations.125
In the final step of this analysis, the ALJ must determine whether the claimant is able to do
any other work considering her RFC, age, education and work experience.126 If the claimant is not
able to do other work and meets the duration requirement, she is disabled.127
The ALJ found that since June 1, 2010, Ms. Vota’s past relevant work exceeded her RFC.128
However, the ALJ found that prior to April 9, 2012, Ms. Vota was capable of making a successful
adjustment to other work that existed in significant numbers in the national economy.129 The ALJ
considered the testimony of the vocational expert, who opined there were a significant number of
positions available that Ms. Vota could perform.130 Accordingly, the ALJ determined that prior to
April 9, 2012, Ms. Vota was “not disabled.”131 The ALJ noted that beginning on April 9, 2012, Ms.
Vota’s age category changed and a finding of “disabled” was reached by direct application of
Medical-Vocational Rule 202.06.132
III.

Standard of Review
The Court must sustain the Commissioner’s findings of fact if they are supported by

substantial evidence and are free of legal error.133 Substantial evidence is relevant evidence that a
reasonable mind might accept as adequate to support a conclusion.134 The standard of review is
deferential, but the reviewing court must conduct a critical review of the evidence before affirming

125

R. at 21.
20 C.F.R. 404.1520(g).
127
20 C.F.R. 404.1520(g).
128
R. at 21.
129
R. at 22.
130
R. at 22.
131
R. at 22.
132
R. at 22.
133
42 U.S.C. § 405(g).
134
McKinzey v. Astrue, 641 F.3d 884, 889 (7th Cir. 2011).
126

Page 16 of 27

the Commissioner’s decision.135 Where conflicting evidence allows reasonable minds to differ, the
responsibility for determining whether a plaintiff is disabled falls upon the Commissioner and not
the Court.136 Although the ALJ need not address every piece of evidence or testimony presented, she
must adequately discuss the issues and build a logical bridge from the evidence to her conclusions.137
The Court will conduct a critical review of the evidence and will not uphold the ALJ’s decision if
it lacks evidentiary support or if the Commissioner applied an erroneous legal standard.138
IV.

Analysis
Ms. Vota argues that this Court should reverse and remand the decision of the ALJ because

the ALJ: (1) improperly weighed the opinions of two of Ms. Vota’s treaters; (2) failed to consider
all the limitations noted in her medical records; and (3) unfairly listed Ms. Vota’s limitations in the
hypothetical to the vocational expert, Ms. Tucker. This court finds no error on the part of the ALJ
with respect to each of these arguments.
A. The ALJ’s Consideration of Dr. McVay’s and Dr. Miller’s Opinions
Ms. Vota first argues that the ALJ failed to give adequate weight to the opinions of two of
Ms. Vota’s treaters: Dr. McVay and Dr. Miller.139 Ms. Vota also argues that the ALJ failed to give
adequate reasons for rejecting these doctor’s opinions.140
The ALJ may consider several factors in determining how much weight to afford the opinion,
including: (a) the length, nature, and extent of the physician and patient’s treatment relationship, (b)
whether the physician specializes in the condition at issue, and (c) whether the opinion is supported

135

Eichstadt v. Astrue, 534 F.3d 663, 665 (7th Cir. 2008).
Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir. 1990).
137
Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010).
138
Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000).
139
Vota Memo. in Support, p. 13, dkt. 16.
140
Vota Memo. in Support, p. 15, dkt. 16.
136

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with sufficient explanation.141 If, after considering these factors, the ALJ decides to discount the
physician’s opinion, the decision will stand so long as the ALJ “minimally articulate[d]” her reasons
- a very deferential standard that courts have deemed “lax.”142 For the reasons explained below, we
find that the ALJ adequately considered these factors in deciding to afford the State agency doctors’
opinions more weight than Ms. Vota’s treaters.143
(1) Weight given to Dr. McVay’s Opinion
(a) The length, nature and extent of Dr. McVay and Ms. Vota’s treatment relationship
The medical records affirm the ALJ’s statement that Dr. McVay treated Ms. Vota for her
back and neck pain only five times, and for only six months, in 2011 for the alleged disability
impairments relevant to this appeal.144 As the Plaintiff points out, he treated her in 2007 as her
primary care physician.145 However, this is prior to the alleged onset date of disability and that
treatment was not for the alleged impairments relevant to her disability claim.146
(b) Whether Dr. McVay specializes in the condition at issue
The ALJ noted that Dr. McVay is a primary care physician.147 Because Dr. McVay is not a
specialist in the claimed impairments - specifically degenerative disc disease, back pain, anxiety and
depression - this factor does not weigh in Ms. Vota’s favor.148 Accordingly, this is supportive of the

