Parker v. Astrue

Filing 21

ORDER: For the reasons outlined in the order, Ms. Parker's motion for summary judgment for reversal or remand 17 is denied. Signed by the Honorable Susan E. Cox on 5/12/2014. Mailed notice (np, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DONNA S. PARKER,
)
)
Plaintiff,
)
No. 13-cv-00114
)
CAROLYN W. COLVIN, Acting
)
Magistrate Judge Susan E. Cox
Commissioner of Social Security,
)
)
Defendant.
)

Order
For the reasons outlined in the attached Order, Ms. Parker’s motion for summary judgment
for reversal or remand [dkt. 17] is denied.
Statement

Plaintiff, Donna S. Parker, seeks judicial review of a final decision of the Commissioner of
the Social Security Administration (“SSA”) denying her application for a period of disability and
disability insurance benefits (“DIB”) and for supplemental security income (“SSI”) under the
Social Security Act (“the Act”). Ms. Parker has filed a motion for summary judgment, seeking to
reverse the Commissioner’s final decision or remand the case for consideration of the issues raised
herein. For the reasons set forth below, Ms. Parker’s motion for summary judgment reversal or
remand is denied [dkt. 17].
I.

Procedural History
Ms. Parker filed concurrent applications for a period of disability and DIB and for SSI on

March 9, 2010, alleging that she became disabled on February 6, 2008. 1 Her claim was denied

1

R. at 20.

Page 1 of 28

initially on June 18, 2010, and again upon reconsideration on September 21, 2010. 2 On September
24, 2010, Ms. Parker submitted a written request for a hearing before an Administrative Law Judge
(“ALJ”). 3 A hearing presided over by ALJ Patricia A. Bucci was held on June 20, 2011 in
Chicago, Illinois. 4 Following the hearing, the ALJ issued a partially favorable decision on August
11, 2011, concluding that Ms. Parker has been disabled under sections 216(i), 223(d), and
11614(a)(3)(A) of the Act beginning on December 7, 2010. 5 The Appeals Council denied
Ms. Parker’s request to review the ALJ’s denial of DIB and SSI for the period between her alleged
disability onset date on February 6, 2008 and December 7, 2010, thus, the ALJ’s decision stands as
the final decision of the Commissioner. 6 Ms. Parker filed the instant action on January 7, 2013.
II.

Factual Background
The facts set forth under this section are derived from the administrative record. We begin

with an overview of Ms. Parker’s background and relevant medical history. We then summarize
the testimony given at the ALJ hearing before finally examining the ALJ’s decision. We focus
particularly on the period for which the ALJ denied DIB and SSI to Ms. Parker, between February
6, 2008 and December 7, 2010.
A.

Ms. Parker’s Background and Relevant Medical History

Ms. Parker was born December 8, 1960. 7 She was forty-nine years old when she applied
for DIB and SSI. 8 In her Adult Disability Report, Ms. Parker listed arthritis in her hands, legs and
knees, and degenerative joint disease in her knees as limiting her ability to work because she is in

2
3
4
5
6
7
8

Id.
Id.
Id.
R. at 29-30.
R. at 1-3.
R. at 134.
Id.

Page 2 of 28

constant pain and cannot stand, walk or sit for very long. 9 She further noted that she has suffered
from mild and intermittent asthma since 2005, although she has never been hospitalized because of
it. 10 Ms. Parker is divorced with no minor children. 11 She stands 5’5” and weighs approximately
230 pounds, which corresponds to a body mass index (BMI) of 38.3 and a categorization of Level
II obesity. 12 Ms. Parker claims that her knee pain stems from a slip and fall she suffered at work in
January 2004. 13
Because of her medical conditions, Ms. Parker stopped working on February 6, 2008, the
alleged date of onset of her disability. 14 Ms. Parker partially completed the tenth grade but did not
obtain her GED. 15 Her recent employment history includes working as a mail carrier for the U.S.
Postal Service from October 1994 until November 2008. 16 Ms. Parker testified that her knee gave
out in February 2008, which made her unable to complete her mail route. 17 She received workers’
compensation benefits from February 2008 until October 2008.

18

Numerous healthcare

professionals treated Ms. Parker during the relevant time period, therefore, our review will be
configured according to her treatment providers.
1.

Harold Pye, M.D.

Ms. Parker was under the care of Harold Pye, M.D. from January 31, 2008 until October
31, 2008. 19 On February 7, 2008, Dr. Pye ordered a magnetic resonance imaging scan (“MRI”) of

9

R. at 165.
R. at 297.
11
R. at 135.
12
R. at 23, 165.
13
R. at 25.
14
Id.
15
R. at 46.
16
R. at 184.
17
R. at 46.
18
R. at 43, 142, 226.
19
R. at 238.
10

Page 3 of 28

her right knee and an X-Ray of both of her knees. 20 The left-knee X-Ray indicated mild to
moderate osteoarthritis, 21 which is the degeneration of joint cartilage and the underlying bone.22
The right-knee MRI revealed moderate to severe osteoarthritis and two tears: a bucket-handle type
tear of her medial meniscus (inner knee) and a likely chronic partial tear of her anterior cruciate
ligament (“ACL”). 23 Dr. Pye recommended physical therapy and referred Ms. Parker to
J. Michael Morgenstern, M.D. for an orthopedic consultation. 24 Ms. Parker received three Synvisc
Hylan injections in her right knee between June 2008 and August 2008. 25
On June 20, 2008, Ms. Parker had both an MRI and an X-Ray performed on her lumbar
spine for low back pain. 26 The tests revealed mild to moderate degenerative disc changes and mild
lumbar spinal stenosis, 27 a narrowing of the lumbar spinal canal that puts pressure on the spinal
cord or sciatic nerve roots. 28 Ms. Parker was referred for physical therapy and acupuncture
therapy. 29 On October 8, 2008, eight months after her alleged onset date of disability, Dr. Pye
released Ms. Parker to return to work the following day with “mainly sedentary duties.” 30
2.

