Stiles v. Colvin

Filing 15

MEMORANDUM Opinion and Order Signed by the Honorable Young B. Kim on 5/23/2016. (ma,)

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

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No. 14 CV 5861
Magistrate Judge Young B. Kim

May 23, 2016

MEMORANDUM OPINION and ORDER
Leon Stiles filed an application for Social Security Disability Insurance
Benefits (“DIB”) alleging that he is disabled because of depression and arthritis.
After the Appeals Council declined to review the administrative law judge’s (“ALJ”)
most recent decision denying benefits to Stiles, he filed this suit 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, Stiles’s motion is denied, the

government’s motion is granted, and the Commissioner’s decision is affirmed:
Procedural History
Stiles applied for DIB on December 17, 2008, claiming a disability onset date
of December 12, 2008. (Administrative Record (“A.R.”) 344.) His claim was denied
initially in March 2009, and on reconsideration in August 2009. (Id. at 146-47.)
After an ALJ issued an unfavorable decision on January 27, 2011, (id. at 148-63),
the Appeals Council remanded the case for further proceedings, (id. at 164-66). On

remand, the same ALJ held a second hearing on February 21, 2013, (id. at 105-45),
and again issued a decision denying benefits on April 9, 2013, (id. at 16-40). When
the Appeals Council denied review, the ALJ’s decision became the final decision of
the Commissioner. (Id. at 1-6); Schomas v. Colvin, 732 F.3d 702, 707 (7th Cir.
2013). Stiles filed this action seeking judicial review, (R. 1); 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
Stiles, who was 58 years old at the time of the second hearing, worked as a
practicing attorney for two decades. But in the years leading up to his application
for DIB, he suffered setbacks in his professional and personal life that caused him
to become increasingly depressed. After he left the practice of law, Stiles worked
part-time as a desk clerk, diversity officer, telemarketer, human resources
assistant, and more recently, as a shipping and receiving clerk.

At his

supplemental hearing, he presented both documentary and testimonial evidence in
support of his claim that his depression and arthritis prevent him from returning to
full-time work.
A.

Medical Evidence
On December 12, 2008, Stiles walked in front of a moving bus after losing his

job for the third time since 2007. (A.R. 501.) Fortunately a bystander pulled him
out of the way, and Stiles immediately went to the University of Chicago Medical
Center to seek help. (Id.) He reported to the physicians there that he had been
depressed since 2006 when his relationship with his fiancée ended, he lost his home

2

to foreclosure, and he was laid off.

(See id.)

Stiles was diagnosed with major

depressive disorder with psychosis upon admission and assigned a global
assessment of functioning (“GAF”) score of 15, indicating that he was in danger of
hurting himself or others. 1 (See id. at 506); American Psychiatric Association,
Diagnostic and Statistical Manual of Mental Disorders, Text Revision 34 (4th ed.
2000) (“DSM-IV-TR”). He was transferred to the University of Illinois at Chicago
Medical Center (“UIC”) where he received inpatient treatment for three days.
(A.R. 552.) Upon discharge he had a GAF score of 452 but he exhibited improved
mood, normal speech, good judgment and insight, and fair concentration. (Id. at
552-56.)
In the weeks following Stiles’s hospitalization, he began seeing a social
worker at UIC for weekly therapy sessions. (See id. at 586-89.) He also started
seeing Dr. Eric Gausche, a psychiatrist at UIC, once or twice a month for medical
management. (See id. at 590-92.) From December 2008 through early 2009, Stiles’s
treatment records show improvement in his mood and motivation. Dr. Gausche
wrote in January and February 2009 that Stiles was feeling better and that his
depression medications had been “very helpful.” (Id. at 578.) Dr. Gausche assigned
Stiles a GAF score of 60, indicating moderate symptoms, and noted significant
Although the American Psychiatric Association discontinued the use of the GAF
metric in 2013, see Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of
Mental Disorders 16 (5th ed. 2013), the GAF score was still in use at the time of
Stiles’s psychiatric evaluations noted in this record, see Gully v. Colvin, 593 Fed.
Appx. 558, 561 n.2 (7th Cir. 2014).
1

A GAF between 41 and 50 indicates “Serious symptoms (e.g., suicidal ideation,
severe obsessional rituals, frequent shoplifting) OR any serious impairment in
social, occupational, or school functioning (e.g., no friends, unable to keep a job).”

