Weber v. Colvin

Filing 21

MEMORANDUM Opinion and Order Signed by the Honorable Young B. Kim on 10/11/2016. (ma,)

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

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No. 15 CV 1233
Magistrate Judge Young B. Kim

October 11, 2016

MEMORANDUM OPINION and ORDER
Ellen Weber applied for disability insurance benefits (“DIB”) alleging that
she is disabled by multiple sclerosis (“MS”). After the Commissioner of the Social
Security Administration (“SSA”) denied her application, Weber filed this suit
seeking judicial review. See 42 U.S.C. § 405(g). Before the court is Weber’s motion
for summary judgment. For the following reasons, the motion is denied and the
Commissioner’s final decision is affirmed:
Procedural History
Weber applied for DIB in August 2011, alleging a disability onset date of
June 1, 2011. (Administrative Record (“A.R.”) 111-13, 131-37.) After her claim was
denied initially and again upon reconsideration, (id. at 70-71), Weber requested and
was granted a hearing before an Administrative Law Judge (“ALJ”), which took
place on September 5, 2013, (id. at 33-69, 82-83). Weber was not represented by an
attorney at the hearing. (Id. at 35.) On September 13, 2013, the ALJ issued a

decision finding that Weber is not disabled and thus not entitled to DIB. (Id. at 1528.) When the Appeals Council declined review, (id. at 1-3), the ALJ’s decision
became the final decision of the Commissioner, see Schomas v. Colvin, 732 F.3d 702,
707 (7th Cir. 2013). Weber 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.7); see 28
U.S.C. § 636(c).
Background
Prior to her alleged onset date, Weber taught ice skating and worked in
retail.

Weber says that her MS causes her to have chronic pain, fatigue, and

numbness, which prevent her from working. She was 48 years old at the time of her
hearing before the ALJ, where she presented both documentary and testimonial
evidence in support of her DIB application.
A.

Medical Records
Weber saw neurologist Dr. Daniel Wynn twice a year from December 2005

through June 2012 for treatment of her relapsing-remitting MS. Dr. Wynn’s notes
from July 2006 through her alleged onset date in June 2011 generally record no
symptoms to suggest an MS relapse, although Weber once reported increased
fatigue and numbness in June 2009. (A.R. 219-22, 226-27, 229.) In June 2011,
Weber’s records show that she had been in Greece for eight days and reported no
new or different symptoms to indicate an MS relapse. (Id. at 218.)
In October 2011, Dr. Mahesh Shah conducted an internal medicine
consultative examination for the Bureau of Disability Determination Services

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(“DDS”). (Id. at 235.) Dr. Shah noted that Weber received Betaseron injections for
five years after first being diagnosed with MS around 2001, but when they became
less effective, she started taking Rebif instead and was “doing better” on Rebif. (Id.;
see also id. at 283.) Dr. Shah reported that Weber’s MS symptoms had stabilized,
although she still complained of numbness in her extremities and said she could not
ice skate, run, or go on long trips.

(Id. at 235.)

Upon examination, Dr. Shah

observed that Weber walked and moved around without much difficulty. (Id. at
236.) He further noted that Weber had full range of motion in all the joints of her
upper and lower extremities, a normal gait, normal fine and gross manipulations,
and normal handgrip and finger grasps.

(Id. at 237.)

Dr. Shah observed that

Weber’s deep tendon reflexes were exaggerated in the right upper extremity, and
that Weber had numbness in the right upper and lower extremities. (Id. at 238.)
However, her motor strength was 5/5 in both upper and lower extremities. (Id.)
According to Dr. Shah, Weber’s memory, behavior, and ability to relate during the
examination were all within normal limits. (Id.) He concluded that while Weber
has mild numbness in her right extremities and cannot perform strenuous
activities, she is fairly functional at home. (Id.)
Later in October 2011, state agency consultant Dr. James Hinchen reviewed
Weber’s medical file, including Dr. Shah’s report, and concluded that Weber’s MS is
non-severe and does not pose more than a minimal limitation in her ability to
engage in work-related activities. (Id. at 242.) Another state agency consultant,
Dr. Richard Bilinsky, affirmed Dr. Hinchen’s opinion in January 2012. (Id. at 280.)