141

20 C.F.R. 404.1527(c).
Berger v. Astrue, 516 F.3d 539, 545 (7th Cir. 2008) (quoting Rice v. Barnhart, 384 F.3d 363, 372 (7th Cir.
2004)); 20 C.F.R. 404.1527(d)(2, 3, 5).
143
See Rice v. Barnhart, 384 F.3d 363, 371 (7th Cir. 2004) (stating that an ALJ must “minimally articulate” his or
her justification for rejecting or accepting evidence in disability findings).
144
R. at 16, 362-76.
145
Vota Memo. in Support, p. 14, dkt. 16.
146
R. at 362.
147
R. at 16.
148
See Elder, 529 F.3d at 415-16 (affirming ALJ’s decision to not afford treating physician substantial weight where
treater was not a specialist in alleged impairment of fibromyalgia).
142

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ALJ’s decision to only afford Dr. McVay some weight.149
(c) Whether the opinion is supported with sufficient explanation
The ALJ stated that she gave only “some weight” to Dr. McVay’s conclusions. In a disability
form filled out for Ms. Vota, Dr. McVay stated that she was “unsuitable for employment” and had
numerous moderate limitations.150 The ALJ stated that she gave only some weight to this opinion
because, first, Dr. McVay’s previous treatment records did not support the extensive physical or
mental limitations he listed in the disability form and, second, the counseling notes from Ms.
McCollum, Ms. Vota’s counselor, did not support such extensive limitations.151
Dr. McVay’s medical records revealed that Ms. Vota had various situational stressors and
her condition was treated with prescription medication.152 He did not describe any other extensive
treatment nor did he include limitations in his treatment notes.153 Further, the lumbar spine x-ray
reviewed by Dr. McVay on September 20, 2011 states “no acute abnormality demonstrated.”154
Additionally, as the ALJ noted, Ms. McCollom treated Ms. Vota for situational stressors, such as
her family problems, financial situation, and pain treatment.155 But Ms. McCollum did not describe
the need for the extensive limitations that Dr. McVay offered in the disability report.156
Pursuant to this factor, Ms. Vota also argues that Dr. McVay’s opinions are supported by two
of the State doctors, Dr. Langgut and Dr. Brister.157 But she does not detail how Dr. McVay’s
149

See id.; see also 20 C.F.R. 404.1527(d)(5) (“[w]e generally give more weight to the opinion of a specialist about
medical issues related to his or her area of specialty than to the opinion of a source who is not a specialist.”).
150
R. at 355-57.
151
R. at 20; see Ketelboeter v. Astrue, 550 F.3d 620, 625 (7th Cir. 2008) (citing 20 C.F.R. 404.1527(d)(2)) (“[A]
treating physician's opinion concerning the nature and severity of a claimant's injuries receives controlling weight
only when it is ‘well-supported by medically acceptable clinical and laboratory diagnostic techniques’ and is
‘consistent with substantial evidence in the record.’” ).
152
R. at 363.
153
R. at 363-368.
154
R. at 365.
155
See R. at 445-469.
156
Id.
157
Vota Memo. in Support, p. 14, dkt. 16.

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opinions are consistent with these other doctor’s reports.158 We will, however, briefly make the
comparison. Dr. Languut did not find that Ms. Vota was unsuitable for employment but instead
noted that Ms. Vota had adequate judgment, responsibility and reasoning skills, and was only
depressed on some days.159 Similarly, in contrast to Dr. McVay’s findings that Ms. Vota was
significantly limited in her ability to work, Dr. Brister concluded that Ms. Vota was not significantly
limited in nearly all tasks involving understanding and memory, sustained concentration and
persistence, and social interaction and adaptation.160 Accordingly, we find no error on the part of
the ALJ with respect to this point.161
(2) Weight given to Dr. Miller’s Opinion
Similarly, the ALJ considered these same three factors in affording some weight to Dr.
Miller.
(a) The length, nature and extent of Dr. Miller and Ms. Vota’s treatment relationship
In affording Dr. Miller’s opinion only some weight, the ALJ reasoned that Dr. Miller’s
medical records reveal only routine and conservative treatment of Ms. Vota’s back and neck pain.162
But Ms. Vota argues that the ALJ did not consider that Dr. Miller treated her 44 times, that he
examined her twice a week ,and took x-rays and MRIs when he examined her.163 However, the ALJ
discussed in detail Dr. Miller’s treatment of Ms. Vota.164 In fact, the ALJ noted that Ms. Vota began
treatment with Dr. Miller in April 2011 and that in July 2011, Dr. Miller reduced treatment sessions