J. Michael Morgenstern, M.D.

Dr. Morgenstern saw Ms. Parker on February 22, 2008 for an orthopedic consultation.31

20

R. at 235-37.
R. at 236.
22
The Merck Manual for Healthcare Professionals,
http://www.merckmanuals.com/professional/musculoskeletal_and_connective_tissue_disorders/joint_disorders/oste
oarthritis_oa.html?qt=osteoarthritis&alt=sh (2013).
23
R. at 235-36.
24
R. at 248.
25
R. at 265, 267, 273.
26
R. at 256, 258.
27
Id.
28
The Merck Manual for Healthcare Professionals,
http://www.merckmanuals.com/professional/musculoskeletal_and_connective_tissue_disorders/neck_and_back_pai
n/lumbar_spinal_stenosis.html?qt=spinal%20stenosis&alt=sh (2013).
29
R. at 254.
30
R. at 238.
31
R. at 349.
21

Page 4 of 28

Dr. Morgenstern recommended a surgical arthroscopy, a common procedure involving viewing
the joint with a small camera to diagnose and treat knee problems, 32 of Ms. Parker’s right knee. 33
On March 6, 2008, Dr. Morgenstern performed an ACL repair surgery on Ms. Parker’s right
knee. 34 Ms. Parker continued to see Dr. Morgenstern for follow-up visits between March 2008
and August 2008. 35 During these visits Dr. Morgenstern recommended that Ms. Parker participate
in right-knee physical therapy and use ice and anti-inflammatories to help with pain and
swelling. 36
3.

Provident and Stroger Hospitals

Ms. Parker received no medical treatment between October 2008 and January 2010. In
early January 2010, Ms. Parker visited Provident Hospital of Cook County (“Provident”) with
complaints of a cold, coughing, and wheezing. 37 Ms. Parker did not complain of knee pain to
Provident until early February 2010. 38
On February 18, 2010, Matthew Sisk, M.D. of John H. Stroger Jr. Hospital of Cook County
(“Stroger”) attended to Ms. Parker. 39 Dr. Sisk ordered an X-Ray of her left knee, prescribed
Ibuprofen and a cane, but ultimately discharged her only with instructions to follow up in one to
two weeks. 40
4.

Mahesh Shah, M.D.

On May 19, 2010, Mahesh Shah, M.D. completed a consultative examination for the
32

U.S. National Library of Medicine, Medline Plus, Knee Arthroscopy,
http://www.nlm.nih.gov/medlineplus/ency/article/002972.htm (2013).
33
R. at 350.
34
R. at 43, 171, 353, 355.
35
R. at 351, 352, 353, 354.
36
R. at 352-54.
37
R. at 293-96.
38
R. at 287-88.
39
R. at 303.
40
R. at 303-04, 305, 306.

Page 5 of 28

Bureau of Disability Determination Services. 41 Dr. Shah noted that Ms. Parker had 100 degree
flexion and full extension in both knees. 42 Dr. Shah further noted that Ms. Parker had tenderness
surrounding both of her knees, she was able to bear her own weight and did not use any assisting
devices for ambulation but her gait was slow, she was able to heel-walk and toe-walk with only
some discomfort, and she was unable to squat down. 43 Dr. Shah found Ms. Parker’s arthritis to be
particularly worse in her left knee. 44
5.

Frank Jimenez, M.D.

Frank Jimenez, M.D., a state medical consultant, conducted a physical residual functional
capacity (“RFC”) assessment on June 9, 2010. 45 Dr. Jimenez determined that Ms. Parker could
occasionally lift up to twenty pounds; frequently lift up to ten pounds; stand or walk with normal
breaks for at least two hours in a normal workday; sit with normal breaks for about six hours in a
normal eight-hour workday; and perform unlimited pushing and pulling. 46 He further noted that
Ms. Parker could only occasionally climb, balance, stoop, kneel, crouch, and crawl due to her
arthritis. 47 Dr. Jimenez documented that Ms. Parker should avoid concentrated exposure to fumes,
odors, dusts, gases, and poor ventilation, due to her history of mild asthma. 48
6.

Virgilio Pilapil, M.D.

On September 17, 2010, Virgilio Pilapil, M.D., a state medical consultant, reconsidered
Ms. Parker’s initial RFC. 49 Dr. Pilapil concluded that because Ms. Parker alleged no worsening of

41
42
43
44
45
46
47
48
49

R. at 297.
R. at 299.
R. at 299-300.
R. at 300.
R. at 307-14.
R. at 308.
R. at 309.
R. at 311.
R. at 324-26.

Page 6 of 28

her conditions, claimed only allegations that were already included in the initial assessment, and
showed no significant differences in findings from the original claim, the prior sedentary RFC
decision should stand. 50
7.

Chantal Tinfang, M.D.

Ms. Parker first saw Provident physician Chantal Tinfang, M.D. in April 2010 for a
check-up with complaints of bilateral knee and low back pain. 51 On July 7, 2010, Ms. Parker
returned to see Dr. Tinfang for a follow-up visit, again complaining of bilateral knee pain. 52 An
X-Ray revealed degenerative changes in Ms. Parker’s right knee. 53 Dr. Tinfang recommended she
begin physical therapy. 54
On September 29, 2010, Dr. Tinfang completed an RFC questionnaire. 55 Dr. Tinfang’s
answers differed from Dr. Jimenez’s and Dr. Pilapil’s RFC assessments in that she could only
continuously stand for fifteen minutes and continuously sit for only thirty to forty-five minutes,
while alternately sitting/standing for no more than two hours in an eight-hour work day. 56
Dr. Tinfang’s opinion differed further in that she found Ms. Parker could only lift and carry less
than five pounds and that she was completely unable to squat or kneel. 57
On January 31, 2011, Dr. Tinfang conducted her own RFC assessment of Ms. Parker. 58
Dr. Tinfang provided descriptions or explanations in the general questions section, but provided
no medical findings other than the July 2010 X-Ray of her right knee, and provided no

50
51
52
53
54
55
56
57
58

Id.
R. at 316.
R. at 319.
R. at 321.
R. at 320.
R. at 328-31.
R. at 329.
R. at 330.
R. at 333-45.

Page 7 of 28

explanations as to how the X-Ray supported her assessment of Ms. Parker’s physical limitations.59
B.