3

At the request of Weber’s neurologist, psychologist Michael DiDomenico,
Psy.D. examined Weber and completed a comprehensive neuropsychological report
in January 2012. (Id. at 283-90.) He observed, among other things, that Weber
walked without assistance but exhibited slowed movement and thought processes.
(Id. at 284.)

He noted that she was goal oriented and had “adequate” task

persistence, motivation, and initiative, but was “quite fatigued by the end of the
assessment process.” (Id.) Dr. DiDomenico reported that Weber had difficulty with
non-verbal and speed-dependent tasks. (Id. at 286.)
As for attention and concentration, Dr. DiDomenico observed that Weber’s
mental control “was grossly within functional limits,” although she was easily
distracted and had problems with more difficult tasks. (Id.) He also noted that
Weber’s memory functions were compromised, suggesting “a decline from premorbid
levels.”

(Id.)

Her visual-spatial skills were “grossly functional” and she

demonstrated “adequate verbal comprehension and expression,” although she did
have difficulty finding certain words to complete her thoughts.

(Id. at 287.)

Dr. DiDomenico observed that Weber had symptoms of depression and might be
experiencing symptoms of anxiety. (Id. at 288.) He concluded that Weber “is a
viable candidate for long-term disability” and that she would have difficulty with
speed-dependent tasks, has deficits in attention, concentration, short-term memory
and language retrieval, and is prone to react under stress. (Id. at 288-89.)
In February 2012, Dr. Wynn noted that Dr. DiDomenico’s report confirmed
his impression that Weber is unable to work. (Id. at 296.) Dr. Wynn also referred

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to MRI findings not included in the record which “correlated” with Dr. DiDomenico’s
report. (Id.) During a June 2012 visit, Weber reported joint pain, back pain, cough,
numbness, weakness, shortness of breath, and visual loss. (Id. at 295.) Dr. Wynn
noted sensory, visual, and coordination abnormalities, but wrote that other
neurological markers were within normal limits. (Id.) He also noted “no new MS
symptoms.” (Id. at 293.) At Weber’s next visit in December 2012, she continued to
report joint pain, cough, numbness, weakness, and shortness of breath, and
Dr. Wynn noted visual, sensory, coordination, and deep tendon reflex abnormalities,
but wrote that other neurological markers were within normal limits. (Id. at 292.)
He reported there were “zero changes” in Weber’s symptoms since her last visit, but
that she felt “run down.” (Id. at 291.) He remarked that she “did well” on a recent
trip to Mexico and was tolerating Rebif well. (Id.)
B.

Hearing Testimony
At her hearing before an ALJ on September 5, 2013, Weber appeared without

an attorney. (A.R. 35.) The ALJ referred to the hearing notice that was sent to
Weber informing her of her right to be represented by an attorney, and the ALJ
advised her that she might qualify for free legal assistance. (Id. at 35-36.) The ALJ
also told Weber that she could retain a private attorney on a contingency fee basis,
and that the lawyer would be paid up to 25 percent of any benefits awarded or
$6,000, whichever is less. (Id. at 36.) When asked whether she wanted more time
to get a representative or to proceed without representation, Weber said she wanted
to proceed. (Id.) The ALJ asked Weber whether she had reviewed the documents

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included in the electronic case file and whether she had any other documents to
add.

(Id. at 37.)

Weber mentioned that Dr. DiDomenico’s report was initially

excluded, but the ALJ confirmed that the report was now in the record. (Id. at 38.)
The ALJ noted that she would keep the record open after the hearing if Weber had
any additional documents to submit. (Id.)
Weber testified that she last worked in 2006 teaching ice skating, but that
she stopped working because numbness in her foot interfered with driving. (Id. at
40-41.) She also worked in a gift shop, but she said she was fired after taking a
leave of absence for an MS exacerbation. (Id. at 41-42.) Weber explained that at
any rate, she could not return to her work in the gift shop because it is not always
easy to get out of bed and because she might not be able to drive on any given day.
(See id. at 42.) She also said she would have trouble working full time because she
is unable to sit or stand for very long, and that hot days prevent her from walking.
(Id. at 43, 44.)
Weber further testified that she was never hospitalized for any MS
exacerbations since her alleged onset date and that Rebif has reduced the frequency
of her exacerbations.

(Id. at 45-46.)