2

3

improvements in energy level, anxiety, and motivation. (Id. at 578, 580, 617); DSMIV-TR. Stiles rated his depression as a 4.5 or 5 out of 10, with 10 being suicidal.
(A.R. 578, 614, 617.)
In February 2009, Dr. Jeffrey Karr performed a consultative mental
evaluation of Stiles and diagnosed him with major depressive disorder in partial
remission. (Id. at 625.) Dr. Karr assigned him a GAF score of 65, representing mild
symptoms, and noted that Stiles presented as dysphoric and somewhat anxious.
(See id.); DSM-IV-TR. The following month Dr. Tyrone Hollerauer completed a
psychiatric review and concluded that Stiles’s major depression is not a severe
impairment.

(A.R. 629.)

Dr. Hollerauer opined that Stiles has only mild

restrictions in activities of daily living, social functioning, and concentration,
persistence, or pace, with no episodes of decompensation of extended duration. (Id.
at 639.) In July 2009, Dr. Howard Tin affirmed Dr. Hollerauer’s opinion, noting
that Stiles’s allegations are only “partially credible” because Stiles reported that he
searches the internet for two to three hours at a time but also says he can only
concentrate for a half hour. (Id. at 654.)
Meanwhile, Stiles continued to see his psychiatrist and therapist at UIC on a
weekly or bi-weekly basis from March 2009 through January 2011, and during that
period he consistently rated his depression as being around a 5 out of 10. (See, e.g.,
id. at 603-609, 673, 722, 834-44, 906-42.) In May 2009, Stiles reported walking
three to four miles three times a week. (See id. at 603.) His psychiatrist generally
noted that Stiles was stable and doing well, and throughout his treatment Stiles

4

denied side effects from his medication. (See, e.g., 836-38, 1005-07.) Although his
mood often worsened when he faced external work and financial stressors, (id. at
787-97, 834-44), Stiles continued to make progress in his therapy sessions, (see, e.g.,
id. at 661-64, 708-710). His therapist, Christina James, described him as depressed,
but with normal speech and cognitive functioning, congruent affect, organized and
normal thought process and content, and normal insight and judgment. (See, e.g.,
id. at 665, 763-64, 1110.) She wrote a letter in October 2010 noting that Stiles
complained of a depressed mood most days, anhedonia, sleep and concentration
difficulties, and feelings of guilt. (Id. at 718.) James also wrote that during her
treatment of Stiles, “he has reported concerns that his depression and concentration
difficulties would impede his ability to maintain a full-time job.” (Id.)
Stiles’s regular therapy sessions tapered off in early 2011 when James took a
position elsewhere and a grant funding his treatment ended. (See id. at 1110, 1147,
1229.) Dr. Sharad Garbharran, a psychiatrist at UIC who took over Stiles’s medical
management for Dr. Gausche, reported in March 2011 that Stiles’s mood was
“pretty good” and that he showed normal speech, cognitive functioning, affect,
thought process and content, social interactions, insight, and judgment.

(Id. at

1147.) Dr. Garbharran noted in June 2011 that Stiles had trouble making regular
therapy visits after March 2011, but that he had “significantly improved,” was
“currently stable and doing well,” and “endorsed generally good mood, sleep and
appetite throughout [the] course of treatment.” (Id. at 1229.)

5

As for Stiles’s physical impairments, Dr. M.S. Patil conducted an internal
medicine consultative examination in July 2009 and noted that Stiles complained of
mild to moderate pain in his knees and left elbow, rating his pain as an 8 out of 10.
(Id. at 643.) Stiles reported that he has moderate difficulty walking or standing for
more than 15 to 20 minutes. (Id.) Dr. Patil noted that during the examination
Stiles’s gait was normal, but he had difficulty with walking on heels and toes,
getting on and off the exam table, and squatting and arising. (Id. at 645.) An x-ray
of his right knee revealed mild medial joint space narrowing without evidence of
osteophyte formation or subchondral sclerosis, and no evidence of joint effusion.
(Id.) In a July 2009 opinion, state agency consultant Dr. David Bitzer concurred
with Dr. Patil and concluded that Stiles’s allegations are only “partially credible”
because although he reported difficulty bending and “completing all physical
activities[,]” “[o]bjective evidence shows mild abnormalities which should cause no
more than minimal limitations.” (Id. at 657.)
Stiles received treatment at Mile Square Health Center for hypertension
starting in May 2011. (Id. at 1242.) The record shows that he made only occasional
visits every several months to Mile Square for medication refills. (See, e.g., 1238,
1235, 1249.) During a December 2011 visit, Stiles reported that he had “weaned
himself off depression medications” after his free therapy program at UIC ended.
(Id. at 1239.) In August 2012 he told a nurse at Mile Square that heavy lifting at
his job caused him to have back pain. (Id. at 1235.)

