Blaisdell v. Colvin

Filing 26

MEMORANDUM Opinion and Order Signed by the Honorable Sheila Finnegan on 5/30/2014: Plaintiff's Motion for Summary Judgment 16 is denied, and Defendant's Motion for Summary Judgment 24 is granted. The Clerk is directed to enter judgment in favor of Defendant. Civil case terminated. [For further details see memorandum opinion and order.] Mailed notice. (is, )

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

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No. 13 C 2796
Magistrate Judge Finnegan

MEMORANDUM OPINION AND ORDER
Plaintiff Alexa Annette Blaisdell seeks to overturn the final decision of the
Commissioner of Social Security (“Commissioner” or “Defendant”) denying her
application for Supplemental Security Income (“SSI”) under Title XVI of the Social
Security Act. 42 U.S.C. § 1381a. The parties consented to the jurisdiction of the
United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and filed crossmotions for summary judgment. After careful review of the record, the Court now
denies Plaintiff’s motion, grants Defendant’s motion, and affirms the decision to
deny benefits.
PROCEDURAL HISTORY
Plaintiff applied for SSI in February 2010, alleging that she became
disabled on February 18, 1994 due to a learning disability, bipolar disorder,
anxiety, obsessive compulsive disorder (“OCD”), and depression.1 (R. 90, 96).
The Social Security Administration denied the applications initially on September
1

Plaintiff’s mother also applied for child’s insurance benefits on her behalf. (R. 16,
316-24).

16, 2010, and again upon reconsideration on March 15, 2011. (R. 26-31, 43-51,
54-58).

Plaintiff filed a timely request for hearing and appeared before

Administrative Law Judge John L. Mondi (the “ALJ”) on January 25, 2012. (R.
338). The ALJ heard testimony from Plaintiff, who was represented by counsel,
Plaintiff’s mother (Janine Tasson) and her stepfather (Lou Tasson), as well as
from medical expert Kathleen O’Brien (the “ME”). Shortly thereafter, on February
23, 2012, the ALJ found that Plaintiff is not disabled because there are a
significant number of jobs she can perform in the national economy. (R. 16-25).
The Appeals Council denied Plaintiff’s request for review on February 22, 2013,
(R. 6-8), and Plaintiff now seeks judicial review of the ALJ’s decision, which
stands as the final decision of the Commissioner.
In support of her request for remand, Plaintiff argues that the ALJ: (1)
erred in finding that she does not meet or medically equal Listing 12.05 for
mental retardation; (2) made a flawed credibility determination; (3) made a flawed
residual functional capacity (“RFC”) assessment; and (4) improperly relied on the
Medical-Vocational Guidelines (the “Grids”) to find her capable of performing a
substantial number of jobs. As discussed below, the Court finds that the ALJ’s
decision is supported by substantial evidence and need not be reversed or
remanded.
FACTUAL BACKGROUND
Plaintiff was born on February 18, 1992, was 20 years old at the time of
the ALJ’s decision, and has lived at all times with her parents. (R. 96, 273). She
started receiving special education services in 1st grade after her elementary
2

school assessed her with a mild mental impairment and an extremely low full
scale IQ (“FSIQ”) of 65 to 69. (R. 228). With the assistance of Individualized
Education Programs (“IEPs”) and special education classes, Plaintiff graduated
from high school in 2010 at age 18. (R. 341). Her work history is best described
as sporadic and limited.

For example, in 2009 she was fired from part-time

positions at Walgreens and The Village Squire Restaurant after only a few
months because of poor attendance; she lost another part-time job at Nature’s
Fresh Market after one week because her cash drawer came up $300 short; and
she was fired from L.A. Tan following a temporary leave of absence “due to
having a friend behind the counter while working.” (R. 83, 84, 269, 342-45).
Most recently, she quit working at Jewel-Osco in 2011 because she could no
longer lift boxes after she became pregnant with her daughter, who was born in
or around July 2011. (R. 287, 290, 341, 346).
A.

Medical History
On November 24, 2008, Plaintiff started seeing Conchita G. Gavino, M.D.,

of the Ecker Center for Mental Health due to anxiety and depression. (R. 244).
Dr. Gavino’s handwritten notes are largely illegible, but it appears that she saw
Plaintiff on a fairly regular basis through October 26, 2009, and that she
prescribed Prozac during the first visit, followed by Abilify in April 2009. (R. 23844).
On November 26, 2008, Piper Stratton, M.A., Ed.S., completed a School
Psychological Report of Plaintiff for Dundee-Crown High School. (R. 228-33). At
the time, Plaintiff was a 16-year-old 11th grader with an FSIQ of 65. (R. 228-29).
3

Her academic skills fell between the Extremely Low and Low Average range,
manifesting as a vocabulary at the 4th or 5th grade level and “particular
weakness” with math calculations and reasoning, including making change for a
dollar.

(R. 230-31).

Despite these global cognitive deficits, however, Ms.

Stratton noted that Plaintiff exhibited strengths in the areas of “Working Memory”
(short-term auditory memory) and understanding the relationships between real
or concrete objects. (R. 230).
With respect to social-emotional functioning, Plaintiff exhibited moderate
levels of anxiety and depression, reporting negative and anxious thoughts,
stomach aches, heart pounding, shakiness, sleeping issues, and a fear of being
hurt by others. She also said that she had recently seen a doctor for these
symptoms and would soon be starting Prozac. (R. 231). An IEP prepared the
same day indicated that Plaintiff had been able to maintain jobs “when she has
the skills necessary for them,” and could cook, clean, and do laundry. (R. 210).
Plaintiff’s next IEP dated November 18, 2009 indicated that she could type
very well in Vocational English and was “sweet” with “a great sense of humor.”
She exhibited “age-appropriate independent living skills” but continued to
struggle with money and making change. (R. 193). A final IEP report from June
4, 2010 confirmed that Plaintiff had completed the course requirements for a high
school diploma.