She reported that side effects from her

medication are “not too bad.” (Id. at 50.) She said that she still experiences milder
exacerbations on hot days, during which she has increased numbness and fatigue,
worsened vision, and increased difficulty walking and doing household chores. (Id.
at 46-47, 49-50.) According to Weber, exacerbations occur whenever the weather is
hot, and that even in the winter she “might” go a month without an exacerbation.

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(Id. at 49.) She testified that during even mild exacerbations she would “go down
like a week at a time” during which she is unable to walk, cook, or clean the house.
(Id. at 47.) But she explained that air conditioning and a dehumidifier help relieve
her symptoms to some extent. (Id. at 49.) Weber also testified that even when she
is not experiencing an exacerbation, she has numbness in her hands, feet, right leg,
and sometimes her right hip. (Id. at 48.) She said she can only walk two to three
blocks, stand for 20 minutes, and sit for an hour at a time, but can lift 40 pound
bags of salt. (Id. at 51.)
As for daily activities, Weber testified that she drives once or twice a week,
usually to the drug store. (Id. at 40.) She lets her dogs out, “picks up the yard” if
necessary, waters her garden, does laundry, bathes and dresses herself, cooks some
meals, vacuums, showers the dogs, and pays bills. (Id. at 52-54.) She exercises in a
seated machine three times a week for about 30 minutes to an hour at a time. (Id.
at 53-54.)
The ALJ inquired about Weber’s recent trips to Greece, Mexico, and the
Caribbean. Weber said that she went to Greece for eight days around the time of
her alleged onset date with her husband. (Id. at 56.) She said that it was hot there
and she did some walking, but that they spent most of their time on a cruise ship.
(Id. at 56-57.) Then Weber testified that she and her husband went to Mexico in
December 2012 for three days, during which she avoided being out in the sun. (Id.
at 57.) In March 2013, Weber and her husband went on a cruise to the Caribbean

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for six days. (Id. at 58.) She said that they did very little walking around and
mostly stayed on the ship. (Id.)
Weber’s husband also testified at the hearing. He told the ALJ that Weber’s
ability to drive and “handle relatively simple things during the day” had
deteriorated in the last few years. (Id. at 60.) When asked whether he thought
Weber could be a ticket taker at a theater, he responded that she would have
trouble driving to that job. (Id. at 60-61.)
C.

Vocational Expert Testimony
The vocational expert (“VE”) testified at the hearing that Weber’s past

employment included work as a merchandise coordinator, ice skating instructor,
and part-time music teacher.

(A.R. 66.)

The ALJ asked the VE whether an

individual of Weber’s age and background who can sit for six to eight hours a day,
stand and walk at least six hours, frequently lift and carry up to 25 pounds,
occasionally lift and carry up to 50 pounds, and who is limited to simple and routine
jobs with routine changes only, would be able to perform Weber’s previous work.
(Id.) The VE responded that such a person would be unable to perform Weber’s
prior positions, but could work as an assembler, cleaner, or bagger. (Id. at 67.) The
ALJ then asked what jobs would be available for an individual restricted to light
work who could only occasionally stoop, crawl, climb, crouch, kneel, and balance.
(Id.) The VE responded that such a person could work as an assembler, inspector,
or cleaner. (Id. at 67-68.)

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D.

The ALJ’s Decision
The ALJ evaluated Weber’s claims under the required five-step evaluation

process for determining whether a claimant is disabled.
§ 404.1520(a).

See 20 C.F.R.

As an initial matter, the ALJ determined that Weber met the

insured status requirements of the Social Security Act through September 30, 2012.
(A.R. 20.) At step one the ALJ found that Weber did not engage in substantial
gainful activity during the period from her alleged onset date through her date last
insured. (Id.) At step two the ALJ found that Weber had the severe impairments of
MS and cognitive disorder. (Id.) At step three the ALJ determined that Weber did
not have an impairment or a combination of impairments that meet or medically
equal a listed impairment. (Id. at 21-22.) Before step four, the ALJ determined
that Weber had the residual functional capacity (“RFC”) to perform light work
except that she can only occasionally stoop, kneel, crouch, crawl, and balance, and
she is limited to simple, routine tasks involving only routine changes. (Id. at 22.)
At step four, the ALJ determined that Weber would be unable to perform any past
relevant work. (Id.) But at step five, the ALJ found that Weber could perform jobs
existing in significant numbers in the national economy, such as assembler,
inspector, or a maid/housekeeper. (Id. at 28.) Accordingly, the ALJ concluded that
Weber is not disabled. (Id.)
Analysis
Weber raises several challenges to the ALJ’s decision. First, she contends
that the ALJ did not obtain a valid waiver of counsel and failed to develop a full and