Testimony from the ALJ Hearing

Ms. Parker’s hearing before the ALJ occurred on June 20, 2011 in Chicago, Illinois. 60
Ms. Parker appeared in person and was represented by her attorney, Deborah Spector. 61 In
addition, vocational expert (“VE”), James Radke, after examining Ms. Parker’s exhibits and
vocational background, provided testimony regarding positions that would be available to
Ms. Parker in consideration of her limitations.
1.

Ms. Parker’s Testimony

Ms. Parker testified that she stopped working as a mail carrier in February 2008 because
her “knee gave out.” 62 She stated that Dr. Pye had her off work from February 2008 until the end
of October 2008. 63 Then, in October 2008, the Post Office terminated Ms. Parker’s workers’
compensation payments and gave her the option of termination or resignation. 64 Ms. Parker
resigned in November 2008. 65
Ms. Parker claimed that she attempted to find work but no one would hire her because she
had a limp. 66 Consequently, she began living with her adult children. 67 She further claimed that
she did not have any insurance following her resignation, and because she feared incurring
expenses she could not pay, she suffered through the pain and relied on over-the-counter

59
60
61
62
63
64
65
66
67

Id.
R. at 20.
R. at 39.
R. at 46.
R. at 47.
Id.
R. at 48.
Id.
R. at 49.

Page 8 of 28

medication and limited activity instead of seeking treatment. 68
Ms. Parker then testified that in either December 2009 or January 2010, she was informed
that she could receive care at Provident. 69 Once at Provident, Ms. Parker received a limited
medical card but was unable to receive specialty orthopedic care through Provident because there
were no orthopedic surgeons available. 70 Ms. Parker further stated that her current physician,
Dr. Tinfang, would not recommend physical therapy because she did not believe it would work.71
Instead, Dr. Tinfang suggested that Ms. Parker use a cane for support. 72 Ms. Parker stated that
although she might have felt more confident with a cane in 2008 and 2009, she did not use one then
because no one suggested it and she “didn’t want to feel like an old lady.” 73 Finally, Ms. Parker
relied on Dr. Morgenstern’s alleged recommendation that she was too young for a knee
replacement and that she should wait as long as possible to avoid having them replaced multiple
times. 74
Next, Ms. Parker testified that she is limited in her daily activities and spends most of her
time at home with her children and grandchildren. 75 She stated, however, that she is unable to
babysit her grandchildren because she cannot chase after or lift them. 76 She alternates between
sitting, standing and lying down, and sometimes spends the entire day in bed two or three days a
week. 77 Ms. Parker also stated that in 2008 and 2009 she was “a little better”; she would not stay in

68
69
70
71
72
73
74
75
76
77

R. at 48.
R. at 48-49.
R. at 43.
R. at 49.
R. at 59.
Id.
R. at 50, 57.
R. at 51.
Id.
R. at 54.

Page 9 of 28

bed all the time, maybe only one day a week. 78
Ms. Parker stated that it is difficult for her to prepare her own meals or help with house
work, but she is sometimes able to vacuum the house one room at a time.79 She stated that she is
able to lift a gallon of milk, can only walk about as far as three houses without stopping, and can
only stand for fifteen to twenty minutes at a time. 80

2.

The VE’s Testimony

The VE began by testifying that Ms. Parker would not be able to return to a position as a
mail carrier with the Post Office. 81 Next, the ALJ inquired as to what jobs a hypothetical person
with Ms. Parker’s limitations would be able to perform. 82 The VE responded that there were
unskilled and sedentary, general office clerk positions available to such a person, and that these
positions would also allow the person to sit or stand at will. 83 When the ALJ asked the VE whether
those jobs could be performed if the person were to require being off-task or lying down for fifteen
percent of an eight-hour day, he replied that the jobs could not. 84
C.

The ALJ Decision

On August 11, 2011, the ALJ issued a partially favorable decision, concluding that
Ms. Parker has been disabled under sections 216(i), 223(d), and 11614(a)(3)(A) of the Act since
December 7, 2010, the date she turned fifty. 85 The ALJ denied Ms. Parker DIB and SSI for the

78
79
80
81
82
83
84
85

Id.
R. at 55.
R. at 51.
R. at 62.
Id.
R. at 62-63.
Id.
R. at 29-30.

Page 10 of 28

period between her alleged disability onset date of February 6, 2008 and December 7, 2010. 86
SSA regulations prescribe a sequential five-part test for ALJs to use in determining
whether a claimant is disabled. 87 The ALJ must first consider whether the claimant is presently
engaged in any substantial gainful activity which would preclude a disability finding. 88 Here, the
ALJ found that Ms. Parker has not engaged in any substantial gainful activity since the alleged
onset date of February 6, 2008. 89 The ALJ noted that although Ms. Parker had worked after the
alleged disability onset date, records showed that she had made earnings far below the presumptive
amount of substantial gainful activity. 90
Next, the ALJ must consider whether the claimant has a severe impairment or combination
of impairments. 91 In this case, the ALJ concluded that Ms. Parker had the following impairments:
osteoarthritis of the knees, obesity, asthma, arthritis, and degenerative disc disease of the lumbar
spine. 92 The ALJ noted that these impairments were “‘severe’ within the meaning of the
Regulations because they cause significant limitations in the claimant’s ability to perform basic
work activities.” 93
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. 94 In the
present case, the ALJ determined that the medical evidence did not demonstrate that Ms. Parker’s
impairments, individually or in combination, rose to the level of severity required under the

86
87
88
89
90
91
92
93
94

Id.
20 C.F.R. § 404.1520(a)(1).
20 C.F.R. § 404.1520(a)(4)(i).
R. at 22.
Id.
20 C.F.R. § 404.1520(a)(4)(ii).
R. at 22.
R. at 23.
20 C.F.R. § 404.1520(a)(4)(iii).