158

Id.
R. at 328-30.
160
R. at 346-47.
161
See Rice, 384 F.3d at 371 (stating that an ALJ must “minimally articulate” his or her justification for rejecting or
accepting evidence in disability findings).
162
R. at 20.
163
Vota Memo. in Support, p. 15, dkt. 16.
164
R. at 16-17.
159

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from three times a week to twice a week due to Ms. Vota’s improvements.165 As the ALJ noted, the
records demonstrated that Ms. Vota only sought treatment with Dr. Miller in April 2011, after she
was injured in a car accident and nearly a year after the alleged onset date of disability.166
(b) Whether Dr. Miller specializes in the condition at issue
Next, the ALJ reasoned that Dr. Miller is a chiropractor, which is not an acceptable medical
source whose opinions may be afforded controlling weight.167 As Ms. Vota points out, an ALJ may
use evidence from chiropractors to show the severity of the claimant’s impairments. Johnson v.
Astrue is instructive because there the plaintiff, like Ms. Vota, challenged the ALJ’s decision to
afford the chiropractor only some weight.168 But the court in Johnson noted that even though the
regulations allow the ALJ to consider a chiropractor’s opinion in determining the severity of the
claimant’s impairments, “the ALJ has discretion to determine the appropriate weight to be accorded
to that opinion.”169 The court held that it could not question the ALJ’s determination as to the
chiropractor because the other medical evidence supported the ALJ’s decision.170 Just as the court
in Johnson could not question the ALJ’s determination, we are hesitant to question the ALJ’s
decision to afford only some weight to Dr. Miller’s opinion. As in that case, here the ALJ relied on
other, additional, evidence to support her decision.171

(c) Whether the opinion is supported with sufficient explanation

165

R. at 17.
R. at 16, 295.
167
R. at 20.
168
No. 06 C 6448, 2010 WL 4625549, at *3 (N.D. Ill. Nov. 2, 2010).
169
Id.; see 42 C.F.R. 404.1513(d)(1).
170
Johnson, No. 06 C 6448, 2010 WL 4625549, at *3.
171
See id. (“[t]he ALJ has discretion to determine the appropriate weight to be accorded to [the chiropractor’s]
opinion.”); c.f. Henderson v. Apfel, 179 F.3d 507, 514 (7th Cir. 1999) (noting that an ALJ may not completely ignore
an entire line of evidence contrary to his or her findings).
166

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In addressing this factor, the ALJ reasoned that the medical evidence “[did] not support
limitations of standing for only 20 to 30 minutes at a time or less and that she needs to change
positions every 20 to 30 minutes for 10 to 15 minutes.”172 The ALJ also emphasized that Ms. Vota
continued to report improvement at subsequent treatment sessions and was able to ride her bike by
June 2011.173 Dr. Miller’s reports affirm the ALJ’s reasoning; they explain Ms. Vota’s improvements
and state that she could ride a bike in June 2010.174 Further, as the ALJ noted, the medical records
show that Ms. Vota had limited rage of motion in her neck and back but a normal gait and normal
reflexes in her legs and arms.175 The ALJ also noted, and the records confirm, that Dr. Miller’s
opinion was inconsistent with a spinal MRI in 2011 which revealed only mild abnormalities.176
Plaintiff argues that Dr. Miller’s opinion is consistent with Dr. Koehn’s reports, and alleges
that the ALJ failed to consider this doctor’s reports in her findings.177 But the ALJ considered Dr.
Koehn’s reports in her decision. And, as the Commission points out, the reports are not consistent
with Dr. Miller’s opinion.178 Dr. Koehn’s MRI completed in 2008 reveals only mild abnormalities
and the 2009 report provides that Ms. Vota has the functional capacity for light to light medium
work.179 Thus, Dr. Koehn’s reports do not support Dr. Miller’s opinion that Ms. Vota had greater
limitations nor do they discredit the ALJ’s decision to give Dr. Miller’s opinion only some weight.
B. The ALJ’s Consideration of State Agency Opinions
Next, Ms. Vota contends that in her RFC determination, the ALJ ignored or improperly
172