(R. 185).

Though she had difficulty with memory skills

“especially when it comes to new concepts,” she had obtained a driver’s license
and was “able to multi-task with assignments.”

(R. 172).

She was also

described as “a very competent young lady who appears to know what she wants
4

to achieve as a career after high school.” (R. 185). In that regard, Plaintiff
expressed interest in transitioning to the Nail Tech School to pursue cosmetology
training. (Id.).
On June 21, 2010, David NieKamp, Psy.D., completed an Intellectual
Assessment of Plaintiff for the Bureau of Disability Determination Services
(“DDS”). (R. 269-72). Plaintiff told Dr. NieKamp that she had graduated from
high school that spring, but suffers from headaches, stomach pain, panic attacks
and a limited appetite. (R. 269). During the exam, she displayed no evidence of
distractibility but she had difficulty recalling needed information. (R. 270). Dr.
NieKamp assessed Plaintiff with an FSIQ of 67, which is within the range of Mild
Mental Retardation and “significantly below that of her peers.” (R. 271). He
stated that Plaintiff “may benefit from having information presented with
verbal/visual prompts and ‘hands-on’ instruction,” and would likely “flourish in an
environment (i.e. home, educational, and vocational) that provides a consistent
structure/routine and clear/ample prompts.”

(Id.).

Dr. NieKamp assessed

Plaintiff with mild mental retardation and a variety of other “Reported”
impairments including depression, anxiety, learning disability, OCD, bipolar
disorder, headaches and stomach pain. (R. 271-72).
In a Mental Status Evaluation completed the same day, Dr. NieKamp
noted that Plaintiff’s memory seemed relatively intact and she displayed
appropriate thought processes. (R. 275). Her cognitive functions “appear[ed] to
be operating below developmental norms,” however, suggesting that “her ability
to advance in a professional setting is likely very limited” and she probably would
5

not “move beyond . . . entry level positions in the near future.” (R. 275-76). Dr.
NieKamp diagnosed moderate to severe anxiety, mild dependent features and
problems maintaining consistent employment, and assigned Plaintiff a Global
Assessment of Functioning (“GAF”) score of 60.2 (R. 276).
A few months later, on January 25, 2011, Barbara F. Sherman, Psy.D.,
conducted a Psychological Evaluation of Plaintiff for DDS. (R. 286-90). Plaintiff
told Dr. Sherman that it is difficult for her to understand and follow directions,
though she planned to attend a cosmetology school with a special program for
individuals with learning disabilities.

(R. 286, 287).

She reported taking

psychotropic medications in the past but also said that “[b]ecause she kept
forgetting to do so, she canceled her appointments.” (R. 287). At the same time,
Plaintiff complained that she “felt that she had obsessive-compulsive disorder,”
which manifested as liking to have things tidy and in their place, liking to have her
linens unwrinkled, and sometimes re-cleaning the house after she had already
cleaned it. (R. 288).
Dr. Sherman diagnosed Plaintiff with cognitive disorder, NOS (not
otherwise specified) and obsessive personality traits. She noted that Plaintiff
was “independent for household chores, travel and personal hygiene,” and was
able to articulate her ideas well with adequate judgment and no pervasive
2

The GAF score is “a psychiatric measure of a patient’s overall level of
functioning.” Jelinek v. Astrue, 662 F.3d 805, 807 (7th Cir. 2011). A score between 51
and 60 reflects “Moderate symptoms (e.g., flat affect and circumstantial speech,
occasional panic attacks) OR moderate difficulty in social, occupational, or school
functioning (e.g., few friends, conflicts with peers or co-workers).” Id. at 807 n.1 (quoting
American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders,
Text Revision (DSM-IV-TR) 34 (4th ed. 2000)).

6

symptoms of emotional distress. However, Plaintiff did exhibit some deficits in
“attentional focus, basic fund of information, concept formation and arithmetic
skills,” and Dr. Sherman opined that Plaintiff cannot manage her own funds
without assistance. (R. 290).
The last medical evaluation in the record is from March 10, 2011, when
David Voss, Ph.D., completed a Mental Residual Functional Capacity
Assessment of Plaintiff for DDS. (R. 291-93). Dr. Voss found Plaintiff to be
moderately limited in the ability to: understand, remember and carry out detailed
instructions; maintain attention and concentration for extended periods; respond
appropriately to changes in the work setting; and set realistic goals or make
plans independently of others.

(R. 291-92).

Nevertheless, Plaintiff can:

“understand and remember short instructions and complete simple one and twostep tasks”; “maintain attention, concentration and persistence necessary to carry
out simple one and two-step tasks at a consistent pace over a regular 40 hr work
week”; “make simple work-related decisions and independently sustain a work
routine without the need for close supervision”; “adapt adequately to work
situations and changes that occur in the usual workplace with reasonable support
and structure”; “be aware of normal hazards, plan independently and set realistic
goals”; and “use public transportation or travel independently in unfamiliar
settings.” (R. 293).
In a Psychiatric Review Technique completed the same day, Dr. Voss
found that Plaintiff has moderate difficulties in maintaining concentration,
persistence or pace, but only mild difficulties in maintaining social functioning and
7

carrying out activities of daily living, and no episodes of decompensation. (R.
305). According to Dr. Voss, Plaintiff does not meet any of the Listings, including
12.02 for Organic Mental Disorders and 12.08 for Personality Disorders, (R. 294),
and her statements about problems completing tasks, concentrating and
understanding appeared to be only “partially credible.” Dr. Voss explained that
during Dr. Sherman’s examination, Plaintiff “with coaching was able to recite
months of the year after she said that she could not,” and she exhibited intact
memory and adequate judgment. (R. 307).
B.