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fair record. (R. 12, Pl.’s Mem. at 7-11.) Second, Weber argues that the ALJ did not
give proper consideration to Dr. DiDomenico’s opinion. (Id. at 11-12.) Third, Weber
argues that the ALJ’s RFC assessment fails to account for all of her physical and
mental limitations. (Id. at 12-13.) Fourth, she contends that the RFC is premised
upon an improper adverse credibility determination. (Id. at 13-14.) Finally, Weber
contends that the hypotheticals the ALJ posed to the VE did not accurately reflect
the facts in the record. (Id. at 14.)
This court’s review of the ALJ’s decision is “extremely limited,” asking only
whether the decision is free of legal error and supported by substantial evidence,
meaning “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) (internal
quotations and citations omitted). Because the court’s role is neither to reweigh the
evidence nor to substitute its own judgment for the ALJ’s, if the ALJ’s decision is
adequately supported and explained it must be upheld even where “reasonable
minds can differ over whether the applicant is disabled.” Shideler v. Astrue, 688
F.3d 306, 310 (7th Cir. 2012). In order to adequately support the decision, the ALJ
must build “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)
(internal quotation omitted).
A.

Waiver of Counsel
Weber first argues that the ALJ did not properly obtain a waiver of counsel

and did not develop a full and fair record. (R. 12, Pl.’s Mem. at 7.) It is well

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established that in disability hearings, a claimant has a statutory right to counsel.
Binion v. Shalala, 13 F.3d 243, 245 (7th Cir. 1994) (citing 42 U.S.C. § 406 and 20
C.F.R. § 404.1700). If properly informed of the right, a claimant may waive her
right to counsel. See id. (citing Thompson v. Sullivan, 933 F.2d 581, 584 (7th Cir.
1991)). To ensure a valid waiver of counsel, the Seventh Circuit requires that the
ALJ explain to the claimant of the following: (1) the manner in which an attorney
can aid in the proceedings; (2) the possibility of free counsel or a contingency
arrangement; and (3) the limitation on attorney fees to 25 percent of past due
benefits and required court approval of the fees. Thompson, 933 F.2d at 584. Here,
the ALJ apprised Weber of the possibility of free legal counsel or a contingency
arrangement and informed her of the limits placed on attorney fees. (A.R. 36.)
However, the ALJ did not orally explain how an attorney could assist her in her
case. The record does contain Weber’s written acknowledgement that she received a
notice prior to the hearing, which included a form explaining the benefits of counsel.
(Id. at 90, 107.)
The Seventh Circuit has not directly addressed whether a claimant’s receipt
of written materials setting forth the information required by Thompson can replace
an ALJ’s oral explanation. See Davila v. Colvin, No. 14 CV 2743, 2015 WL 3952868,
at *6 (N.D. Ill. June 29, 2015) (collecting cases); see also Wartak v. Colvin, No. 14
CV 401, 2016 WL 880945, at *4 (N.D. Ind. March 8, 2016). Some trial courts have
found that written notice is sufficient, see, e.g., Moore v. Astrue, 851 F. Supp. 2d
1131, 1141 (N.D. Ill. 2012); Tuggle v. Colvin, No. 15 CV 70, 2016 WL 1237369, at *2

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(S.D. Ind. March 30, 2016), while others have held that the claimant’s receipt of a
pre-hearing notice by itself does not relieve the ALJ of the obligation to properly
notify the claimant of the right to counsel at the hearing, see, e.g., McCaster v.
Colvin, No. 12 CV 4059, 2014 WL 2158967, at *7 (N.D. Ill. May 23, 2014); Dillard v.
Barnhart, No. 02 CV 6251, 2003 WL 22478775, at *2 (N.D. Ill. Oct. 31, 2003). It is
therefore unclear whether Weber’s acknowledged receipt of written notice
constituted a valid waiver of counsel.
However, the court need not decide in this case whether an ALJ can
discharge her obligation to obtain a valid waiver of counsel through pre-hearing
notices because a claimant is not entitled to a remand based on an invalid waiver
unless the ALJ failed to develop a full and fair record. See Binion, 13 F.3d at 245
(citation omitted).