Page 11 of 28

listing. 95
In the event that none of the claimant’s impairments meet the listing requirements, the ALJ
proceeds to the fourth step of the test: whether the claimant has the RFC to perform the
requirements of her past relevant work. 96 In the present case, the ALJ found that Ms. Parker had
the RFC “to perform a range of sedentary work as defined in 20 C.F.R. [sections] 404.1567(a) and
416.967(a).” 97 Although the ALJ did not restrict Ms. Parker’s RFC to the limited pushing and
pulling of fifteen pounds provided for in Dr. Pye’s release, the other restrictions were equal to or
more restrictive than the initial RFC assessment. 98 Next, the ALJ held that there was no credible
medical reason to further limit her RFC.99 Finally, the ALJ concluded that the sedentary RFC was
consistent with the evidence as a whole and that Ms. Parker’s allegations of greater pain and
restrictions were unsupported. 100
In particular, the ALJ noted that Ms. Parker’s longitudinal medical record did “not
necessarily support her allegations of disabling pain as of her alleged onset date of disability.”101
Furthermore, the ALJ acknowledged Dr. Pye’s release to return to work in October 2008—eight
months after her alleged onset date of disability. 102 Additionally, the ALJ held that Ms. Parker’s
explanation for her gap in treatment from August 2008 until January 2010, “[did] not ring true”
because had Ms. Parker’s pain been “so severe that she could not do ‘anything’ as testified, she
would have sought some kind of care.” 103 The ALJ cited to Ms. Parker’s ability to care for her

95

R. at 23-24.
20 C.F.R. § 404.1520(a)(4)(iv).
97
R. at 24.
98
R. at 24, 238, 308-09, 311.
99
R. at 26.
100
R. at 26, 27.
101
R. at 25.
102
Id.
103
Id.
96

Page 12 of 28

grandchildren at home. 104
Turning to the opinion evidence, the ALJ did not explain what weight she gave to the
opinion of Dr. Tinfang but decided that Dr. Tinfang’s limitations were too restrictive based on the
whole of the medical evidence. 105 Further, the ALJ noted that Dr. Tinfang did not conduct a
function-by-function analysis, nor did she provide an explanation of the restrictions. 106 But the
ALJ gave the opinion of Dr. Pilapil, the state’s medical consultant who reviewed and affirmed the
initial state RFC, great weight because his opinion that the medical evidence supported a sedentary
RFC was consistent with the medical evidence as a whole. 107
Ultimately, the ALJ found that Ms. Parker was not capable of performing any past relevant
work. 108 The ALJ compared Ms. Parker’s RFC with the physical and mental demands of her past
work as a mail carrier and determined that the past work required exertion in excess of her RFC. 109
The ALJ then proceeded to the fifth step: whether the claimant could successfully adjust to
any other work after consideration of her RFC, age, education, and work experience. 110 If the
claimant is able to do other work, then she is not disabled. 111 Here, the ALJ found that prior to
December 7, 2010, in consideration of Ms. Parker’s age, education, work experience, and RFC,
there were jobs that existed in significant numbers in the national economy that Ms. Parker could
have performed and, therefore, she was not disabled prior to December 7, 2010. 112
III.

Standard of Review

104
105
106
107
108
109
110
111
112

Id.
R. at 27.
Id.
Id.
Id.
Id.
20 C.F.R. § 404.1520(g).
Id.
R. at 28, 29.

Page 13 of 28

The Court must sustain the Commissioner’s findings of fact if they are supported by
substantial evidence and are free of legal error. 113 Substantial evidence is relevant evidence that a
reasonable mind might accept as adequate to support a conclusion. 114 The standard of review is
deferential, but the reviewing court must conduct a critical review of the evidence before affirming
the Commissioner’s decision. 115 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. 116 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. 117 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. 118
IV.

Analysis
Ms. Parker argues that the Court should reverse and remand the decision of the ALJ

because the ALJ failed to: (1) properly evaluate the credibility of Ms. Parker’s allegations and
(2) give proper weight to the opinion evidence of Ms. Parker’s treating physician. We find no error
on the part of the ALJ with respect to either of these arguments. Overall, we determine that the ALJ
constructed a logical bridge from the record to her conclusions and that she provided adequate
support for her arguments.
A.

113
114

The ALJ’s Credibility Determination

42 U.S.C. § 405(g).
McKinzey v. Astrue, 641 F.3d 884, 889 (7th Cir. 2011) (citing Nelms v. Astrue, 553 F.3d 1093, 1097 (7th

Cir. 2009)).
115
116
117
118

Eichstadt v. Astrue, 534 F.3d 663, 665 (7th Cir. 2008).
Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir. 1990) (citation omitted).
Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010).
Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000).

Page 14 of 28

First, Ms. Parker contends that the ALJ erred by improperly: (1) suggesting that she had a
history of conservative treatment; (2) emphasizing the gap in her treatment history;
(3) characterizing her daily living activities as being able to care for her grandchildren when she
testified she could not; and (4) relying on Dr. Pye’s release for Ms. Parker to return to work.
An ALJ’s credibility determination cannot be invalidated unless it is “patently wrong”
because the “ALJ is in the best position to determine a witness’s truthfulness and
forthrightness.” 119 In determining whether a credibility determination is “patently wrong,” a court
examines whether the ALJ’s determination was reasoned and supported. 120 The Seventh Circuit
has explained that an ALJ needs only “‘minimally articulate his or her justification for rejecting or
accepting specific evidence of disability.’”

121

Moreover, “[i]t is only when the ALJ’s

determination lacks any explanation or support that [a court] will declare it to be patently
wrong.” 122
1.

History of Conservative Treatment

Ms. Parker argues that the ALJ erred in making her credibility determination by finding
that she has had only conservative treatment for her knees and back. 123 Although an ALJ should
“not draw any inferences about an individual’s symptoms and their functional effects from a
failure to seek or pursue regular medical treatment without first considering any explanations that
the individual may provide, or other information in the case record, that may explain . . . failure to

119

Prochaska v. Barnhart, 454 F.3d 731, 738 (7th Cir. 2008); Skarbek v. Barnhart, 390 F.3d 500, 504 (7th
Cir. 2004); Sims v. Barnhart, 309 F.3d 424, 431 (7th Cir. 2002).
120
See Jens v. Barnhart, 347 F.3d 209, 213-14 (7th Cir. 2003).
121
Rice v. Barnhart, 384 F.3d 363, 371 (7th Cir. 2004) (quoting Steward v. Bowen, 858 F.2d 1295, 1299 (7th
Cir. 1988)).
122
Elder v. Astrue, 529 F.3d 408, 413-14 (7th Cir. 2008) (internal quotation marks and citation omitted).
123
R. at 25-26.