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B.

Stiles’s Hearing Testimony
At his second hearing before an ALJ in February 2013, Stiles testified about

his work history.

(See A.R. 105-45.)

He referenced his testimony in the first

hearing, during which he said that he worked as an attorney after graduating from
law school in 1984. (Id. at 84-85.) With the exception of two years when he did nonlegal work, Stiles practiced law from 1984 through 2007. (Id. at 85.) After he was
laid off from a state’s attorney’s office position in March 2007, (id. at 86), he worked
a variety of part-time jobs until he was hired full-time by the Chicago Transit
Authority in August 2008, (id. at 61, 70-71). However, he was fired on December
12, 2008─the date identified as the alleged disability onset date─for purportedly
spending too much time on social networks during work hours, not meeting workproduct standards, and having too many unjustified absences. (Id. at 70-71.) Stiles
next worked part-time as a human resources assistant in May 2009. (Id. at 67, 10910.) He held that position until January 2012, when he transitioned into a parttime shipping and receiving role with the same employer. (Id. at 110-11.) Stiles
was still employed in that job at the time of the second hearing, and he testified
that he works about 20 hours per week. (Id. at 111-12.) He explained that he
handles incoming and outgoing shipments of books and other library materials,
which requires him to lift and carry boxes weighing up to 50 pounds. (Id. at 113,
115.)
In reference to his mental impairments, Stiles testified that his depression
had worsened over the past year and that sometimes he is so depressed that he does

7

not go to work. (Id. at 115-16.) He said that he misses about one day a week. (Id.
at 116.) He further stated that he is “still totally depressed” and “never happy,” (id.
at 122), and that he has “a minor case of obsessive compulsion” which leads him to
“work [him]self to death every day,” (id. at 123). He explained that his depression
makes it difficult to interact with his superiors and coworkers, and that he has
problems with anger. (Id. at 124-25.) At his first hearing, Stiles testified that his
inability to concentrate interfered with his ability to complete tasks as a human
resources assistant. (Id. at 81.) But during the second hearing, he denied having
concentration or focus issues in his position as a shipping and receiving processor.
(Id. at 128-29.) Stiles testified that he takes medication for his depression and that
he received weekly counseling from December 2008 through June 2011. (Id. at 12021.)
As for his physical impairments, Stiles testified that he suffers from arthritis
in his knees and that his legs “buckle for no reason at all.” (Id. at 76, 127.) He said
that he has not received treatment for his arthritis because he lacks insurance, but
that he takes ibuprofen every other day. (Id. at 77, 129.) He further testified that
he “can’t do physical labor anymore” and cannot stoop or bend. (Id. at 80.) He
explained that both of his knees “have gotten worse” since his right knee was xrayed in July 2009 and that he also suffers from back pain. (Id. at 128-29.)
Stiles offered testimony about his activities of daily living, stating that he
used to enjoy going out to dinner, dancing, writing, reading, and playing basketball.
(Id. at 127.) He said that he can no longer engage in these activities because of knee

8

problems, lack of interest, low energy, and concentration issues. (Id. at 127-28.)
Stiles testified that after he gets home from work, he might “watch the news maybe
a little bit” before “pass[ing] out.” (Id. at 125.) He also said that he spends at least
three hours a week sending out resumes. (Id. at 118-19.)
C.