When a claimant appears without counsel, the ALJ must

“scrupulously and conscientiously [] probe into, inquire of, and explore for all the
relevant facts.” Nelms v. Astrue, 553 F.3d 1093, 1098 (7th Cir. 2009) (citations and
internal quotations omitted).

Pro se litigants must furnish some medical evidence

to support their claim, and the ALJ is required to supplement the record as
necessary by asking detailed questions, ordering additional examinations, and
contacting treating physicians and medical sources to request additional records
and information.

Id. (citations omitted).

The court will generally uphold the

reasoned judgment of the Commissioner on how much evidence to gather, even
when the claimant lacks representation. See Luna v. Shalala, 22 F.3d 687, 692 (7th
Cir. 1994); Binion, 13 F.3d at 246. Accordingly, a significant, prejudicial omission is

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usually required before the court will find that the Commissioner failed to assist a
pro se claimant in developing the record fully and fairly. See Luna, 22 F.3d at 692;
Nelson, 131 F.3d at 1235. “Mere conjecture or speculation that additional evidence
might have been obtained in the case is insufficient to warrant a remand.” Binion,
13 F.3d at 246. Instead, a claimant must set forth specific, relevant facts—such as
medical evidence—that the ALJ did not consider. Nelson, 131 F.3d at 1235.
Here, Weber points out ways that an attorney could have clarified her
testimony or advocated on her behalf. (R. 12, Pl.’s Mem. at 9.) She also contends
that an attorney would have asked the ALJ to seek medical expert testimony and
would have ensured that “all relevant information made its way into the [r]ecord.”
(Id.)

Furthermore, Weber takes issue with the ALJ’s tone and manner of

questioning during the hearing, which she claims put her at a disadvantage because
she lacked counsel.

(Id. at 9-10.)

But these general assertions and vague

conjectures as to the additional evidence and advantages Weber might have gained
with counsel are insufficient to warrant remand, and Weber does not put forth any
specific, relevant facts or evidence that the ALJ failed to consider.
The ALJ obtained records from each of Weber’s treating physicians as well as
from DDS and state agency consultants, and she elicited detailed testimony from
Weber regarding her employment history, medical evidence, medication, symptoms,
limitations, and daily activities at the hearing. (See A.R. 37-59.) The ALJ also
heard testimony from Weber’s husband, and left the record open for any additional
documents Weber might want to submit after the hearing. (Id. at 37-38, 60-65); see

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Binion, 13 F.3d at 245 (finding ALJ fully and fairly developed the record in similar
circumstances). The court thus finds that the ALJ adequately developed the record
here, and remand is not necessary on that basis.
B.

Dr. DiDomenico’s Medical Opinion
Next, Weber argues that the ALJ did not give proper consideration to the

opinion of Dr. DiDomenico, an examining psychologist. (R. 12, Pl.’s Mem. at 11.)
“An ALJ can reject an examining physician’s opinion only for reasons supported by
substantial evidence in the record; a contradictory opinion of a non-examining
physician does not, by itself, suffice.” Gudgel v. Barnhart, 345 F.3d 467, 470 (7th
Cir. 2003). After providing a detailed summary of Dr. DiDomenico’s January 2012
evaluation findings, the ALJ concluded that she would give his opinion weight “only
to the extent it supports a conclusion that the claimant is limited to simple, routine
work, and is thereby precluded from performing her prior skilled work.” (A.R. 26.)
She also declined to give weight to Dr. DiDomenico’s opinion that Weber “appears to
be a viable candidate for long-term disability.” (Id.) The ALJ adequately supported
her reasoning here. She explained that the report makes “repeated reference to a
decline from premorbid levels of functioning” and that “subtests generally revealed
difficulties primarily with . . . more complex tasks.” (Id.) Indeed, Dr. DiDomenico
found that Weber had “adequate” or generally functional language skills, mental
control, visual-spatial skills, simple arithmetic abilities, common-sense reasoning,
social judgment, vocabulary, word usage, and verbal comprehension. (Id. at 28487.)

