Harvey v. Colvin

Filing 31

MEMORANDUM Opinion and Order Signed by the Honorable Young B. Kim on 5/28/2015. (ma,)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOHN HARVEY,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,
Defendant.

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No. 13 CV 3247
Magistrate Judge Young B. Kim

May 28, 2015

MEMORANDUM OPINION and ORDER
After John Harvey sustained a workplace back injury and underwent spinal
surgery, an administrative law judge (“ALJ”) found that he was entitled to receive
disability insurance benefits (“DIB”) for the period from April 4, 2007, through July
8, 2008. In April 2010 Harvey filed a new DIB application based on his claim that
he remains totally disabled by back pain. After an ALJ denied his application and
the Appeals Council declined his request for review, Harvey filed the current
lawsuit seeking judicial review. See 42 U.S.C. § 405(g). Before the court are the
parties’ cross motions for summary judgment. For the following reasons, Harvey’s
motion for summary judgment is denied and the government’s motion is granted:
Procedural History
Harvey initially applied for DIB in October 2008, claiming a disability onset
date of April 2, 2007. (Administrative Record “A.R.” 22.) In February 2010, an ALJ
found that Harvey was disabled from April 4, 2007, through July 8, 2008, but that

his disability ended on July 9, 2008. (Id. at 34.) Two months later, Harvey filed the
DIB application underlying this appeal, again claiming a disability onset date of
April 2, 2007.

(Id. at 138-39.)

After his claim was denied initially and upon

reconsideration, (id. at 71-72), Harvey requested and was granted a hearing before
an ALJ.

That hearing took place on September 8, 2011.

(Id. at 35-70.)

On

November 7, 2011, the assigned ALJ issued a decision determining that res judicata
prevents her from reconsidering Harvey’s DIB eligibility for the period covered by
the first decision awarding him benefits.

(Id. at 534.)

Turning to the period

between July 9, 2008, and the date of her decision, the ALJ concluded that Harvey
was not disabled during that period. (Id. at 543.) The Appeals Council declined to
review the ALJ’s decision, (id. at 1-6), making it the final decision of the
Commissioner of the Social Security Administration, see Schomas v. Colvin, 732
F.3d 702, 707 (7th Cir. 2013). Harvey then filed this lawsuit seeking judicial review
of the Commissioner’s decision, see 42 U.S.C. § 405(g), and the parties consented to
this court’s jurisdiction, (R. 6); see 28 U.S.C. § 636(c).
Facts
In April 2007 Harvey was on the job as an iron worker when he lost control of
a 300-pound beam he was carrying on his shoulder, causing him to twist and injure
his back.

(A.R. 519.)

He was diagnosed with a disc hernia and treated with

physical therapy and steroids, but when those treatments did not work, he
underwent back surgery in December 2007.

(Id. at 420, 519.)

Harvey never

returned to work and claims that his back pain only worsened after his surgery. At

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his hearing before the ALJ, Harvey submitted both documentary and testimonial
evidence in support of his claim that he remained totally disabled by back pain after
July 8, 2008.1
A.

Medical Evidence
In July 2008, seven months after his back surgery, Harvey went to see

Dr. Mark Lorenz, his orthopedist, reporting a pain level of seven or eight out of ten.
(A.R. 286.) Dr. Lorenz found him to be at maximum medical improvement from a
surgical perspective and referred him to a pain clinic. (Id.) Dr. Lorenz further
recommended vocational rehabilitation, with restrictions on repetitive bending or
squatting and on lifting more than 12 pounds frequently and 21 pounds
occasionally. (Id.) Dr. Lorenz wrote that Harvey could sit or stand “as tolerated.”
(Id.)
That same month Harvey sought treatment with Dr. Gary Koehn at a pain
management center.

Dr. Koehn examined Harvey and found tenderness in his

lumbar paraspinous region with a loss of flexibility and symmetric weakness in his
lower extremities. (Id. at 337.) His impression was that Harvey was suffering from
persistent back pain that noticeably impacts his activity and lifestyle and markedly
disrupts his rehabilitation. (Id.) Dr. Koehn added a Neurontin trial to Harvey’s
Norco prescription and came up with a medication injection strategy. (Id. at 338.)