Vocational Expert’s Testimony
A vocational expert (“VE”) testified at the hearing and provided her opinion

with respect to the kinds of jobs a person with certain hypothetical limitations could
perform. (A.R. 138-43.) The VE first explained that Stiles’s various past jobs fell
into the categories of skilled and semi-skilled work ranging from sedentary to
medium exertion levels. (Id. at 138-39.) Then the ALJ asked the VE to consider a
hypothetical person of Stiles’s age and past work history who could lift and carry 50
pounds occasionally and 25 pounds frequently, could stand and walk about six
hours in an eight-hour workday and sit about six hours with normal rest periods,
and who should avoid high stress jobs. (Id. at 139.) The VE testified that such an
individual would not be able to perform Stiles’s past work as an attorney or
diversity officer, but the person would be able to work as a desk clerk and a
shipping clerk. (Id. at 139-40.) The VE explained that the desk clerk and shipping
clerk jobs are not considered high stress because they do not have high productivity
requirements and do not involve complex issues or a high level of responsibility.
(Id. at 140.) She further opined that those jobs only allow for a maximum of 10
percent off-task time. (Id. at 140-41.) When the ALJ noted that Stiles’s current
employer seems to tolerate absences beyond one day a month, the VE responded

9

that Stiles’s employer had been “highly tolerant” and that normally, he would not be
able to sustain his employment with that level of absenteeism. (Id.)
Stiles’s attorney also questioned the VE, asking whether any jobs would be
available for a person fitting the ALJ’s hypothetical description with the additional
limitations of no contact with the general public and minimal contact with
coworkers and supervisors. (Id.) The VE testified that such an individual would be
unable to work as a desk clerk or shipping clerk. (Id. at 142.) Stiles’s attorney then
asked about an individual with the same restrictions as his previous hypothetical,
but with the additional limitation of being off task for 20 percent of the time. (Id.)
The VE responded that such a person “would not sustain productivity.”

(Id.)

Finally, Stiles’s attorney asked whether an individual could still work as a shipping
and receiving clerk if he was unable to lift and carry 50 pounds occasionally and 20
pounds frequently for any more than four hours a day. (Id. at 143.) The VE opined
that such an individual would be unable to work as a shipping and receiving clerk
on a full-time basis. (Id.)
D.

The ALJ’s Decision
On April 9, 2013, the ALJ issued a decision denying Stiles’s application for

DIB.

(A.R. 19-34.)

In applying the standard five-step sequence for assessing

disability, see 20 C.F.R. § 404.1520(a), at step one the ALJ determined that while
Stiles’s earnings through 2011 were below the substantial gainful activity
threshold, after January 2012 Stiles earned above that threshold.

(A.R. 22.)

Accordingly, the ALJ found that Stiles’s claim warranted partial denial for the

10

period after 2012. (Id.) At step two, the ALJ found that Stiles’s affective disorder
and osteoarthritis constitute severe impairments.

(Id.)

At step three the ALJ

determined that none of Stiles’s impairments meet or medically equal any listed
impairment. (Id. at 23.) Before turning to step four, the ALJ determined that Stiles
has the residual functional capacity (“RFC”) to lift and carry 50 pounds occasionally
and 25 pounds frequently, to be on his feet standing and walking about six hours in
an eight-hour workday and sit about six hours with normal rest periods, but that he
should avoid jobs deemed to be highly stressful. (Id. at 25.) At step four the ALJ
determined that Stiles’s RFC prevents him from performing his past relevant work,
but that there are other jobs that exist in significant numbers in the national
economy that Stiles can perform. (Id. at 32.) Accordingly, the ALJ concluded that
Stiles is not disabled and therefore not entitled to DIB. (Id. at 34.)
Analysis
Stiles asserts that the ALJ erred in his RFC assessment, credibility analysis,
and step-four determination. (See R. 11, Pl.’s Mem. at 7-15.) This court reviews the
ALJ’s decision only to ensure that it is supported by substantial evidence, defined as
“such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Stepp v. Colvin, 795 F.3d 711, 718 (7th Cir. 2015). At the same time,
the court will not “simply rubber-stamp the Commissioner’s decision without a
critical review of the evidence.” Minnick v. Colvin¸775 F.3d 929, 935 (7th Cir. 2015).
But the 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

11

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). In rendering a
disability determination, the ALJ is required to “build an accurate and logical
bridge between the evidence and the result to afford the claimant meaningful
judicial review of the administrative findings.” Beardsley v. Colvin, 758 F.3d 834,
837 (7th Cir. 2014).
A.