Plaintiff’s Testimony
In a January 29, 2011 Function Report completed in connection with her

application for disability benefits, Plaintiff stated that she has a hard time
comprehending things, does not understand what she reads, cannot do math or
count money, and finds it difficult to follow directions. (R. 129). On a typical day,
she showers, changes clothes multiple times, “putz[es] around the house
aimlessly,” and sleeps a lot. (R. 130). She has no problems with personal care;
regularly cleans, does laundry and mows the lawn; shops for food, clothes and
personal items as needed; can go outside and drive by herself; and regularly
hangs out with friends. (R. 130-33). At the same time, she has a hard time
following directions to prepare anything more than simple meals; she cannot
handle money; and she has problems with memory, completing tasks,
concentrating, understanding and following instructions. (R. 131, 134).
At the January 25, 2012 hearing before the ALJ, Plaintiff testified that she
has difficulty spelling and reading, and lost “every job I really had” because she
8

gets “stressed and really anxious.” (R. 342, 344). She believes that she cannot
work due to “issues with money,” bad attendance, “bad anxiety,” and depression,
and also describes herself as compulsive with OCD “in some areas.” By way of
explanation, Plaintiff noted that everything needs to be how she wants it, and she
has kept a log of what her baby eats and when she’s finished eating it. (R. 34546). Plaintiff told the ALJ she had stopped seeing a psychiatrist a couple of
years earlier because they wanted to put her on medication that made her sick
and she was “afraid of that.” (R. 346-47). She acknowledged being able to drive
to the store alone and socialize with friends, but said she cannot care for herself
and her child financially. (R. 348).
C.

Testimony from Plaintiff’s Mother and Stepfather
On August 10, 2010, Plaintiff’s mother, Janine Tasson, completed a

Function Report – Third Party in support of her daughter’s disability application.
(R. 100-07). Ms. Tasson stated that Plaintiff cannot remember procedures, count
money, comprehend what she reads, or maintain schedules. (R. 100). She also
wakes up afraid and complaining about physical ailments, and wants her mother
nearby.

(R. 101).

Plaintiff can care for pets, clean, do laundry, shop, and

communicate via phone, text or computer, but she has no ability to handle
money. (R. 102-04). Ms. Tasson indicated that her daughter struggles with
memory,

completing

tasks,

concentration,

understanding,

and

following

instructions, and she can only pay attention for 5 to 10 minutes at a time. (R.
105). Though she gets along well with others, she does not handle stress well
and suffers from loneliness, depression, anxiety and obsessive behaviors. (R.
9

106). Plaintiff refuses to take medication to help with these conditions due to
side effects. (R. 107).
Plaintiff’s stepfather, Lou Tasson, completed a Function Report – Third
Party on January 26, 2011. (R. 120-28). He stated that Plaintiff has “extreme
difficulties with everyday tasks,” a “very hard time focusing on the task at hand,”
and “very limited reading comprehension.” (R. 120). Her math skills are “non
existent” and she cannot remember procedures or maintain schedules. (Id.). Mr.
Tasson indicated that Plaintiff is afraid to take her medication and needs
reminders for “just about everything she needs to accomplish.” (R. 122). She
can follow oral instructions as long as they are short, but she cannot follow
written instructions, is unable to handle stress, and is afraid of being alone
because she thinks someone is going to enter the house. (R. 125-26).
At the January 2012 hearing, Mr. Tasson testified that Plaintiff cannot hold
a job because of severe anxiety. She is “very afraid at all times” and finds it “very
hard” to take direction. (R. 352). She cannot handle money at all and requires
daily instruction even to remember to sweep the floor before mopping. (R. 353).
Mrs. Tasson testified that Plaintiff’s main problem is her low IQ. She does not
comprehend things and sometimes says she does when she does not. (R. 356).
Plaintiff also goes through periods where she is “real high, running around like
crazy,” and then “all of a sudden” she “starts coming down” and gets “very low.”
(R. 357).

10

D.

Administrative Law Judge’s Decision
The ALJ found that Plaintiff’s cognitive disorder, anxiety, depression, and

obsessive-compulsive disorder are severe impairments, but that they do not
meet or equal any of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (R. 19-21). After reviewing the medical and testimonial evidence,
the ALJ determined that Plaintiff has the capacity to work at all exertional levels
except that she is limited to performing unskilled work involving simple, routine
tasks in a routine structure with no decision-making. (R. 22). The ALJ noted that
this RFC is consistent with the ME’s testimony, which he assigned significant
weight, as well as the overall record. (R. 24). The ALJ acknowledged Dr. Voss’s
opinion that Plaintiff can make simple work-related decisions, but credited
Plaintiff’s testimony regarding anxiety in finding that she is “best suited to work in
an environment that did not involve decision-making” as stated by the ME. (Id.).
Given this RFC, the ALJ held that there are a significant number of jobs Plaintiff
can perform such that she is not disabled within the meaning of the Social
Security Act and not entitled to benefits. (R. 24-25).
DISCUSSION
A.