Page 15 of 28

seek medical treatment,” 124 it appears the ALJ considered Ms. Parker’s explanations and the
record as a whole in her analysis.
The ALJ need only “consider the entire case record and give specific reasons for the weight
given to the individual’s statements.” 125 The ALJ specifically mentioned that Ms. Parker’s
longitudinal medical record did “not necessarily support her allegations of disabling pain as of her
alleged onset date of disability.” 126 The ALJ noted that Ms. Parker had only conservative
treatment between the time of her initial injury in 2004 and her alleged onset date of February 6,
2008. 127 The record shows Ms. Parker’s treatment within this period consisted of physical
therapy, several cortisone injections, and five Synvisc injections. 128 The ALJ highlighted Ms.
Parker’s treatment by Dr. Pye and Dr. Morgenstern, including an MRI of her right knee and the
subsequent surgical repair of her ACL accompanied by physical therapy and Synvisc injections.129
The ALJ also noted that the record revealed that Ms. Parker had received and followed all of the
recommended treatments prescribed by her various treating physicians, and that these treatments
had been “generally successful.” 130 Finally, the ALJ noted that in August 2008, Ms. Parker
complained of only intermittent pain and swelling, and that she had been released by Dr. Pye in
October 2008 to return to work eight months after her alleged onset date of disability. 131
Nevertheless, Ms. Parker argues that when she had access to healthcare and insurance, she
received extensive treatment for her back and left knee when they began to distress her in July

124
125
126
127
128
129
130
131

S.S.R. 96-7p.
Id. (emphasis added); see also Terry, 580 F.3d at 477.
R. at 25.
Id.
R. at 281.
R. at 25.
R. at 26.
R. at 25.

Page 16 of 28

2008. 132 First, with respect to her back, Ms. Parker points to physical therapy, acupuncture, and
pain killer treatment that she sought in July 2008 to support her claim of extensive treatment. 133
But Ms. Parker only went for acupuncture therapy once because her treating physician at the time
did not recommend that she keep going. 134 Second, with regards to Ms. Parker’s left knee pain, the
record does not reveal physical therapy for bilateral knee osteoarthritis in July 2008. 135 Rather,
during that time period, Ms. Parker received physical therapy on her right knee in relation to her
ACL surgery from March 2008. The only medical record in 2008 that refers to Ms. Parker’s left
knee is the X-Ray Dr. Pye ordered in February 2008, after which Dr. Pye only prescribed physical
therapy treatment for her right knee. 136 Ms. Parker did not again complain of left knee pain until
February 2010 at Stroger, at which time Dr. Sisk prescribed Ibuprofen and a cane. 137
Ms. Parker cites Carradine v. Barnhart 138 to support her claim that she pursued multiple
methods of treatment, none of which resolved her pain. 139 In Carradine, the Seventh Circuit held
that it was improbable that the claimant would have undergone treatment procedures that
“included not only heavy doses of strong drugs such as Vicodin, Toradol, Demerol, and even
morphine, but also the surgical implantation in her spine of a catheter and a spinal-cord stimulator,
merely in order to strengthen the credibility of her complaints of pain and so increase her chances
of obtaining disability benefits.” 140 But unlike the plaintiff in Carradine, Ms. Parker was not

132

Pl.’s Reply Brief at 2.
Id.
134
R. at 50, 254.
135
Ms. Parker cites to the record at 279, but that refers to a billing from a visit to Dr. Pye in February 2008.
136
R. at 248.
137
R. at 303-06.
138
360 F.3d 751 (7th Cir. 2004).
139
Pl.’s Reply Brief at 8.
140
Carradine, 360 F.3d at 755.
133

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prescribed heavy doses of strong drugs. 141 In fact, following her ACL repair surgery in March
2008, Ms. Parker’s treatment consisted only of physical therapy, Synvisc injections, ice and
anti-inflammatories. 142 Then, in August 2008, she complained of only intermittent pain and
swelling and was released to return to work two months later. 143
Ms. Parker further argues that “[r]egardless of how conservative [her] treatment modalities
[were], they have been unsuccessful and [she] pursued multiple modalities while she had access to
healthcare . . . .” 144 Ms. Parker cites Social Security Ruling 96-7p, which details that,
[p]ersistent attempts by the individual to obtain relief of pain or other symptoms,
such as by increasing medications, trials of a variety of treatment modalities in an
attempt to find one that works or that does not have side effects, referrals to
specialists, or changing treatment sources may be a strong indication that the
symptoms are a source of distress to the individual and generally lend support to an
individual’s allegations of intense and persistent symptoms. 145
Ms. Parker also argues that she made “repeated and persistent attempts to pursue treatment for her
predominant disabling right knee injury[.]” 146 But Ms. Parker’s treatment through Dr. Pye and
Dr. Morgenstern in 2008 was predominantly for follow-ups regarding her ACL repair surgery, and
only minimally concerned her complaint of back pain, as discussed above. 147 Following this
treatment, Dr. Morgenstern noted in August 2008 that Ms. Parker complained of only intermittent
pain and swelling and Dr. Pye concluded in October 2008 that Ms. Parker could return to work. 148
Moreover, Ms. Parker heavily relies on her treatment at Provident in January 2010 when she

141
142
143
144
145
146
147
148

Id.; R. at 238.
R. at 43, 171, 248, 265, 267, 273, 352-55.
R. at 238, 352-54.
Pl.’s Brief at 8.
S.S.R. 96-7p.
Pl.’s Reply Brief at 2.
R. at 349-56.
R. at 238, 354.

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regained access to healthcare. 149 But she first visited Provident with complaints of a persistent
cough and did not complain of knee pain until a month later. 150
The Commissioner further argues that there is no medical evidence to support Ms. Parker’s
allegation that she is a candidate for knee replacement surgery but unable to receive it due to her
age. Although this is true, Ms. Parker correctly contends that the Commissioner’s argument
violates the Chenery doctrine 151 “because the ALJ never addressed [the] issue or made such a
finding.” 152 Indeed, recent Seventh Circuit case law makes clear that “the Commissioner cannot
defend the ALJ’s decision . . . [when] the ALJ did not employ the rationale in his opinion.” 153
2.