RFC Assessment
Stiles first contends that the ALJ inappropriately interpreted his part-time

work and earnings in 2012 and 2013 as indicating that he engaged in substantial
gainful activity during that time and was also capable of full-time work between
December 2008 and 2011. (R. 11, Pl.’s Mem. at 6-8, 15.) While it is wrong to equate
limited part-time work with the ability to perform full-time work, see Jelinek v.
Astrue, 662 F.3d 805, 812 (7th Cir. 2011), that is not what the ALJ did here.
Rather, the ALJ properly concluded that Stiles’s work activity after his alleged
onset date is “an indication of his ability to work” and one of among many factors
the ALJ considered in determining Stiles’s RFC. (See A.R. 22 (emphasis added).)
This is not a case where the ALJ failed to ask critical questions about Stiles’s actual
work hours or absentee rates. Cf. Jelinek, 662 F.3d at 812. Here, the ALJ heard
extensive testimony at both hearings regarding the nature of Stiles’s part-time
work. (A.R. 67, 109-15.) Furthermore, the ALJ was entitled to conclude based on
Stiles’s earnings in 2012 and 2013 that he engaged in substantial gainful activity
during that time. According to 20 C.F.R. § 404.1574(a)(1), if a claimant worked for

12

substantial earnings, the Commissioner will generally find that he is able to engage
in substantial gainful activity.

The court therefore finds no error in the ALJ’s

consideration of Stiles’s work activity in determining his RFC.
Stiles also argues that the ALJ ignored evidence supporting the severity of
his alleged depression symptoms, erroneously relying on the opinions of state
agency physicians who never examined him. (R. 11, Pl.’s Mem. at 8-9.) He contends
that the ALJ “cherry-picked evidence” to support his conclusion of non-disability
and that the medical records “describe a severely limited individual who was unable
to maintain any kind of full-time competitive work on a sustained basis.” (Id. at 8.)
But Stiles mischaracterizes the record and overlooks the ALJ’s thorough discussion
of his treatment history. First, Stiles cites to a letter written by his therapist and
asserts that she “concluded that plaintiff’s depression and concentration problems
would impede his ability to maintain a full-time job.” (Id.) However, the letter
states that “[Stiles] has reported concerns that his depression and concentration
difficulties would impede his ability to maintain a full-time job.”

(A.R. 718

(emphasis added).) Setting aside the fact that the letter was written by a social
worker who is not an “acceptable medical source” for purposes of proving an
impairment, see 20 C.F.R. § 404.1513(a), Stiles’s therapist did not opine that he is
severely limited, (see A.R. 718). Second, the ALJ did address Stiles’s voluminous
treatment records, noting that after his hospitalization in 2008, Stiles showed
improvement with treatment and medication. (Id. at 28.) The ALJ pointed out that
Stiles often rated his depression as a 5 out of 10 and frequently reported doing

13

“better.” (Id.) He noted that Stiles said his medications were helping and that his
GAF scores generally stayed in the 55 to 60 range (indicating moderate symptoms)
throughout his treatment. (Id. at 28-29); DSM-IV-TR. The ALJ also highlighted
the fact that mental status examinations consistently showed that Stiles exhibited
normal behavior, motor activity, speech, awareness, cognitive functioning, thought
process and content, social interactions, insight, and judgment.

(See id. at 30.)

Accordingly, the ALJ did not commit reversible error in considering the evidence
before him and finding that Stiles is not disabled.
Nor did the ALJ err in relying on state agency opinions. Stiles argues that
the ALJ “discounted countervailing evidence from treating specialists who
established more severe functional limitations” in favor of non-examining doctors
who did not take into account all of the medical evidence. (R. 11, Pl.’s Mem. at 9.)
Yet it is unclear what “countervailing evidence” Stiles is referring to because he
provides no citation in support of his assertion, and his treatment records are not
inconsistent

with

the

consulting

psychologists’

opinions.

For

example,

Dr. Hollerauer and Dr. Tin opined that Stiles’s major depression does not constitute
a severe impairment and that he only has mild difficulties with daily activities,
social functioning, and concentration, persistence, or pace. (See A.R. 629-42, 65254.) As noted above, Stiles’s treatment records indicate that after December 2008,
he demonstrated largely normal speech and cognitive functioning, congruent affect,
organized and normal thought process and content, and normal insight and
judgment. (See, e.g., id. at 665, 763-64, 1110.) Moreover, Stiles does not explain

14

how taking into account additional treatment records post-dating the state agency
consultants’ review would have altered their findings.