In his brief to this court, Harvey does not challenge the ALJ’s decision not to
reopen his case with respect to the period for which a different ALJ granted him
DIB: April 4, 2007, through July 8, 2008. (R. 22, Pl.’s Br. at 1 n.1.) Accordingly, the
relevant period for purposes of this court’s review begins on July 9, 2008, and runs
through the date of the ALJ’s decision.

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Dr. Koehn administered steroid injections to Harvey in July and August 2008, after
which he reported a 40% reduction in his pain. (Id. at 333, 459.) At the end of
August Dr. Koehn wrote, “I am happy with [his] progress but not his state.” (Id. at
459.) At Harvey’s last visit in November 2008, Dr. Koehn recommended he use
Tylenol for symptom control and return to the pain clinic only as needed. (Id. at
463-64.)
In January 2009 Harvey returned to Dr. Lorenz, who noted that Harvey
displayed difficulty with forward flexion past five degrees of motion and with
extension, but observed that he had negative straight leg testing and his strength
was at five out of five. (Id. at 285.) Dr. Lorenz prescribed a cane for stability and
reaffirmed the same work restrictions he had assigned in July 2008. (Id.) That
same month, however, Harvey was examined by Dr. Thomas Carlson, who noted
that he had positive straight leg raising tests on both sides at 80 degrees. (Id. at
329.) Dr. Carlson observed that despite complaints of pain, Harvey was able to hold
his leg “in perfect position” at 80 degrees without the doctor’s support, which he
characterized as “very unusual for true lumbar disk pain.” (Id.) Dr. Carlson noted
that Harvey’s complaints of severe back pain would be “very difficult to disprove,”
and wrote that he did not think Harvey could return to any type of work. (Id.)
In March 2010 Harvey went to see chiropractor Keiry Lardi, reporting that
his pain was at an eight or nine out of ten. (Id. at 308.) He said that he was not
taking his pain medication because he could not afford it. (Id.) Lardi observed that
Harvey needed to move between sitting and standing during their interview

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because staying in one position was painful. (Id. at 309.) His straight leg tests were
positive at about 10 degrees and his flexion and extension were limited.

(Id.)

Following the examination Lardi wrote that she could not think of any work that
Harvey would be able to do and opined that he was “completely unemployable.” (Id.
at 310.)
Beginning in the spring of 2010 the doctor Harvey saw most frequently was
Dr. Spyro Analytis, who helped him with pain medications and with disability
paperwork. (Id. at 363.) In April 2010 Dr. Analytis wrote a letter on Harvey’s
behalf opining that based on lingering back-pain symptoms Harvey was limited in
bending, stooping, climbing, and lifting more than 10 pounds total or 5 pounds
repetitively. (Id. at 318.) He examined Harvey again in August 2010, noting that
he had a hard time bending and sitting for long periods. (Id. at 508.) By the fall of
2010 Dr. Analytis recommended that Harvey be reevaluated by a surgeon, based on
his worsening pain. (Id. at 507.) A year later, in the fall of 2011, Dr. Analytis
completed a residual functional capacity (“RFC”) form for Harvey, opining that he
can stand or walk less than two hours in an eight-hour day and can sit for only two
hours in an eight-hour day. (Id. at 515.) He further opined that Harvey can lift
fewer than 10 pounds occasionally and rarely lift 10 pounds or bend, crouch, or
climb. (Id. at 515-16.) He also predicted that Harvey is likely to be absent from
work more than four times a month because of his impairments. (Id. at 516.)
In the fall of 2011 Harvey took Dr. Analytis’s recommendation that he return
to a surgeon, visiting Dr. Rebecca Kuo. In September 2011 Dr. Kuo wrote that

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Harvey has severe pain with forward flexion at 30 degrees and with extension, but
that his strength was normal.

(Id. at 519.)