Gap in Treatment History

Ms. Parker next argues that although the ALJ considered Ms. Parker’s explanation for the
gap in treatment from August 2008 until January 2010, the ALJ held the gap in treatment against
her. The Seventh Circuit has held that “[a]n ALJ may need to ‘question the individual at the
administrative proceeding in order to determine whether there are good reasons the individual does
not seek medical treatment or does not pursue treatment in consistent manner.” 154 A “good
reason” may include an inability to afford treatment. 155
In reviewing the hearing transcript, we note that the ALJ inquired into whether Ms. Parker
could explain her gap in treatment from August 2008 until January 2010. The ALJ learned that Ms.
149

Pl.’s Brief at 9.
R. at 287-88, 293-96.
151
See S.E.C. v. Chenery Corp., 318 U.S. 80, 87-88 (1943); Stewart v. Astrue, 561 F.3d 679, 684 (7th Cir.
2009) (holding that agency lawyers are barred from defending agency decisions on grounds that the agency itself did
not embrace).
152
Pl.’s Reply Brief at 2 n. 1.
153
Roddy v. Astrue, 705 F.3d 631, 637 (7th Cir. 2013) (citing Chenery, 318 U.S. at 87-88); see also
Robben-Cyl v. Colvin, No. 11-C-7501, 2013 WL 1087556, at *2-3 (N.D. Ill. Mar. 14, 2013).
154
Shauger v. Astrue, 675 F.3d 690, 696 (7th Cir. 2012) (quoting S.S.R. 96-7p); Craft v. Astrue, 539 F.3d
668, 679 (7th Cir. 2008) (emphasizing that “the ALJ ‘must not draw any inferences’ about a claimant’s condition from
this failure unless the ALJ has explored the claimant’s explanations as to the lack of medical care”).
155
S.S.R. 96-7p; Shauger, 675 F.3d at 696.
150

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Parker had no medical insurance from the end of 2008 all through 2009, until she found out in
early 2010 that she could visit Provident for free care. 156 The ALJ further learned that Ms. Parker
was unable to obtain employment after she resigned her position as a mail carrier and was
therefore not earning income. 157
In Eskew v. Astrue, the Seventh Circuit held that the ALJ failed to build a “logical bridge”
between the record and his credibility determination when he “failed to address [the claimant’s]
explanation that the gaps in treatment stemmed from her difficulty finding medical providers who
accepted Medicare” and dismissed her explanation for not taking prescribed medication because,
even though she was unemployed, she still purchased cigarettes during that time. 158 The ALJ here,
however, addressed Ms. Parker’s explanations and found that they “[did] not ring true” because
had her pain been “so severe that she could not do ‘anything’ as testified, she would have sought
some kind of care.” 159 Ms. Parker concedes that the ALJ’s assertion “arguably counts as
‘considering’ [Ms.] Parker’s explanation as required by the Commissioner’s rulings,” but argues
that the “cursory dismissal was insufficient in light of the fact that her finding was in direct conflict
with the Commissioner’s own rulings.” 160 Nevertheless, Ms. Parker cites no case law in support
of her argument that the ALJ’s assertion was insufficient and contradictory to “the
Commissioner’s long-standing, published policy.” 161
3.

Daily Living Activities

Ms. Parker also argues that the ALJ mischaracterized the record when she cited

156
157
158
159
160
161

R. at 43, 48.
R. at 48.
462 F. App’x 613, 616 (7th Cir. 2011).
R. at 25.
Pl.’s Reply Brief at 3.
Pl.’s Brief at 10.

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Ms. Parker’s ability to care for her grandchildren at home. 162 Further, Ms. Parker contends that the
ALJ failed to identify or discuss any of Ms. Parker’s other activities of daily living.
An ALJ may not ignore the claimant’s statements regarding pain and other symptoms or
disregard them merely because they are not substantiated by objective medical evidence. 163
Indeed, the ALJ “need not totally accept or totally reject the individual’s statements. . . . [But] may
find all, only some, or none of an individual’s allegations to be credible . . . [or only] credible to a
certain degree.” 164 And though “an ALJ must minimally articulate his reasons for crediting or
rejecting evidence of disability,” 165 an ALJ is not required to address every piece of evidence in
her determination. 166
In this case, the only daily activity the ALJ cited was Ms. Parker’s apparent ability “to care
for her grandchildren at home, which can be quite demanding both physically and emotionally.”167
But Ms. Parker actually testified that she was “around” her grandchildren at home but did not
babysit them because she was unable to. 168 Therefore, the ALJ did, in fact, mistakenly
mischaracterize Ms. Parker’s daily activities to include the ability to care for her grandchildren.
But such an error does not “necessarily mean the ALJ’s credibility determination was patently
wrong.” 169 An ALJ’s opinion must be read as a whole, and so long as a mistake “does not

162

Id.
S.S.R. 96-7p.
164
S.S.R. 96-7p.
165
Clifford, 227 F.3d at 870 (internal quotation marks and citation omitted).
166
McKinzey, 641 F.3d at 891 (“[g]enerally speaking, an ALJ’s adequate discussion of the issues need not
contain a complete written evaluation of every piece of evidence.”) (internal quotation marks and citation omitted);
Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010) (holding that an ALJ must “consider all relevant medical evidence
. . . “[b]ut an ALJ need not mention every piece of evidence, so long he builds a logical bridge from the evidence to his
conclusion”) (citations omitted); Craft, 539 F.3d at 673 (“[t]he ALJ is not required to mention every piece of evidence
but must provide an ‘accurate and logical bridge’ between the evidence and the conclusion that the claimant is not
disabled . . . .”) (citation omitted).
167
R. at 26.
168
R. at 26, 51.
169
See Jones, 623 F.3d at 1161 (holding that even where the ALJ made a mistake in determining that there
163