Standard of Review
Judicial review of the Commissioner’s final decision is authorized by

Section 405(g) of the Social Security Act. See 42 U.S.C. § 405(g). In reviewing
this decision, the Court may not engage in its own analysis of whether Plaintiff is
severely impaired as defined by the Social Security Regulations.
Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004) (citation omitted).
11

Young v.
Nor may it

“displace the ALJ’s judgment by reconsidering facts or evidence or making
credibility determinations.” Castile v. Astrue, 617 F.3d 923, 926 (7th Cir. 2010)
(quoting Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007)). The court’s task
is to determine whether the ALJ’s decision is supported by substantial evidence,
which is “‘such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” McKinzey v. Astrue, 641 F.3d 884, 889 (7th
Cir. 2011) (quoting Skinner, 478 F.3d at 841).
In making this determination, the court must “look to whether the ALJ built
an ‘accurate and logical bridge’ from the evidence to her conclusion that the
claimant is not disabled.” Simila v. Astrue, 573 F.3d 503, 513 (7th Cir. 2009)
(quoting Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008)).

Where the

Commissioner’s decision “‘lacks evidentiary support or is so poorly articulated as
to prevent meaningful review,’ a remand is required.” Hopgood ex rel. L.G. v.
Astrue, 578 F.3d 696, 698 (7th Cir. 2009) (quoting Steele v. Barnhart, 290 F.3d
936, 940 (7th Cir. 2002)).
B.

Five-Step Inquiry
To recover SSI under Title XVI of the Social Security Act, a claimant must

establish that she is disabled within the meaning of the Act.

42 U.S.C. '

1382c(a)(3); Rapsin v. Astrue, No. 10 C 318, 2011 WL 3704227, at *5 (N.D. Ill.
Aug. 22, 2011). A person is disabled if she is unable to perform Aany substantial
gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can
be expected to last for a continuous period of not less than twelve months.@ 42
12

U.S.C. § 1382c(a)(3)(A).

In determining whether a claimant suffers from a

disability, the ALJ conducts a standard five-step inquiry: (1) Is the claimant
presently unemployed? (2) Is the claimant=s impairment severe? (3) Does the
impairment meet or equal one of a list of specific impairments enumerated in the
regulations? (4) Is the claimant unable to perform her former occupation? and
(5) Is the claimant unable to perform any other work?

See 20 C.F.R. ''

404.1520, 416.920; Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000).
C.

Analysis
Plaintiff claims that the ALJ’s decision must be reversed because he:

erred in finding that she does not meet or medically equal Listing 12.05 for
mental retardation; (2) made a flawed credibility determination; (3) made a flawed
RFC assessment; and (4) improperly relied on the Grids to find her capable of
performing a substantial number of jobs.
1.

Listing 12.05

Plaintiff first argues that the ALJ should have found that she meets or
equals Listing 12.05(C) or (D).

Listing 12.05 relates to persons who have

“significantly subaverage general intellectual functioning with deficits in adaptive
functioning initially manifested during the developmental period . . . before age
22.” Fischer v. Barnhart, 129 Fed. Appx. 297, 301 (7th Cir. 2005) (quoting 20
C.F.R. Pt. 404, Subpt. P, Appendix I, § 12.05). The phrase “adaptive functioning”
refers to a person’s ability to perform activities of daily living and social
functioning. Id. at 301-02. See also Novy v. Astrue, 497 F.3d 708, 710 (7th Cir.

13

2007) (claimant must show that she is unable to “cope with the challenges of
ordinary everyday life.”).
If an individual makes this threshold showing, she must still demonstrate a
certain “level of severity” for the disorder. Id. at 302. This can be done under
12.05(C) if a claimant has (1) an FSIQ of 60 through 70, and (2) a physical or
other mental impairment imposing an additional and significant work-related
limitation of function.” 20 C.F.R. Pt. 404, Subpt. P, Appendix I, § 12.05(C). The
severity showing of 12.05(D) is satisfied if the claimant has an FSIQ of 60
through 70 and at least two of the following: (a) marked restriction of activities of
daily living; (b) marked difficulties in maintaining social functioning; (c) marked
difficulties in maintaining concentration, persistence or pace; or (d) repeated
episodes of decompensation, each of extended duration. Id. § 12.05(D). At all
times, the claimant “bears the burden of proving h[er] impairment meets a listing,
and [she] must meet each of the requirements set forth in the listing.” Knox v.
Astrue, 572 F. Supp. 2d 926, 935 (N.D. Ill. 2008) (citing Ribaudo v. Barnhart, 458
F.3d 580, 583 (7th Cir. 2006)).
The ALJ accepted the ME’s testimony that Plaintiff did not meet Listing
12.05 because she has only mild restrictions in her activities of daily living, no
difficulties in social functioning, and no episodes of decompensation. (R. 20).
After noting the preliminary criteria for 12.05, including subaverage intellectual
functioning and deficits in adaptive functioning, (R. 19), the ALJ went on to
discuss the level of severity requirements. With respect to subsection (C), the
ALJ acknowledged that Plaintiff has an FSIQ of 67, which is within the pertinent
14

range. He also observed, however, that despite a diagnosis of depression and
complaints of anxiety and OCD, Plaintiff has not received any regular mental
health treatment to address those issues.

(R. 20).

In that regard, Plaintiff

stopped seeing Dr. Gavino in October 2009 and apparently only returned for
treatment again a week prior to the hearing in January 2012. (R. 23). The ALJ
also noted that Plaintiff “demonstrates significant strengths” that would help her
in a work environment. For example, school records indicate that Plaintiff “is
organized, willing to ask questions whenever she is in doubt, and able to
complete her work timely given examples and repetition,” and that she is “able to
multitask with assignments and has a lot of energy and an outgoing personality.”
(R. 20, 172, 193).