She saw no clear etiology for his

persistent back pain, describing his spinal fusion as “excellent.” (Id. at 520.) She
further noted that she was “having difficulty finding a significant amount of
objective findings” that would lead to a conclusion that he was disabled. (Id.) She
ordered an x-ray which showed no definite radiographic abnormalities, and a CT
scan which showed only mild right foraminal stenosis without significant nerve root
compression. (Id. at 525, 527.) Dr. Kuo wrote a letter to Dr. Analytis describing
Harvey’s condition as “failed back syndrome” without any other clear objective
findings. (Id. at 528.) Dr. Kuo did not doubt Harvey’s symptoms and encouraged
him to consider a spinal cord stimulator. (Id. at 518.)
The record also includes RFC assessments from several consulting
physicians. In June 2010 consulting physician Dr. Francis Vincent reviewed the
record and opined that Harvey can occasionally lift 20 pounds, frequently lift 10,
stand or walk for two hours, and sit for six. (Id. at 475.) He critiqued Dr. Analytis’s
RFC as being too heavily reliant on Harvey’s subjective complaints and as assigning
excessive lifting restrictions in light of the objective evidence and Harvey’s own
daily activity reports.

(Id. at 480-81.)

In October 2010 consulting physician

Dr. Sarat Yalamanchili examined Harvey and found that he had reduced lumbar
spine flexion and positive straight leg raise tests to 30 degrees.

(Id. at 493.)

Dr. Yalamanchili observed him having difficulty getting on and off the exam table
and walking on his heels. (Id. at 494.) He wrote that Harvey was able to walk 10

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feet without a cane and 70 with one.

(Id. at 495.)

The next day consulting

physician Barry Free reviewed the file and assigned the same RFC that Dr. Vincent
had assigned, except that he checked a box saying Harvey needs to use a cane and
that he is limited in his ability to reach. (Id. at 498-500.) Dr. Free wrote that he
agreed with Dr. Analytis’s assessment of Harvey’s bending, stooping, and climbing
limitations, but felt that his lifting restrictions were unsupported by the objective
record. (Id. at 503.) Dr. Free wrote that Harvey’s subjective statements were only
partially credible, given what he viewed as a disparity between Harvey’s description
of his symptoms and the objective evidence. (Id. at 504.)
B.

Harvey’s Hearing Testimony
At his September 2011 hearing before the ALJ, Harvey described the nature

and limiting impact of his back pain.

Harvey testified that his back pain has

intensified since his December 2007 surgery, making it difficult for him to sit or
stand for any period of time or to lift anything heavier than a half-gallon of milk.
(A.R. 45, 55.) Harvey explained that sitting down puts pressure on his spine so he
uses a recliner and keeps pillows under his knees. (Id. at 56.) Harvey said that he
is unable to sit or stand for more than an hour at a time. (Id. at 59.) He told the
ALJ that his pain during the hearing was a nine or ten out of ten, that his legs and
feet were numb and tingling, and that he was having muscle spasms in his back.
(Id. at 48-49.)
In describing his daily activities Harvey testified that on a typical day he
mostly sits in a recliner and uses his computer. (Id. at 45, 56.) He said that his

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mother and girlfriend help him with cleaning, his father or his nephew help him
take out his garbage, and he eats mostly ready-made meals. (Id. at 46, 55.) Harvey
testified that he drives short distances daily, and drives 25 miles to visit his young
daughter a couple of times a week.

(Id. at 46-47.)

He also said that he had

attempted to complete a training program for phlebotomy but was unsuccessful
because he had trouble bending over to draw patients’ blood. (Id. at 49.) Harvey
testified that he uses a cane to help with balance and that he has difficulty carrying
things. (Id. at 54-55.) He also said that the pain interferes with his sleep, making
it difficult for him to get more than three or four hours of sleep most nights. (Id. at
57.) When asked about medication side effects, he said Norco makes him red in the
face, hot, and dizzy. (Id.) Despite these difficulties, Harvey testified that he goes
out to socialize six to eight times a month, staying out for as long as three hours at a
time. (Id. at 61.)
C.