R. at 20.
R. at 20.
174
R. at 308-314.
175
R. at 16, 301-302.
176
R. at 17, 365-367; see Butera v. Apfel, 173 F.3d 1049, 1056-57 (7th Cir. 1999) (affirming the ALJ’s decision
which reasoned, in part, that the medical signs and findings, including x-rays and MRIs, failed to support the
treater’s opinion).
177
Vota Memo. in Support, p. 15, dkt. 16.
178
R. at 16.
179
R. at 293-296; Commissioner Memo. in Support, p. 5, dkt. 19.
173

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credited certain findings from three State agency reviewers, Dr. Pardo, Dr. Brister and Dr.
Langgut.180 First, regarding Dr. Pardo, Ms. Vota argues that the ALJ should not have relied on Dr.
Pardo’s notation that Ms. Vota was able to perform light household chores.181 Contrary to Ms.
Vota’s assertion, the ALJ did not rely on Dr. Pardo’s remark that Ms. Vota was able to perform light
household chores when she evaluated his opinion.182 While the ALJ mentioned that Ms. Vota was
able to perform light household chores, she did not mention that in the part of her opinion where she
gave Dr. Pardo’s opinion great weight.183
Ms. Vota also argues that the ALJ ignored Dr. Pardo’s notation that her pain complaints
restrict her movements.184 Even though Dr. Pardo noted that Ms. Vota’s pain restricted her
movements, he ultimately concluded that Ms. Vota was capable of light work with some postural
limitations.185 Additionally, both Dr. Gotway and Dr. Hudspeth agreed with Dr. Pardo’s opinion that
Ms. Vota was capable of light work with some postural limitations.186
Ms. Vota also contends that the only support for the ALJ’s finding is the checking of boxes
by Dr. Pardo to establish her exertional limitations,187 citing to Criner v. Barnhart.188 The court in
Criner held that “reports from nonexamining physicians cannot, by themselves, trump the findings
from treating sources.”189 In that case, the only medical evidence that contradicted the treating
physician’s opinion was the opinion of a reviewing state agency physician’s report.190 But here, Dr.

180

Vota Memo. in Support, p. 11-13, dkt. 16.
Id at 11-12.
182
R. at 19.
183
R. at 19.
184
Vota Memo. in Support, p. 11-12, dkt. 16.
185
R. at 319-25.
186
R. at 435-437.
187
Vota Memo. in Support, p. 12, dkt. 16; Vota Reply Brief, p. 2, dkt. 21.
188
208 F. Supp. 2d 937 (N.D. Ill. 2002).
189
208 F. Supp. 2d at 954 (emphasis added).
190
Id.
181

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Pardo evaluated Ms. Vota and did not simply review her records.191 Further, Dr. Pardo’s report is
supported by the reports of Dr. Gotway and Dr. Hudspeth, which also contradict the treater’s
opinion. His report does not, “by itself,” trump the findings from treating sources.192
Second, Ms. Vota contends that the ALJ ignored Dr. Brister’s indication that Ms. Vota has
limitations in completion of tasks, memory and concentration193 when, in fact, the ALJ considered
these limitations in her RFC determination. Dr. Brister opined that Ms. Vota had mild restrictions
in daily living activities and social functioning and had moderate limitations in concentration,
persistence and pace.194 The ALJ emphasized that Dr. Langgut’s testing revealed that Ms. Vota
exhibited difficulty with long term memory, but that her immediate recall and short term memory
were intact.195 The ALJ noted that, similarly, Dr. Brister found that Ms. Vota could recall,
understand, and execute simple operations of a routine and semi-skilled nature and adapt to routine
changes.196 In light of these considerations, the ALJ appropriately adopted the opinion of Dr. Brister,
and accommodated for any limitations in concentration by reducing the RFC to unskilled work that
could be learned by demonstration in 30 days or less.197
Finally, Ms. Vota also contends that the ALJ ignored the findings of Dr. Langgut. Although
the ALJ does not mention Dr. Langgut by name, she clearly discusses this doctor’s findings in her
opinion and cites to his medical records. For example, she noted that “[a]t a July 2011 psychological
consultative examination, the claimant denied daily symptoms of depression. Rather, she reported
that she had symptoms only on some days. During the evaluation, her emotions were consistent with
191

R. at 325 (records reflecting that Dr. Pardo evaluated Ms. Vota in July 2011); see Criner, 208 F. Supp. 2d at 954
(noting that the treater in Criner was a nonexamining physician, rather than an examining physician).
192
R. at 325 (records reflecting that Dr. Pardo evaluated Ms. Vota in July 2011).
193
Vota Memo. in Support, p. 12, dkt. 16.
194
R. at 14, 19, 342.
195
R. at 14, 19.
196
R. at 18.
197
R. at 18.