Plaintiff also repeatedly expressed interest in going to

cosmetology school and pursuing a career in that area. (R. 20).
As for subsection (D), the ALJ found no evidence that Plaintiff has marked
limitations in any of the required areas of functioning, or repeated episodes of
decompensation. (R. 20-21). Dr. NieKamp assessed Plaintiff with a GAF score
of 60, representing only moderate symptoms, (R. 276), and Dr. Voss similarly
found only moderate limitations in concentration, persistence or pace; mild
difficulties in social functioning and activities of daily living; and no episodes of
decompensation. (R. 305). Though Plaintiff has problems handling money, she
can “independently care for her personal hygiene needs, a 6-month old infant
child and two pet dogs.” In addition, she can drive, prepare simple meals, clean,
shop, and do the laundry, and she enjoys spending time with friends and has
been described as pleasant, funny and polite.
15

(R. 21).

These findings are

consistent with Dr. Sherman’s observation that Plaintiff was “independent for
household chores, travel and personal hygiene,” and was able to articulate her
ideas well with adequate judgment and no pervasive symptoms of emotional
distress. (R. 290).
Plaintiff does not claim to have the requisite deficits in “adaptive
functioning” for purposes of 12.05, or raise any related challenge to the ALJ’s
decision. As a result, Plaintiff has not met her burden of showing that she meets
“each of the requirements set forth in the listing.” Knox, 572 F. Supp. 2d at 935
(emphasis added). Moreover, the ALJ’s decision details evidence demonstrating
that Plaintiff is in fact able to “cope with the challenges of ordinary everyday life.”
Novy, 497 F.3d at 710. Specifically, she can care for an infant, pets and her own
personal hygiene; drive; clean; shop; and do laundry; and she enjoys hanging out
with friends. She also testified that she could live alone if she did not have to
deal with money. (R. 18-19). See, e.g., Charette v. Astrue, 508 Fed. Appx. 551,
553-54 (7th Cir. 2013) (plaintiff did not establish deficits in adaptive functioning
where he lived independently, managed household chores, took care of his pets,
and socialized with other people).
Plaintiff attempts to minimize this evidence by citing testimony from
herself, her mother and her stepfather that: she only drives two times a month
and rarely alone (R. 103, 123); she does not drive far because she cannot follow
directions (R. 346); she has to “fix” a pile of laundry if it is not how she likes it
(id.); she has difficulty trusting others (R. 269 (self report to Dr. NieKamp)); and
she does not do a lot with her “couple of friends” except shop when they have
16

money.

(R. 269, 348; Doc. 17, at 10).

Plaintiff fails to explain how these

statements refute opinions from Dr. Voss and the ME that she has at most mild
difficulties in maintaining social functioning and carrying out activities of daily
living; that she does not meet or medically equal Listing 12.05; and that she can
perform simple work. (R. 20, 299, 305, 360). Nor does she articulate how the
statements prove that she is incapable of coping with the challenges of ordinary,
everyday life as contemplated by the listing.
“A condition that meets only some of the required medical criteria, ‘no
matter how severely,’ does not meet a listing.” Brown v. Astrue, No. 2:11-CV00225, 2012 WL 3987184, at *7 (N.D. Ind. Sept. 11, 2012). Since the adaptive
functioning element must be satisfied “in addition to the specific requirements
articulated in Listing 12.05C” or D, Plaintiff has not met her burden at step three
of the analysis. Heckathorne v. Astrue, No. 1:11-CV-00323, 2012 WL 2721916,
at *6 (N.D. Ind. July 9, 2012) (emphasis in original). As the Seventh Circuit has
explained, “a low IQ, but not an IQ below 60, is insufficient, even with the
presence of some impairment, to establish disability per se on grounds of mental
retardation. The reason is that persons with an IQ in the 60s (or even lower) may
still be able to hold a full-time job.”

Novy, 497 F.3d at 709-10 (noting that

employment opportunities for individuals with low IQs “are of course limited,” but
that “the social security disability program is not an unemployment-benefits
law.”).
Even assuming Plaintiff could show the necessary deficits in adaptive
functioning, there is insufficient evidence that she also meets the requirements of
17

subsections (C) or (D). Contrary to Plaintiff’s assertion, no physician of record
diagnosed her with a learning disability that would preclude her from all gainful
employment pursuant to subsection (C).

(Doc. 17, at 8).

Despite noting a

“reported” diagnosis of learning disability, Dr. NieKamp opined that Plaintiff would
“flourish in an environment (i.e. home, educational, and vocational) that provides
a consistent structure/routine and clear/ample prompts,” (R. 271), and he
anticipated that she could work in “entry level positions.”3 (R. 275-76). Dr. Voss
similarly concluded that Plaintiff can understand and remember short
instructions, complete one and two-step tasks, and adapt adequately to
workplace situations notwithstanding her problems with memory, concentration
and information processing. (R. 293). The ME likewise agreed that Plaintiff can
perform simple tasks in a routine and unchanging structure. (R. 361).
All three physicians were aware of Plaintiff’s medical history and special
education needs, and Plaintiff does not point to any other medical source who
found that she has greater limitations sufficient to meet Listing 12.05(C). (R.
269-71, 307, 361).

In addition, far from ignoring Plaintiff’s psychological

limitations, the ALJ expressly discussed her difficulties with concentration,
memory, and “processing and utilizing needed information.” (R. 20-23). On this
record, there is no merit to Plaintiff’s claim that the ALJ erred by adopting the
ME’s testimony, or in any way disregarded her mental deficits. (Doc. 17, at 8, 9).

3

Plaintiff claims, without supporting citation, that “[t]he national economy does not
provide significant numbers of jobs” for a person who needs a structured work
environment. (Doc. 17, at 9). Such “undeveloped arguments” that are “unsupported by
pertinent authority are waived.” United States v. Elst, 579 F.3d 740, 743 (7th Cir. 2009).