The ALJ’s Decision
On November 7, 2011, the ALJ issued a decision concluding that Harvey has

not been under a disability from July 9, 2008, through the date of her decision.
(A.R. 543.) In applying the standard five-step sequence for assessing disability, see
20 C.F.R. § 404.1520(a)(4); Schomas, 732 F.3d at 706-07, the ALJ found at steps one
and two that Harvey has not engaged in any substantial gainful activity since April
2, 2007, and that he has severe impairments including “status post spinal fusion
and degenerative disc disease” and “left shoulder impairment with history of
surgery in 2002,” (id. at 537). The ALJ then determined at step three that Harvey’s

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impairments do not meet or medically equal any listed impairment. (Id.) Before
turning to step four, the ALJ determined that Harvey retains the RFC for sedentary
work with the following additional limitations: he can occasionally climb ramps and
stairs but never ladders, ropes or scaffolds; he can occasionally balance, stoop,
kneel, crouch, and crawl; he can only occasionally reach overhead with his left
upper extremity; he must avoid concentrated exposure to hazards; and he must be
allowed to use a cane. (Id.) At step four the ALJ concluded that Harvey is unable to
return to any of his past relevant work, but at step five, she concluded that Harvey
can perform other jobs that exist in significant numbers in the national economy,
including Order Clerk, Telephone Quotation/Information Clerk, and Addresser. (Id.
at 541-42.) Accordingly, she concluded that Harvey is not disabled. (Id. at 543.)
Analysis
All of Harvey’s challenges to the ALJ’s decision relate to her findings at the
RFC stage. He argues that in crafting the RFC the ALJ failed to explain adequately
her decision to discount Dr. Analytis’s opinion, improperly accounted for Harvey’s
limitations in bending, and erroneously evaluated his credibility.

This court

reviews the ALJ’s decision only to ensure that it is based on the correct legal
criteria and supported by substantial evidence. See Eichstadt v. Astrue, 534 F.3d
663, 665 (7th Cir. 2008).

Substantial evidence is “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971). The ALJ is required to “build an accurate and
logical bridge between the evidence and the result to afford the claimant

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meaningful judicial review of the administrative findings.” Beardsley v. Colvin, 758
F.3d 834, 837 (7th Cir. 2014).

But this court is “not free to replace the ALJ’s

estimate of the medical evidence” with its own, see Berger v. Astrue, 516 F.3d 539,
544 (7th Cir. 2008), and must uphold the decision even where “reasonable minds
can differ over whether the applicant is disabled,” see Shideler v. Astrue, 688 F.3d
306, 310 (7th Cir. 2012).
A.

Treating Physician’s Opinion
Harvey first argues that the ALJ erred in giving “little weight” to

Dr. Analytis’s assessment of his RFC. A treating physician’s opinion is entitled to
controlling weight if it is supported by objective medical evidence and is not
inconsistent with other substantial evidence in the record.

See 20 C.F.R.

§ 404.1527(c)(2); Scott v. Astrue, 647 F.3d 734, 739 (7th Cir. 2011). Where the ALJ
discounts the treating doctor’s opinion, she must offer good reasons for doing so,
Scott, 647 F.3d at 739, such as that the opinion conflicts with that of a consulting
physician or is internally inconsistent, see Schmidt v. Astrue, 496 F.3d 833, 842 (7th
Cir. 2007). The regulations also direct the ALJ to consider a number of factors in
deciding what weight to ascribe a treating physician’s opinion, including the length,
nature, and frequency of the treatment relationship, the doctor’s specialization, and
the consistency and supportability of the opinion. See 20 C.F.R. § 404.1527(c); Moss
v. Astrue, 555 F.3d 556, 561 (7th Cir. 2009).
Here, the ALJ applied the requisite factors and provided good reasons
explaining her decision to ascribe little weight to Dr. Analytis’s RFC opinion. First