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her thoughts, and her activity level was normal.”198 Ms. Vota asserts that the ALJ did not mention
Dr. Langgut’s findings that Ms. Vota had fatigue and anxiety.199 But the ALJ noted that Dr. Langgut
“diagnosed the claimant with dysthymic disorder and anxiety with panic features.”200 The ALJ also
acknowledged that Ms. Vota testified that she had fatigue at her hearing.201 Even so, Ms. Vota never
listed fatigue as a physical or mental condition that limited her ability to work in her disability
application, nor did she mention her alleged fatigue at the hearing before the ALJ.202
C. The Vocational Expert’s Hypothetical
Lastly, Ms. Vota contends that the ALJ’s hypothetical posed to the vocational expert did not
fully account for all of Ms. Vota’s disabilities, including the moderate limitations in Dr. Brister’s
opinions, Dr. Langgut’s mention of fatigue, and Dr. McVay’s pain restrictions.203 Ms. Vota argues
that the ALJ’s failure to accommodate these limitations was improper.204
But the Seventh Circuit has found that where the ALJ expressly incorporates all of the RFC
findings into the hypothetical posed to the vocational expert, the hypothetical is proper.205 The ALJ
need only include the limitations that were supported by the medical evidence in the record.206
Likewise, the ALJ need only include limitations and impairments that she accepts as credible.207
We reject Ms. Vota’s argument because the hypothetical question posed to the vocational

198

R. at 18.
Vota Memo. in Support, p. 13, dkt. 16.
200
R. at 18.
201
R. at 15.
202
R. at 32-52, 176.
203
Vota Memo. in Support, p. 15, dkt. 16.
204
Id.
205
O’Connor-Spinner v. Astrue, 627 F.3d 614, 619 (7th Cir. 2010).
206
Halsell v. Astrue, 357 Fed. Appx. 717, 723 (7th Cir. 2009).
207
Similia v. Astrue, 573 F.3d 503, 521 (7th Cir. 2009).
199

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expert, Ms. Tucker, mirrored the ALJ’s RFC determination:208
Q: I ask that you assume an individual of the claimant’s age, education and work
experience. An individual would have the residual functional capacity to perform
light work as defined in the regulations. Individual could occasionally climb ramps
and stairs, ropes and scaffolds. Individual could occasionally balance and stoop, but
never kneel and crouch and crawl. Individual, [INAUDIBLE] 30 days or less. Such
an individual would be able to perform the claimant’s [sic] past relevant work?209
Even if this Court found that the hypothetical above did not account for Ms. Vota’s
limitations, the next hypothetical question posed to Ms. Tucker again accounted for her mental and
physical limitations: “[i]f I were to further limit this individual to jobs involving occasional decision
making, occasional change in work setting, no fast paced or production quotas. What effect would
that have on the number of jobs?”210 While this would reduce the number of available positions quite
drastically, there would still be a substantial number of positions available for a person with those
limitations.211 Therefore, because the hypothetical questions posed to the vocational expert satisfied
the Seventh Circuit’s requirement that they incorporate the ALJ’s RFC, we find no reversible error.

208

The ALJ held that Ms. Vota has the RFC to “perform light work as denied in 20 C.F.R. 404.1567(b) and
416.967(b) except she can occasionally climb ramps and stairs but never ladders, ropes or scaffolds; and she can
perform unskilled work tasks that can be learned by demonstration or in 30 days or less.” R. at 15.
209
R. at 63.
210
R. at 64.
211
R. at 64.

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V.

Conclusion
For the reasons outlined, Ms. Vota’s motion for summary judgment is denied [dkt. 15] and

the Commissioner’s motion for summary judgment is granted [dkt. 18].

IT IS SO ORDERED.
ENTERED: December 18, 2013

__________________________________
UNITED STATES MAGISTRATE JUDGE
Susan E. Cox

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