18

With respect to subsection (D), Plaintiff fails to identify any physician who
found her to have marked limitations in any of the required areas of functioning,
or any episodes of decompensation. (R. 21). As a result, there is no merit to
Plaintiff’s assertion that the ALJ somehow “cherry-picked” evidence to support
his conclusion while ignoring contrary findings. (Doc. 17, at 10). Cf. Scott v.
Astrue, 647 F.3d 734, 739-40 (7th Cir. 2011) (where physician’s notes reflected
that the plaintiff experienced “mixed results” from her treatment, the ALJ erred in
focusing only on the positive findings); Perkins v. Astrue, 498 Fed. Appx. 641,
643 (7th Cir. 2013) (remand required where the ALJ “failed to acknowledge that a
cardiologist characterized [the claimant’s] heart failure as Class III,” disregarded
physician notes stating that the claimant’s hypertension was uncontrolled, and
discounted other records noting “how poorly [the claimant’s] heart was pumping
blood.”). Plaintiff may believe that her limitations in activities of daily living and
social functioning are more than mild, but that in no way establishes that she
suffers from the necessary marked limitations in those or any other area. (Doc.
17, at 9-10).
Viewing the record as a whole, the ALJ’s conclusion that Plaintiff is not
presumptively disabled by mental retardation under Listing 12.05 is supported by
substantial evidence.
2.

Credibility Assessment

Plaintiff next argues that the ALJ erred in finding her testimony not fully
credible.

In assessing a claimant’s credibility, an ALJ must first determine

whether the symptoms are supported by medical evidence. See SSR 96-7p, at
19

*2; Arnold v. Barnhart, 473 F.3d 816, 822 (7th Cir. 2007). If not, SSR 96-7p
requires the ALJ to consider “the entire case record, including the objective
medical evidence, the individual’s own statements about symptoms, statements
and other information provided by treating or examining physicians or
psychologists and other persons about the symptoms and how they affect the
individual, and other relevant evidence in the case record.” Arnold, 473 F.3d at
822. See also 20 C.F.R. § 404.1529; Carradine v. Barnhart, 360 F.3d 751, 775
(7th Cir. 2004). Because hearing officers are in the best position to evaluate a
witness’s credibility, their assessment should be reversed only if “patently
wrong.” Castile, 617 F.3d at 929; Elder v. Astrue, 529 F.3d 408, 413-14 (7th Cir.
2008).
Plaintiff objects to the ALJ’s use of the following boilerplate credibility
language: Plaintiff’s “medically determinable impairments could reasonably be
expected to cause the alleged symptoms” but her “statements concerning the
intensity, persistence and limiting effects of these symptoms are not credible to
the extent they are inconsistent with the” stated RFC assessment. (R. 22). The
Seventh Circuit has repeatedly criticized this template as “unhelpful” and
“meaningless,” noting that the “hackneyed language seen universally in ALJ
decisions adds nothing” to a credibility analysis. Shauger v. Astrue, 675 F.3d
690, 696 (7th Cir. 2012). See also Bjornson v. Astrue, 671 F.3d 640, 645 (7th Cir.
2012) (the template “implies that ability to work is determined first and is then
used to determine the claimant’s credibility. That gets things backwards.”).

20

That said, the use of boilerplate language will not alone provide a basis for
remand as long as “the ALJ said more” and gave reasons for not finding the
plaintiff’s testimony fully credible. Richison v. Astrue, 462 Fed. Appx. 622, 625
(7th Cir. 2012) (no error where ALJ used boilerplate language but then went on
to question the plaintiff’s testimony about resting and napping all day “given that
he went hunting and apparently attempted to work on his car.”).

Defendant

argues that the ALJ said more in this case by weaving his analysis into the
discussion and discounting Plaintiff’s testimony based on “her part time work
activity; her sporadic treatment history; her non-compliance with prescribed
treatment regimen; her daily activities; and the degree to which objective medical
evidence supported the alleged severity of her impairments.” (Doc. 25, at 7-8)
(citing Sawyer v. Colvin, 512 Fed. Appx. 603, 608 (7th Cir. 2013)) (“That some of
th[e] support for the ALJ’s credibility assessment is woven into his analysis of
[the plaintiff’s] residual functional capacity, rather than a discussion limited to
credibility, is insignificant.

The regulations anticipate overlap.”).

The Court

agrees.
The ALJ discussed Plaintiff’s complaints of disabling anxiety and
depression, but also noted that she had not been “compliant with the medication
regimen prescribed to help her control these symptoms.” (R. 23). The ALJ
acknowledged Plaintiff’s testimony that she stopped taking the medication due to
the side effects, but found it significant that she also quit her mental health
treatment altogether as a result. (R. 18, 23). In that regard, Plaintiff told Dr.
Sherman that “because she kept forgetting to take her psychotropic medications,
21