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the ALJ noted that Dr. Analytis is an internal medicine physician, not an
orthopedic or neurological specialist, and observed that Dr. Analytis saw Harvey
only six times in more than three years between July 2008 and September 2011.
(A.R. 540.) Turning to the consistency and supportability of Dr. Analytis’s RFC, see
20 C.F.R. § 404.1527(c)(3), (4), the ALJ noted that the sitting and standing
restrictions he assigned in his 2011 RFC were “far more limiting” than the
narrative RFC opinion he provided in April 2010, where he did not mention any
sitting or standing restrictions. (Id. at 318, 540.) The ALJ also observed that those
additional limitations could not be explained by any significant change in Harvey’s
subjective complaints, his treatment, or the objective medical evidence. (Id. at 540.)
The ALJ also noted that Harvey’s examining surgeons and the consultative
examiners did not ascribe similar limits. She further reasoned that Dr. Analytis’s
opinion that Harvey can sit for only two hours in an eight-hour day would
essentially leave him “nearly bedridden.” (Id.) The ALJ properly noted that such
extreme debilitation is out of proportion even to Harvey’s own testimony, in which
he described attending phlebotomy classes, leaving his house daily, regularly
driving over 50 miles roundtrip to visit with his daughter, and going out to socialize
with friends on a regular basis. (Id. at 538, 540); see Filus v. Astrue, 694 F.3d 863,
868 (7th Cir. 2012) (upholding ALJ’s decision to reject treating doctor’s opinion that
claimant could stand or sit only 30 minutes as inconsistent with claimant’s
testimony). Because the ALJ analyzed Dr. Analytis’s opinion in accordance with
the prescribed regulatory factors and because the reasons she gave for discounting

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his opinion are supported by the record, Harvey has not shown that she erred in
giving his RFC little weight.
Overlooking most of the reasons the ALJ gave for discounting Dr. Analytis’s
opinion, Harvey focuses his critique on her determination that Dr. Analytis’s
opinion is inconsistent with the findings of Drs. Kuo, Lorenz, and Yalamanchili.
(R. 22, Pl.’s Br. at 8.) According to Harvey, that reason is flawed because, he says,
“Dr. Analytis’s opinion is actually consistent with both Drs. Lorenz’s and Kuo’s
findings.” (Id. at 9.) Specifically, he points to Dr. Lorenz’s opinion that Harvey can
sit and stand “as tolerated” and Dr. Kuo’s suggestion that Harvey pursue treatment
using a spinal cord stimulator. (Id.) It is unclear what Dr. Kuo’s suggestion has to
do with Dr. Analytis’s opinion regarding sitting and standing, other than to confirm
that Harvey experiences back pain, which is not something that the ALJ doubted.
Dr. Kuo’s treatment suggestion sheds no light on the extent to which Harvey’s back
pain limited his functioning.

Additionally, Harvey’s assertion that Dr. Lorenz’s

opinion that he can sit “as tolerated” is consistent with Dr. Analytis’s opinion that
he can sit only two hours is based on nothing more than his own subjective
interpretation of those two records. It is the ALJ’s task, not the court’s, to weigh
this evidence and determine the extent of their consistency. Berger, 516 F.3d at
544.

Here the ALJ was well within bounds to find the opinions conflicting,

especially where Dr. Lorenz limited Harvey to lifting up to 21 pounds occasionally
and Dr. Analytis opined that he can lift no more than 10 pounds, ever. (A.R. 285,
318.) Despite Harvey’s assertion that the difference in lifting restrictions is easily

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explained by degeneration of his condition over time, he has not pointed to any
medical findings suggesting that his strength deteriorated in the intervening 15
months. On the contrary, 6 months after Dr. Analytis first opined that Harvey can
lift no more than 10 pounds, examining physician Dr. Yalamanchili found Harvey’s
upper extremity strength to be normal, with no muscle atrophy. (Id. at 318, 494.)
Moreover, Dr. Analytis opined that Harvey could lift no more than 10 pounds in
April 2010 and again in September 2011.

So rather than reflecting any

degenerative change, Dr. Analytis’s opinion with respect to his lifting ability
remained consistent over time. (Id. at 318, 515.)
Finally, at least with respect to this issue, Harvey argues that the ALJ “did
not provide sound reasons” for rejecting Dr. Analytis’s opinions because “an ALJ
cannot disbelieve a claimant’s testimony concerning his pain solely because it seems
in excess of the ‘objective’ medical testimony.” (R. 22, Pl.’s Br. at 9.) It is true that
an ALJ may not disregard a claimant’s subjective experience of pain solely because
it lacks an objective explanation, see Johnson v. Barnhart, 449 F.3d 804, 806 (7th
Cir. 2006), but how an ALJ should weigh a claimant’s testimony regarding pain is a
distinct question from how she should weigh a treating physician’s opinion. The
governing regulations and case law make clear that the supportability of a doctor’s
opinion—including the extent to which the doctor points to medical signs and
laboratory findings—is a factor the ALJ is required to consider.