The ALJ also found that although Dr. DiDomenico noted sluggishness in

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Weber’s speech, none of her treating or consulting physicians made the same
observation and she “was able to interact appropriately at the hearing.” (Id. at 26.)
Finally, after giving proper consideration to Dr. DiDomenico’s detailed report, the
ALJ accurately pointed out that whether a claimant is “disabled” for DIB purposes
is an issue reserved for the Commissioner. (Id.); see 20 C.F.R. § 404.1527(d)(1); SSR
96-5p, 1996 WL 374183, at *2 (July 2, 1996); Dixon v. Massanari, 270 F.3d 1171,
1177 (7th Cir. 2001) (“[A] claimant is not entitled to disability benefits simply
because her physician states that she is ‘disabled’ or unable to work.”). Accordingly,
the court finds that the ALJ did not err in weighing Dr. DiDomenico’s opinion.
C.

RFC Assessment
Weber further contends that the ALJ did not properly consider her physical

and mental impairments in assessing her RFC.

(R. 12, Pl.’s Mem. at 12-14.)

Regarding her physical impairments, Weber argues that the ALJ’s assessment that
she can occasionally stoop, kneel, crouch, and crawl “seems to have been plucked
out of thin air.” (Id. at 12.) But the ALJ explained that she based that limitation on
Weber’s “reports of subjective weakness and fatigue[.]” (A.R. 26.) Even if the ALJ
erred by failing to provide a more detailed explanation, Weber points to no evidence
or testimony indicating that she has more postural limitations than the ALJ
assessed. See Schreiber v. Colvin, 519 Fed. Appx. 951, 962 (7th Cir. 2013). Indeed,
Weber demonstrated no problems with movement during her consultative
examination with Dr. Shah and had full range of motion in all joints. (A.R. 236-37.)

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As for her mental impairments, Weber argues that because she is
“significantly limited in her cognitive abilities,” she would be incapable of
performing even the “simple, routine, and repetitive tasks” included in her RFC
assessment. (R. 12, Pl.’s Mem. at 13.) In support of that contention, she points to
her

alleged

“difficulty

responding

to

questions

at

the

hearing”

and

to

Dr. DiDomenico’s report. (Id.) But as already discussed above, the ALJ gave proper
consideration to Dr. DiDomenico’s findings and adequately substantiated her
determination that his report did not preclude simple, routine, and repetitive tasks.
(See A.R. 26.) Regarding Weber’s hearing testimony, besides asserting that she was
“agitated” and accusing the ALJ of having an adversarial tone, Weber does not
specify what difficulties she had at the hearing that would support her alleged
inability to perform unskilled work. (See R. 12, Pl.’s Mem. at 8-10.) The hearing
transcript does not provide evidence of any obvious cognitive difficulties to
corroborate her claim. Furthermore, the ALJ observed that Weber “was able to
interact appropriately at the hearing,” (see A.R. 26), and the court affords the ALJ’s
subjective assessment substantial deference because it is based on the kind of
intangible elements that only the ALJ is in a position to observe, see Butera v. Apfel,
173 F.3d 1049, 1055 (7th Cir. 1999); see also Diaz v. Chater, 55 F.3d 300, 308 (7th
Cir. 1995).
Weber makes passing reference to the fact that the ALJ found her to be
moderately limited in concentration, persistence, and pace at step three of her
analysis, which Weber says the ALJ did not properly consider in her RFC

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assessment. (R. 12, Pl.’s Mem. at 13.) As an initial matter, Weber fails to develop
her argument on this point. See Estate of Moreland v. Dieter, 395 F.3d 747, 759 (7th
Cir. 2005) (“Perfunctory or undeveloped arguments are waived.”). Furthermore, the
ALJ explained that she found Weber moderately limited in concentration,
persistence, and pace because the record shows she has “some difficulties with
respect to complex concepts and tasks,” but that she still has generally “intact
functioning with respect to simple tasks[.]” (A.R. 21.) While restricting a claimant
to simple, routine tasks often does not adequately capture limitations in
concentration, persistence, and pace, see Varga v. Colvin, 794 F.3d 809, 814 (7th
Cir. 2015) (citing Yurt v. Colvin, 758 F.3d 850, 858-59 (7th Cir. 2014)), here the ALJ
built a logical bridge between her finding that Weber is moderately limited and the
accommodation of unskilled work.

The ALJ explicitly linked Weber’s moderate

limitations in concentration, persistence, and pace to her difficulties with complex
tasks described in Dr. DiDomenico’s report.