she decided to just cancel her mental health appointments as well.” (R. 23). And
even without the medication or therapy, Plaintiff has “no history of psychiatric
hospitalizations.” (R. 23). The ALJ reasonably concluded that Plaintiff’s failure to
pursue mental health care for more than a year prior to the hearing undermined
her claims of disabling anxiety and depression. Shauger, 675 F.3d at 696 (“[A]
history of sporadic treatment . . . can undermine a claimant’s credibility.”). Cf.
Gillim v. Astrue, No. 11 C 7146, 2013 WL 1901630, at *6 (N.D. Ill. May 7, 2013)
(finding only that “a lack of psychiatric emergency room visits is not a sufficient
reason for rejecting a severe mental impairment at step two.”).
In discussing Plaintiff’s OCD, the ALJ noted that she needs things to be
neat and tidy, likes unwrinkled linens, sometimes re-cleans the house, and logs
her daughter’s food intake. (R. 23). He also observed, however, that the only
evidence of an OCD diagnosis is from Dr. Sherman, who apparently based that
opinion on Plaintiff’s subjective allegations. (Id.). See Davis v. Barnhart, 187 F.
Supp. 2d 1050, 1057 (N.D. Ill. 2002) (ALJ properly discounted expert opinion
where it was “a diagnosis based on subjective complaints.”). Plaintiff decided not
to seek any related medical treatment, but still reported being able to engage in a
wide variety of activities of daily living, including driving, doing laundry, preparing
simple meals, cleaning, shopping, hanging out with friends, and caring for
personal hygiene, her infant daughter, and pets. (R. 21). See Filus v. Astrue,
694 F.3d 863, 869 (7th Cir. 2012) (“[A]n ALJ must consider the claimant’s daily
activities” in assessing credibility).

22

With respect to Plaintiff’s mental abilities, the ALJ discussed her low FSIQ
and difficulties with reading comprehension, math, and memory skills, but also
cited contradictory school record evidence reflecting “various and significant
strengths.” (R. 22). For example, Plaintiff has been described as organized,
willing to ask questions when in doubt, and able to multitask, and she
demonstrated “the capacity to hold information such as lists of numbers, letters,
or discrete bits of information in her memory for reasonable periods of time.” (R.
22-23, 210).

Plaintiff disputes that this evidence has any bearing on her

credibility, professing to not even understand the meaning of the word “multitask”
that appears in her IEP. (Doc. 17, at 12). It was not patently wrong, however, for
the ALJ to consider such “statements and other information provided by . . . other
persons about the symptoms and how they affect the individual.” Arnold, 473
F.3d at 822.
Plaintiff claims that some of the ALJ’s other observations likewise provide
no reasonable basis for discounting her testimony. For example, the ALJ noted
that Plaintiff “earned mostly A’s, B’s, and C’s in her classes,” (R. 22), but did not
mention that these grades were “unweighted” and thus not reflective of “similar
grades in mainstream classes.” (Doc. 17, at 12 (citing R. 160)). In addition, the
ALJ discussed Plaintiff’s desire to attend cosmetology school but did not explain
why this demonstrates that she is actually capable of working in that or any other
field. (Id.). It is not clear to this Court that the ALJ affirmatively challenged
Plaintiff’s testimony based on the cited evidence, which also provides
background on her medical condition.

Regardless, it is well-established that
23

“even if the court finds some of the ALJ’s reasons flawed, it will affirm so long as
substantial evidence supports the credibility determination overall.” Felmey v.
Colvin, No. 13-C-219, 2013 WL 4502090, at *13 (E.D. Wis. Aug. 22, 2013) (citing
McKinzey, 641 F.3d at 890-91). As discussed, the ALJ explained that Plaintiff
was not fully credible for several valid reasons, including her lack of mental
health treatment, her fairly extensive activities of daily living, and the objective
school and medical evidence. These rationales more than suffice as substantial
evidence supporting the ALJ’s credibility determination. See Halsell v. Astrue,
357 Fed. Appx. 717, 722 (7th Cir. 2009) (“Not all of the ALJ’s reasons must be
valid as long as enough of them are.”) (emphasis in original).
Plaintiff cannot avoid this result by “nitpicking” at the decision to find
factual details the ALJ did not mention, such as evidence that at age 17, her IEP
indicated that she read at a 5.6 grade level, did math at a 3.5 grade level, and
wrote at a 7.2 grade level. (Doc. 17, at 12). An ALJ “is not required to mention
every piece of evidence” as long as he builds “an accurate and logical bridge
between the evidence and the conclusion that the claimant is not disabled.”
Craft, 539 F.3d at 673 (internal quotations omitted).

Here, the ALJ clearly

considered Plaintiff’s IEPs along with other relevant evidence in accordance with
SSR 96-7p, and the Court can trace his reasons for discounting Plaintiff’s
testimony. On the record presented, the ALJ’s credibility finding is not patently
wrong. Elder, 529 F.3d at 413-14; Simila, 573 F.3d at 517 (an ALJ’s credibility
determination is entitled to “deference, for an ALJ, not a reviewing court, is in the
best position to evaluate credibility.”); Rice v. Barnhart, 384 F.3d 363, 369 (7th
24

Cir. 2004) (court will “give the opinion a commonsensical reading rather than
nitpicking at it.”).
3.

RFC Determination

Plaintiff argues that the case must still be reversed based on the ALJ’s
flawed RFC determination. A claimant’s RFC is the maximum work that she can
perform despite any limitations. 20 C.F.R. § 404.1545(a)(1); SSR 96-8p. The
RFC determination is a legal decision rather than a medical one. 20 C.F.R. §
404.1527(d)(2).

“When determining the RFC, the ALJ must consider all

medically determinable impairments, . . . even those that are not considered
‘severe.’” Craft, 539 F.3d at 676.
The ALJ found that Plaintiff can work at all exertional levels except that
she is limited to performing unskilled work involving simple, routine tasks in a
routine structure with no decision-making.

(R. 22).