See 20 C.F.R.

§ 404.1527(c); Moss, 555 F.3d at 561. Under these rules, the ALJ is entitled to
discount a treating doctor’s opinion regarding a claimant’s limitations if it is out of

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proportion to the medical evidence or based solely on the claimant’s subjective
complaints. See Ketelboeter v. Astrue, 550 F.3d 620, 625 (7th Cir. 2008). In any
event, here the ALJ did not rest her reasoning solely on a lack of objective evidence,
but rather analyzed Dr. Analytis’s opinion according to the factors set out in the
relevant regulation, explained why she could not square his opinion regarding the
“extreme” sitting limitation he assigned with the rest of the record evidence, and
then discussed why she found the opinions of Dr. Lorenz and the consulting
physicians to be entitled to more weight. (A.R. 540-41.) Because the ALJ’s decision
to give Dr. Analytis’s RFC opinion little weight was both reasonable and sufficiently
articulated, Harvey has not shown that she committed any reversible error with
respect to weighing his treating physician’s opinion. See Schmidt, 496 F.3d at 843.
B.

Harvey’s Bending Limitation
Next Harvey argues that the ALJ committed reversible error in assessing his

RFC, because, according to him, the ALJ failed to properly account for his
restrictions in bending.

Specifically, Harvey argues that the limitation to only

occasional bending conflicts with Dr. Analytis’s opinion that he can bend only rarely
and fails to account for Drs. Lorenz’s and Yalamanchili’s observations that he has
difficulty with forward flexion. (R. 22, Pl.’s Br. at 9-10.) With respect to his first
argument, the ALJ gave little weight to Dr. Analytis’s opinion regarding Harvey’s
bending ability, and for the reasons described above, his decision to discount that
opinion is well supported. As for the ALJ’s treatment of Harvey’s difficulty with
forward flexion, the ALJ rested her RFC decision partly on Dr. Lorenz’s opinion,

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noting that he recommended that Harvey not engage in repetitive bending. (A.R.
540.) The ALJ accommodated that recommendation by limiting Harvey to only
occasional bending. Moreover, the ALJ also relied in part on the RFC opinions
submitted by consulting physicians Drs. Vincent and Free. (Id. at 541.) Both of
those doctors reviewed Harvey’s medical file and concluded that he is capable of
occasional bending. (Id. at 476, 499.)
Harvey points to the Seventh Circuit’s decision in Golembiewski v. Barnhart,
322 F.3d 912 (7th Cir. 2003), to argue that the ALJ erred in finding him able to
bend occasionally despite his flexion difficulties, but that reliance is misplaced. In
Golembiewski, the Seventh Circuit reversed an ALJ’s decision in part because it
included no discussion of the claimant’s bending limitations despite conflicting
assessments from his doctors regarding his bending ability. Id. at 917. It was the
ALJ’s failure to resolve the potential conflict that the Seventh Circuit found to have
been an error, not any specific mismatch between the claimant’s flexion limits and
the assigned bending limitation. Id. Here the ALJ did not ignore any substantial
evidence or fail to resolve any evidentiary conflict. Instead, she acknowledged that
Harvey is most likely unable to perform repetitive bending and assigned a
limitation to occasional bending that matched the opinions of the state consulting
physicians, whose opinions she afforded “some weight.” (A.R. 540-41.)
Perhaps most importantly, in its response to Harvey’s brief, the government
points out that even if the ALJ erred in assessing Harvey’s bending ability, any
error was harmless because none of the three jobs she found Harvey could perform

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involve any amount of bending. As the government notes, the DOT descriptions for
Order Clerk, Telephone Quotation Clerk, and Addresser all state that stooping is
not an activity or condition associated with these jobs. See DOT §§ 209.567-014,
237.367-046 & 209.587-010, available at 1991 WL 671794, 1991 WL 672194 & 1991
WL 671797. In his reply brief, Harvey does not address this point. Because the
government has shown that none of the jobs on which the ALJ rested her decision
require any level of bending, this court agrees with its assertion that even if the
ALJ should have limited Harvey to less than occasional bending, any such error had
no impact on her findings at step four, and therefore was harmless. See Ketelboeter,
550 F.3d at 625-26.
C.