Records from Stiles’s

therapist and psychiatrist from May 2009 through June 2011 consistently note
stability as well as improvement, normal mental status exams despite depressed
moods, and GAF scores generally consistent with only moderate symptoms. (See,
e.g., id. at 603, 662, 708-10, 836-38, 906-43, 1005-07, 1129, 1156, 1229.)
Stiles also argues that the ALJ illogically gave moderate weight to the state
consultants’ opinions while rejecting their conclusion that Stiles does not have a
severe mental impairment. (Id.) But the ALJ was entitled to afford weight to some
portions of the consultants’ opinions while also concluding in Stiles’s favor that his
depression constitutes a severe mental impairment in that it “more than minimally
limits” his mental capacity to perform one or more basic work activities. (Id. at 22);
see Ulloa v. Astrue, 611 F. Supp. 2d 796, 809-810 (N.D. Ill. 2009) (finding no error
where ALJ “accepted certain portions” of an expert’s opinion and rejected others).
Stiles further contends that the ALJ failed to develop the record and should
have granted his request for an additional psychological evaluation and an
orthopedic exam with x-ray testing. (R. 11, Pl.’s Mem. at 9-10, 11-12.) The court
disagrees. While an ALJ must summon a medical expert if one is necessary to
provide an informed basis for determining whether the claimant is disabled, Green
v. Apfel, 204 F.3d 780, 781 (7th Cir. 2000), Stiles has not shown that review by
other experts was necessary, see Dardon v. Colvin, No. 12 CV 50398, 2015 WL
1915606, at *4 (N.D. Ill. Apr. 27, 2015) (citing Richardson v. Astrue, No. 11 CV

15

1002, 2012 WL 4467566, at *8-9 (S.D. Ind. Sept. 26, 2012) (finding no error in ALJ’s
failure to call medical expert when no showing that ALJ disregarded evidence or
failed to explain reasoning)). Additional expert review would have been required if
no medical evidence existed to support Stiles’s RFC, see Martinez v. Colvin, No. 12
CV 50016, 2014 WL 1305067, at *14 (N.D. Ill. Mar. 28, 2014), but that was not the
case here. The Seventh Circuit “recognize[s] that, because it is always possible to
identify one more test or examination an ALJ might have sought, the ALJ’s
reasoned judgment of how much evidence to gather should generally be respected.”
Flener ex rel. Flener v. Barnhart, 361 F.3d 442, 448 (7th Cir. 2004). And as noted
above, multiple experts provided opinions regarding Stiles’s mental and physical
impairments which are supported by the record as a whole. See Filus v. Astrue, 694
F.3d 863, 867 (7th Cir. 2012) (noting that an ALJ is entitled to accept state
consulting physicians’ opinions where no contradictory medical opinion identified);
Scheck v. Barnhart, 357 F.3d 697, 702 (7th Cir. 2004) (observing that ALJ’s duty to
make complete record “can reasonably require only so much” because “no record is
‘complete’—one may always obtain another medical examination, [or] seek the
views of one more consultant” (quotation and citation omitted)). As such, the court
finds that additional evaluations and testing were unnecessary and that the ALJ’s
RFC assessment is sufficiently supported.
B.

Symptom Evaluation
The court next addresses Stiles’s argument that the ALJ improperly

discredited his symptom allegations based on what the ALJ found to be his “routine

16

and conservative treatment,” a lack of objective medical evidence, and his daily
activities.

(See R. 11, Pl.’s Mem. at 10-11.)