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undermine the substantial evidence that supports her credibility determination,” the decision will
not be “patently wrong.” 170
And although the Seventh Circuit has held that limited daily activities consisting of
housework, shopping, driving short distances, walking her dogs, and playing did “not contradict a
claim of disabling pain,” 171 the court subsequently held that where a claimant testified that her
daily activities had changed within the alleged period of disability due to an exacerbation, the ALJ
could reasonably find that the claimant’s testimony undermined her complaints. 172 In this case,
Ms. Parker testified that during the relevant time period, 2008 and 2009, she was “a little better”
and did not stay in bed all the time. 173 Additionally, the Seventh Circuit has held that even where
“the ALJ [does] not explicitly mention each activity,” her analysis is not fatally flawed. 174 Indeed,
it is well-settled that “an ALJ’s ‘adequate discussion’ of the issues need not contain a ‘complete
written evaluation of every piece of evidence.’” 175 Even if the ALJ’s credibility analysis was not
necessarily “ideal,” it is not “patently wrong” if “[t]he ALJ did not place undue weight on [the
claimant’s] activities of daily living . . . [but] specified several valid reasons for finding [the
claimant] not credible.” 176
Here, the ALJ considered Ms. Parker’s testimony of “described daily activities” generally
and determined that they were “not limited to the extent one would expect, given [her] complaints

was a gap in the claimant’s treatment, the “error [did] not necessarily mean the ALJ’s credibility determination was
patently wrong”).
170
Id.
171
Villano v. Astrue, 556 F.3d 558, 563 (7th Cir. 2009) (citation omitted); Clifford, 227 F.3d at 872).
172
Milliken v. Astrue, 397 F. App’x 218, 225 (7th Cir. 2010).
173
R. at 54.
174
Milliken, 397 F. App’x at 225.
175
McKinzey, 641 F.3d at 891.
176
See Schreiber v. Colvin, 519 F. App’x 951, 961 (7th Cir. 2013) (citations omitted).

Page 22 of 28

of disabling symptoms and limitations.”177 Ms. Parker testified that she has to alternate between
sitting, standing and lying down and that she sometimes spends a whole day in bed two or three
times a week. 178 Ms. Parker further stated that it is difficult for her to prepare her own meals or
help with house work, but she is sometimes able to vacuum the house one room at a time. 179 She
testified that she is able to lift a gallon of milk, can only walk about as far as three houses without
stopping, and can only stand for fifteen to twenty minutes at a time. 180 In light of the foregoing
record evidence, we conclude that the mischaracterization that Ms. Parker cared for her
grandchildren did not undermine the substantial supporting evidence of the ALJ’s credibility
determination. The ALJ specified several valid reasons for finding Ms. Parker not credible,
including Dr. Pye’s release to return to work, the lack of medical evidence to support her
complaints of back pain, a general lack of a longitudinal medical record to support her allegations
of pain as of the alleged onset date of disability and her explanation for the gap in treatment.181
Given the deferential nature of our review, we will not remand the ALJ’s decision. 182
4.

Reliance on Dr. Pye’s Release to Return to Work

First, the Court notes Ms. Parker’s lack of any legal support for her argument that the
ALJ’s failure to acknowledge that Dr. Pye released Ms. Parker to a restricted range of sedentary
work resulted in an error by not including vocational evidence that Ms. Parker is capable of
competitive work consistent with Dr. Pye’s restrictions. Our review finds that, indeed, the ALJ
recognized Dr. Pye’s release of Ms. Parker to a restricted range of sedentary work when she found
177

R. at 26.
R. at 54.
179
R. at 55.
180
R. at 51.
181
See Schreiber, 519 F. App’x at 961 (holding that an ALJ’s credibility analysis was not “patently wrong”
where the ALJ “specified several valid reasons for finding [the claimant] not credible” and “did not place undue
weight on [the claimant’s] activities of daily living . . . .”); R. at 25.
182
See id.
178

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that:
[T]he claimant can occasionally lift and/or carry up to [ten] pounds occasionally
and frequently, stand and/or walk for a total of at least [two] hours in an
[eight]-hour workday, sit for a total of about [six] hours in an [eight]-hour workday
and engage in unlimited pushing and/or pulling. The claimant: can only
occasionally climb, balance, stoop, kneel, crouch or crawl. The claimant should
also avoid concentrated exposure to fumes, odors, dusts, gasses and poor
ventilation. 183
Although the ALJ did not limit Ms. Parker’s RFC to the exact restrictions of Dr. Pye’s release,
despite these differences, the ALJ’s findings were more restrictive than Dr. Pye’s because: (1) the
ALJ limited Ms. Parker’s RFC to lifting and carrying only ten pounds, whereas Dr. Pye only
limited her to fifteen pounds for these activities; and (2) the ALJ limited Ms. Parker’s RFC to
standing or walking for a total of two hours and sitting for only six hours within a normal workday,
while Dr. Pye’s sole restriction was that Ms. Parker should not stand or walk for more than an hour
without a twenty-minute rest break. 184 And even if the ALJ had exactly copied Dr. Pye’s
restrictions from his release, the fact remains that he released her to return to work eight months
after her alleged disability onset date in February 2008. Accordingly, the Court finds that the ALJ
built an accurate and logical bridge between the evidence and her conclusion. 185
B.

The ALJ Reasonably Rejected the Opinion Evidence of Dr. Tinfang

Ms. Parker contends that the ALJ failed in her analysis when she stated that (1) based on
Dr. Tinfang’s opinion, Ms. Parker should be bedridden or confined to a wheelchair,
(2) Dr. Tinfang provided no function-by-function analysis and no explanation for Ms. Parker’s
physical limitations, (3) Dr. Tinfang’s opinions were vague and not supported by the evidence, and

183

R. at 24.
R. at 24, 238.
185
See Jones, 623 F.3d at 1160 (“The ALJ is not required to address every piece of evidence or testimony
presented, but must provide a ‘logical bridge’ between the evidence and the conclusions.”).
184

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(4) there was the possibility that Dr. Tinfang simply wanted to assist Ms. Parker because she
sympathized with her. 186
Generally, a claimant’s treating physician will only be given controlling weight if it is
“well-supported by medically acceptable clinical and laboratory diagnostic techniques,” and “not
inconsistent with the other substantial evidence in the medical record.” 187 “[A]n ALJ must not
substitute his own judgment for a physician’s opinion without relying on other medical evidence
or authority in the record.” 188 The weight an ALJ allocates to a treating physician’s opinion
depends on a number of factors, including (1) “the length, nature, and extent” of the treatment
relationship; (2) “whether the physician supported his or her opinions with sufficient
explanations”; (3) “whether the physician specializes in the medical conditions at issue”; and
(4) the consistency of the physician’s “opinion [] with the record as a whole.” 189
1.