Credibility Assessment
Lastly, Harvey challenges the ALJ’s assessment of his credibility, arguing

that in finding him less than fully credible she erroneously relied on a perceived
mismatch between his subjective complaints and the objective evidence and
improperly overlooked the state consulting physicians’ credibility findings. (R. 22,
Pl.’s Br. at 12.) Harvey has his work cut out for him with this argument, because
the Seventh Circuit has made clear that an ALJ’s credibility determination is
entitled to “special deference” and should only be overturned if it is “patently
wrong.” See Schomas, 732 F.3d at 708; Jones v. Astrue, 623 F.3d 1155, 1160 (7th
Cir. 2010).

Although the court will scrutinize the credibility assessment to

determine whether it conveys any “fatal gaps or contradictions,” it will “give the
opinion a commonsensical reading rather than nitpicking at it.” Castile v. Astrue,

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617 F.3d 923, 929 (7th Cir. 2010) (quotation and citation omitted). The court has
greater freedom to review the credibility decision when it is based on objective
factors rather than subjective ones, like the claimant’s demeanor. Schomas, 732
F.3d at 708. This high bar to overturning an ALJ’s credibility assessment is based
on the recognition that an ALJ is best-positioned to determine the claimant’s
truthfulness. Shideler, 688 F.3d at 310-11.
Harvey’s challenges to the ALJ’s credibility assessment amount to pleas for
this court to review the evidence de novo, but that is not this court’s role. See Elder
v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008). For example, Harvey highlights the
ALJ’s statement that his symptoms were not supported by objective findings and
picks various test results and recommendations to argue that his symptoms were
supported by the objective evidence. Specifically, he highlights as objective support
for his testimony Dr. Yalamanchili’s observations regarding his difficulty getting on
and off the exam table and hopping on one foot, as well as Dr. Kuo’s
recommendation that he pursue a spinal stimulator. (R. 22, Pl.’s Br. at 12.) But the
ALJ explained why she considered Harvey’s complaints to be out of proportion to
the medical evidence.

For example, she highlighted, among other things, CT

myelogram results that showed Harvey’s fusion was “very solid,” Dr. Kuo’s inability
to locate an objective basis for his described pain level, and the lack of any testing to
confirm Harvey’s complaints of his hip occasionally “popping out.” (A.R. 539.) To
the extent Harvey faults the ALJ for overlooking Dr. Vincent’s notation that his
pain symptoms were “consistent with the objective medical evidence,” (R. 22, Pl.’s

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Br. at 12 (quoting A.R. 479)), Dr. Vincent also noted that he found Harvey’s
statements only “partially credible based on objective medical evidence,” (A.R. 481),
which is consistent with the ALJ’s findings. Harvey’s credibility argument boils
down to an attempt to have this court reinterpret the evidence to draw a different
conclusion regarding his credibility.

But even where reasonable minds could

disagree over what the evidence means, where the ALJ gives supported reasons for
the credibility determination this court must uphold it. See Shideler, 688 F.3d at
310-11; Jones, 623 F.3d at 1163 (declining claimant’s invitation to “reweigh the
evidence and arrive at a different conclusion”). Accordingly, the arguments Harvey
raises here are insufficient to show that a remand for reassessment of his credibility
is required.
Importantly, even if Harvey had successfully challenged the ALJ’s reasoning
with respect to the perceived discrepancy between Harvey’s testimony and the
objective evidence, the Seventh Circuit has made clear that not all of the ALJ’s
credibility reasoning needs to be correct, as long as enough of it is. See Simila v.
Astrue, 573 F.3d 503, 517 (7th Cir. 2009) (noting that ALJ’s credibility
determination need not be “flawless”). Here the ALJ included a number of wellsupported reasons for her credibility analysis that Harvey has more or less ignored.
For example, on the subjective side, the ALJ first noted that Harvey reported at the
hearing that his pain level was at a nine or ten out of ten, yet he was able to answer
all of her questions without any notable distress or difficulty. (A.R. 539.) Although
the Seventh Circuit has been careful not to hold claimants to any kind of “sit and