Before going further, the court

acknowledges the new Social Security Ruling that recently went into effect which
eliminated the term “credibility” from the ALJ’s review of a claimant’s symptoms.
See SSR 16-3p, 2016 WL 1119029, at *1 (March 28, 2016) (superseding SSR 96-7p).
But even under the new SSR, the ALJ is still required to test the consistency of the
claimant’s statements in evaluating the severity of her symptoms by weighing
familiar factors such as medical opinions, the claimant’s daily activities,
medications, and treatment attempts. Id. at *6-8.
Here, the ALJ did not err under either SSR 96-7p or SSR 16-3p. First, the
ALJ was entitled to discount Stiles’s symptom allegations because of his routine
and conservative treatment. The ALJ acknowledged Stiles’s explanation that his
routine treatment “is due to financial problems[.]” (A.R. 27.) However, the ALJ
went on to note that even when Stiles saw his doctor at Mile Square after he lost
insurance coverage, his reports were inconsistent with the severity of his alleged
symptoms. (Id.) Indeed, Stiles testified at the second hearing that he only takes
ibuprofen every other day for pain, even though he previously rated his pain as an 8
out of 10. (Id. at 129, 643.) As for “objective medical evidence,” the ALJ cited to an
x-ray which showed only mild narrowing of the joint space in his right knee. (Id. at
27, 643-46.) He also cited Dr. Patil’s consultative examination which revealed only
slight reductions in the range of motion in Stiles’s knees. (Id.) The ALJ further
noted Stiles’s testimony that he is “very depressed and feels that his body is falling

17

apart,” but as discussed at length above, state experts and even Stiles’s own
treatment providers did not observe symptoms from his depression or arthritis that
would prevent Stiles from working. (See id. at 26.)
Finally, the ALJ did not err in finding Stiles’s activities of daily living
inconsistent with his symptom allegations. The ALJ noted that Stiles lives with
and cares for his disabled brother, reported walking three to four miles multiple
times a week, and was able to work after his alleged onset date. (Id. at 27.) He
recognized that Stiles’s work has been part-time, but explained that his job is an
indication of his ability to work. (Id.) Furthermore, the ALJ relied on the opinion of
Dr. Tin, who found Stiles’s allegations to be only “partially credible” because Stiles
reported being able to search the internet for two to three hours, but also said he
could only concentrate for 30 minutes. (See id. at 652-54.) Dr. Bitzer also opined
that Stiles is “partially credible” because Stiles said he had difficulty bending and
“completing all physical activities,” but objective evidence showed only “mild
abnormalities which should cause no more than minimal limitations.” (Id. at 657.)
Because the ALJ had ample reasons to discredit Stiles’s allegations, the court finds
no reason to remand on the basis of the ALJ’s symptom analysis.
C.

Step-Four Analysis
Stiles contends that the ALJ’s hypothetical question to the VE at the second

hearing did not include all the limitations it should have. (See R. 11, Pl.’s Mem. at
13.)

However, the ALJ was only required to include limitations that he found

supported by the record, see Simila v. Astrue, 573 F.3d 503, 521 (7th Cir. 2009);

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Outlaw v. Astrue, 412 Fed. Appx. 894, 898 (7th Cir. 2011), and as the Commissioner
and this court have made clear, the ALJ was entitled to exclude the limitations
Stiles alleges from the RFC determination because they lack support. For example,
Stiles asserts in his brief that he can have only minimal contact with managers and
supervisors and no contact with the general public, and that his depression would
affect his ability to concentrate “more than 10% of the time.” (See R. 11, Pl.’s Mem.
at 13-14.) But he cites no records supporting those limitations, and no opinion in
the record indicates that he would be so limited.
Stiles also argues that the ALJ failed to take into account the level of his
absenteeism in finding that he can perform his past relevant work. (Id. at 14.) It
does appear that Stiles frequently misses work or shows up to work late. (See id.)
But while Stiles may have established that he is absent from work often, he has
failed to show that his physical or mental impairments caused him to be absent
from work.

Although he testified that he misses one day a week due to his

depression, (A.R. 115-16), the ALJ found his testimony regarding his symptoms to
be unsupported by the record, (id. at 26). Furthermore, none of the state agency
consultants or Stiles’s own treatment providers rendered any opinion about
required absences tied to his condition. Cf. Bouchard v. Barnhart, 38 Fed. Appx.
332, 336 (7th Cir. 2002) (affirming ALJ’s decision to discount treating physician’s
opinion that claimant “would require a minimum of two months of unexpected
absences per year,” because “no other doctor was of the same view”). Because Stiles
has not shown that his impairments caused his absenteeism, or that the ALJ

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mishandled the evidence regarding his RFC, he has not met his burden of showing
that a remand is necessary.
Conclusion
For the foregoing reasons, Stiles’s motion is denied, the government’s motion
is granted, and the Commissioner’s decision is affirmed.
ENTER:

____________________________________
Young B. Kim
United States Magistrate Judge

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