Length, Nature, and Extent of the Treatment Relationship

Ms. Parker argues that there was no indication of a sympathetic relationship between
Dr. Tinfang and Ms. Parker. But Ms. Parker fails to cite any case law and simply argues that the
ALJ failed in her analysis. The Seventh Circuit has recognized that it “is well known [that] many
physicians (including those most likely to attract patients who are thinking of seeking disability
benefits) will often bend over backwards to assist a patient in obtaining benefits.” 190 Ms. Parker
did not begin seeing Dr. Tinfang until April 2010, which was only a month after she filed her
186

R. at 27.
20 C.F.R. § 404.1527(c); S.S.R. 96-5p; Hofslien v. Barnhart, 439 F.3d 375, 376 (7th Cir. 2006) (finding
that the treating physician’s evidence is no longer entitled to controlling weight once well-supported contradicting
evidence is introduced).
188
Clifford, 227 F.3d at 870; Rohan v. Chater, 98 F.3d 966, 968 (7th Cir. 1996) (“as this Court has counseled
on many occasions, ALJs must not succumb to the temptation to play doctor and make their own independent medical
findings.”)
189
Elder, 529 F.3d at 415 (citing 20 C.F.R. § 404.1527(c)(2), (3), and (5); Hofslien, 429 F.3d at 377;
20 C.F.R. § 404.1527(c)(4).
190
Hofslien, 439 F.3d at 377 (citations omitted).
187

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application for DIB and SSI. 191 This fact, combined with the extensive restrictions of
Dr. Tinfang’s assessments detailed above, supports the ALJ’s reasonable reliance on this factor. 192
2.

Support and Explanations for Dr. Tinfang’s Opinion

Dr. Tinfang completed a function-by-function analysis, however, as the ALJ pointed out,
she did not provide explanations for her restrictions as required. 193 Social Security Ruling 96-9p
provides that an “RFC assessment must include a narrative that shows the presence and degree of
any specific limitations and restrictions, as well as an explanation of how the evidence in file was
considered in the assessment.” 194 The ALJ further noted that Dr. Tinfang’s opinions were
unsupported by the evidence. 195 Dr. Tinfang did not attach medical findings other than
Ms. Parker’s July 2010 X-Ray of her right knee, and provided no further explanation as to how the
X-Ray supported her assessment of Ms. Parker’s limitations.196 Indeed, Ms. Parker concedes that
the required medical records are “scant,” and that Dr. Tinfang’s opinion regarding Ms. Parker’s
manipulative and environment limitations is “arguably unsupported.” 197
3.

Dr. Tinfang’s Specialty

The ALJ noted that Dr. Tinfang is not an orthopedic specialist. 198 A treating physician’s
opinion will be given more weight when she specializes in the medical conditions at issue.199
Ms. Parker argues, however, that Dr. Pilapil is also not an orthopedic specialist yet the ALJ gave
191

R. at 316.
Berger v. Astrue, 516 F.3d 539, 545 (7th Cir. 2008) (quoting Rice, 384 F.3d at 372)(noting that if the ALJ
“minimally articulates” her reasons for rejecting the treating physician’s opinion, her decision must stand); see also 20
C.F.R. § 404.1527(c)(2) (“[w]e will always give good reasons in our notice of determination or decision for the weight
we give your treating source’s opinion.”); Elder, 529 F.3d at 415.
193
R. at 27.
194
S.S.R. 96-9p.
195
R. at 27; see also Skarbek, 390 F.3d at 503 (rejecting a treating physician’s opinion that “was not
well-supported by medical evidence”).
196
R. at 333-45.
197
Pl.’s Reply Brief at 4.
198
R. at 27.
199
20 C.F.R. § 404.1527(c)(5).
192

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his opinion great weight. Though Dr. Pilapil does not specialize in orthopedic conditions, “[i]t is
appropriate for an ALJ to rely on the opinions of physicians and psychologists who are also experts
in social security disability evaluation.” 200 Accordingly, the ALJ’s consideration of, and reliance
on, this factor was reasonable.
4.

Consistency of Dr. Tinfang’s Opinion with the Record

The ALJ found that Dr. Tinfang’s opinion was unpersuasive because “the limitations
[were] too restrictive based on the medical evidence as a whole.” 201 For example, the ALJ noted
that in a questionnaire on physical impairments completed in September 2010, Dr. Tinfang opined
that Ms. Parker “could sit or stand for no more than two hours in and [sic] eight-hour work day, she
could continuously stand for [fifteen] minutes at the most, and continuously sit for thirty minutes,
and could walk for less than one half a block without stopping.” 202 Further, the ALJ highlighted
that in an RFC questionnaire completed in January 2011, Dr. Tinfang opined that Ms. Parker’s
“pain would constantly interfere with her ability to maintain the concentration and attention
needed to perform even simple work tasks because she had osteoarthritis in both knees causing
constant knee pain.” 203 The ALJ reasoned that Ms. Parker “would be in a wheelchair or bedridden
if she were as limited as Dr. Tinfang opined.” 204 Although Ms. Parker testified that on some days
she did remain in bed all day, Ms. Parker also testified that during 2008 and 2009, the relevant
period for our consideration, she was “a little better,” and would remain in bed only one day a
week. 205 Furthermore, Ms. Parker stated that while she might have felt more confident with a cane

200
201
202
203
204
205

Flener ex rel. Flener v. Barnhart, 361 F.3d 442, 448 (7th Cir. 2004) (citing 20 C.F.R. § 416.927(e)(2)(i)).
R. at 27.
Id.
Id.
Id.
R. at 54.

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during that time period, she did not use one because she “didn’t want to feel like an old lady.” 206
Discounting Dr. Tinfang’s extreme assessment of Ms. Parker, therefore, does not rise to the level
of reversible error because his findings were not supported by the record as a whole.
V.

Conclusion
For the reasons outlined, Ms. Parker’s motion for summary judgment for reversal or

remand [dkt. 17] is denied.

IT IS SO ORDERED.
ENTERED: May 12, 2014

206

/s/ Susan E. Cox
UNITED STATES MAGISTRATE JUDGE
Susan E. Cox

R. at 59.

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