This finding is amply

supported by the available medical evidence, including: (1) Dr. NieKamp’s June
2010 assessment that Plaintiff would likely “flourish in an environment (i.e. home,
educational, and vocational) that provides a consistent structure/routine and
clear/ample prompts,” though she would be limited to “entry level positions” (R.
271, 276) (emphasis added); (2) Dr. Voss’s March 2011 assessment that Plaintiff
can “understand and remember short instructions and complete simple one and
two-step tasks”; “maintain attention, concentration and persistence necessary to
carry out simple one and two-step tasks at a consistent pace over a regular 40 hr
work week”; “adapt adequately to work situations and changes that occur in the
usual workplace with reasonable support and structure”; “be aware of normal
25

hazards, plan independently and set realistic goals”; and “use public
transportation or travel independently in unfamiliar settings” (R. 293); and (3) the
ME’s testimony that Plaintiff can perform simple tasks in a routine and
unchanging structure. (R. 361).
Given that the ALJ cited to and discussed all of this evidence, along with
Plaintiff’s school records and reported activities of daily living, (R. 20, 22-24),
there is absolutely no merit to Plaintiff’s argument that the ALJ somehow failed to
consider her mental impairments in determining an RFC, or improperly relied on
the ME’s opinion in that regard. (Doc. 17, at 13-15). The ME did express some
confusion as to whether she should consider the hearing testimony as part of her
medical analysis, (R. 366-67), but there can be no dispute that the ALJ
considered that evidence. (R. 18-19, 23). Moreover, Plaintiff does not point to
any medical evidence that either contradicts the stated RFC or suggests she has
more severe limitations. See Compean v. Astrue, No. 09 C 5835, 2011 WL
1158191, at *8 (N.D. Ill. Mar. 28, 2011) (citing Rice, 384 F.3d at 370) (the ALJ
Awas entitled to rely upon the opinion of the state agency physician, particularly
where no physician imposed any greater functional limitations than those found
by the ALJ in her RFC determination.@). Plaintiff may believe that her anxiety and
low FSIQ render her incapable of working without excessive levels of supervision
or assistance, (Doc. 17, at 14-15), but that is wholly insufficient to reverse the
ALJ’s decision absent any corroborating medical evidence.

26

The Court also finds no support for Plaintiff’s assertion that the ALJ
neglected to apply the “special technique” in examining her mental impairment.4
(Doc. 17, at 13). The ALJ’s detailed analysis in that regard appears at R. 20-21,
and includes an assessment of all the relevant evidence. Once again, the ALJ’s
failure to specifically mention every piece of testimony and evidence in the
record, such as Plaintiff’s “difficulty with vocabulary above the 4th and 5th
grades,” (Doc. 17, at 13), in no way demonstrates that the ALJ failed to build a
logical bridge from the evidence to his conclusion. Shideler v. Astrue, 688 F.3d
306, 310 (7th Cir. 2012).

The ALJ’s RFC determination is supported by

substantial evidence, and Plaintiff’s motion for summary judgment on that basis
is denied.
4.

The Grids

Plaintiff finally objects to the ALJ’s reliance on section 204.00 of the Grids
in finding her capable of a significant number of jobs available in the national
economy. (Doc. 17, at 15). Where a claimant “has no exertional limitations, the
ALJ appropriately refer[s] to section 204.00 of the Grid.” Goffron v. Astrue, 859
F. Supp. 2d 948, 960 (N.D. Ill. 2012). Here, Plaintiff does not claim to have any
exertional limitations, and the record reflects that none exist, so the ALJ’s
reliance on section 204.00 was entirely proper. Plaintiff objects that the Grids
cannot be used to direct a finding of not disabled where, as here a claimant

4

“The special technique requires that the ALJ evaluate the claimant’s ‘pertinent
symptoms, signs, and laboratory findings’ to determine whether the claimant has a
medically determinable mental impairment.” Craft, 539 F.3d at 674 (quoting 20 C.F.R. §
404.1520a(b)(1)).

27

suffers from nonexertional limitations. (Doc. 17, at 15) (citing Cannon v. Harris,
651 F.2d 513, 517 (7th Cir. 1981)). This argument ignores the fact that the ALJ
did not rely exclusively on the Grids but also cited to SSR 85-15. (R. 25).
SSR 85-15 states that “[w]here there is no exertional impairment, unskilled
jobs at all levels of exertion constitute the potential occupational base for persons
who can meet the mental demands of unskilled work.” Goffron, 859 F. Supp. 2d
at 961 (quoting SSR 85-15, 1985 WL 56857, at *4). According to the Social
Security Administration, an RFC of “unskilled” work is appropriate where “the
claimant has the ability to understand, carry out, and remember simple
instructions; respond appropriately to supervision, coworkers, and usual work
situations; and deal with changes in a routine work setting.” Craft, 539 F.3d at
677 (citing 20 C.F.R. § 404.1545(c)). As discussed earlier, every physician of
record agreed that Plaintiff is capable of those unskilled functions. Thus, the ALJ
reasonably concluded that there are a significant number of jobs available to a
person with Plaintiff’s RFC.5 See Goffron, 859 F. Supp. 2d at 962 (where the
plaintiff suffered from only nonexertional limitations, the ALJ “appropriately used
[section 204 of] the Grid as a framework, in combination with other guidance from
relevant Social Security Rulings [including SSR 85-15], to determine that a
significant number of jobs exist in the national economy that Claimant can
perform.”)

5

The Court notes that portions of Plaintiff’s brief are somewhat muddled, making
the arguments difficult to decipher. To the extent she intended to assert additional
grounds for reversal not specifically addressed here, those arguments are inadequately
developed and therefore waived. Elst, 579 F.3d at 743.

28

CONCLUSION
For the reasons stated above, Plaintiff’s Motion for Summary Judgment
(Doc. 16) is denied, and Defendant’s Motion for Summary Judgment (Doc. 24) is
granted. The Clerk is directed to enter judgment in favor of Defendant.
ENTER:
Dated: May 30, 2014

_____________________________
SHEILA FINNEGAN
United States Magistrate Judge

29