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squirm” test, it has “repeatedly endorsed” the ALJ’s entitlement to rely on personal
observation to assess the validity of a claimant’s testimony. See Powers v. Apfel,
207 F.3d 431, 436 (7th Cir. 2000). That is especially true where the witness shows
no sign of discomfort, despite claiming to be under the hold of severe pain. Id. The
Seventh Circuit has also noted that an ALJ “will often have solid grounds for
disbelieving a clamant who testifies that [he] has continuous, agonizing pain.”
Johnson, 449 F.3d at 806. The ALJ was well within bounds to disbelieve Harvey’s
testimony that he was experiencing the maximum level of pain at the same time he
was answering her questions with no apparent distress.
On the objective side, Harvey overlooks the ALJ’s discussion of the required
regulatory factors in analyzing his credibility.

Those factors include his daily

activities, his medications and treatment, and any other measures he takes to
relieve his pain. See 20 C.F.R. § 404.1529(c).

For example, the ALJ explicitly

addressed his failure to pursue physical therapy during the relevant period. (A.R.
539-40.) An ALJ is entitled to view as an adverse credibility factor a claimant’s
failure to pursue treatment, as long as she explores the reasons behind that failure.
See SSR 96-7p, 1996 WL 374186, at *7 (July 2, 1996); Beardsley, 758 F.3d at 840.
Here, the ALJ considered the possibility that Harvey’s limited resources stood
between him and treatment, but noted that he did not pursue physical therapy even
while he was covered by workers compensation insurance. (A.R. 539.) The ALJ also
noted that Harvey testified that he smokes a pack of cigarettes a day, which to the
ALJ suggested “resources to purchase medication if it were a priority.” (Id. at 540.)

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Harvey objects to this reasoning and this court agrees that the ALJ is on shaky
ground to the extent she did not explore the relative costs of Harvey’s cigarette
habit and prescribed medication or take into account the addictive nature of
smoking. See, e.g., Eskew v. Astrue, 462 Fed. App’x 613, 616 (7th Cir. 2011). But
the ALJ also noted that when Harvey was reliably taking his medication, his
condition improved to the extent that his doctor released him to vocational training.
(A.R. 540.) She was entitled to weigh that factor against Harvey in assessing the
limiting extent of his pain.
The ALJ also properly took into account Harvey’s daily activities, noting that
his enrollment in a phlebotomy course suggests that he was more active than he
claimed at the hearing. The ALJ noted that the training course was equivalent to
light work, and observed that Harvey’s main difficulty with completing the course
was its bending component. (Id.) The ALJ thought that if Harvey were truly as
limited as his testimony suggested he would have described either to his doctor or to
the ALJ other aspects of the course that he was unable to keep up with. (Id.)
Because Harvey has not challenged this aspect of the ALJ’s decision, and because
this and the rest of the reasons the ALJ gave for her assessment of Harvey’s
credibility are well supported, Harvey has not shown that the credibility
determination is patently wrong. Accordingly, this court finds no basis for remand
with respect to the ALJ’s credibility assessment. See Schomas, 732 F.3d at 708;
(“We give special deference to an ALJ’s credibility determination and will not
overturn it unless it is patently wrong.”).

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Conclusion
Although there can be no doubt from the record that Harvey experiences back
pain that negatively impacts his life, reasonable minds could disagree over whether
that pain renders him totally disabled. It is the ALJ’s task to determine whether it
does, and this court’s role is simply to ensure that her determination is free of legal
error, adequately explained, and well-supported. For the reasons set forth above,
the court finds that it is. Accordingly, Harvey’s motion for summary judgment is
denied, the Commissioner’s is granted, and the Commissioner’s final decision is
affirmed.
ENTER:

____________________________________
Young B. Kim
United States Magistrate Judge

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