(See A.R. 21.)

In the category of

attention and concentration, Dr. DiDomenico noted that Weber’s mental control
“was grossly within functional limits” and that her task persistence was “adequate,”
but that she struggled with sustained attention as tasks became more difficult. (Id.
at 284, 286.)

He observed deficits on tasks that “load heavily upon attention,

concentration, short term memory and certain aspects of language,” (id. at 289
(emphasis added)), but he also reported that Weber demonstrated at least
“adequate” or functional abilities in spontaneity, initiative, mental control, simple
arithmetic, verbal-spatial skills, language skills, common-sense reasoning, social

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judgment, vocabulary, word usage, and verbal comprehension and expression, (id.
at 284-87). These observations are not inconsistent with the ALJ’s conclusion that
Weber’s difficulties stem from the performance of complex tasks, and that limiting
Weber to simple, routine work adequately addresses those difficulties. See Capman
v. Colvin, 617 Fed. Appx. 575, 579 (7th Cir. 2015) (holding RFC preventing claimant
from working in proximity with others “adequately addressed [claimant’s]
deficiencies in concentration, persistence, and pace” because they “stem[med] from
[claimant’s] anxiety attacks” caused by proximity).

Finally, Weber points to no

evidence or testimony indicating that she is limited in concentration, persistence,
and pace beyond the level the ALJ assessed. See Schreiber, 519 Fed. Appx. at 962.
The court therefore finds no basis for remand in the ALJ’s RFC analysis.
D.

Credibility Assessment
Weber next argues that the ALJ rendered an erroneous credibility

determination1 that negatively impacted her RFC assessment. (R. 12, Pl.’s Mem. at
13-14.) The court disagrees. The ALJ found Weber’s testimony “not fully credible”
because the medical record does not support the limitations she alleges and because
the ALJ deemed Weber’s activities of daily living to be inconsistent with her
symptom allegations. (Id. at 25-26.) First, Weber testified at the hearing that she
The SSA recently issued an SSR updating its guidance about evaluating
symptoms in disability claims. See SSR 16-3p, 2016 WL 1119029 (effective March
28, 2016). The new SSR 16-3p supersedes SSR 96-7p, eliminating the term
“credibility” from the Administration’s sub-regulatory policies in favor of a focus on
symptom evaluation. Id. at *1. “The change in wording is meant to clarify that
administrative law judges aren’t in the business of impeaching claimants’
character,” but they “will continue to assess the credibility of pain assertions by
applicants.” Cole v. Colvin, 831 F.3d 411, 412 (7th Cir. 2016) (emphasis in original).
1

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suffers from exacerbations whenever the weather is hot and indicated that even in
the winter she “might” go only a month without an exacerbation. (Id. at 49.) She
also said that during even mild exacerbations she would “go down like a week at a
time” during which she could not walk, cook, or clean the house. (Id. at 47.) On the
other hand, Weber testified that if “things are just going along” and she is not
suffering from an exacerbation, she only sees her neurologist twice a year. (Id. at
45-46.) As the ALJ pointed out, despite her testimony indicating that she suffers
incapacitating exacerbations with some regularity, the record shows that
throughout her treatment history Weber still only saw her neurologist twice a year.
(See, e.g., id. at 218, 220, 291, 293, 296, 298.) And during those routine visits,
Weber generally reported no new or worsening symptoms from MS and no
difficulties or side effects with her medication. (See id.) The medical record thus
does not corroborate that Weber suffered from regular exacerbations. Furthermore,
Weber testified that she can only walk two to three blocks at a time and her
husband testified that she “limps a lot,” (id. at 51, 61), but as the ALJ noted, she
demonstrated full motor strength on examination and her examining physicians
reported that her gait was normal and she could walk without any assistance, (id.
at 23, 25-26). Accordingly, the ALJ was not patently wrong to conclude that the
medical record does not support Weber’s symptom allegations. See Berger v. Astrue,
516 F.3d 539, 546 (7th Cir. 2008) (credibility determination will only be overturned
if it is “patently wrong” or “divorced from the facts” in the record).

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Second, the ALJ did not err by being skeptical of Weber’s alleged symptoms
based on her activities, including her vacation travels to warm-climate countries.
Weber testified that heat triggers exacerbations of her MS symptoms even when she
is indoors with air conditioning, and that on hot days, she “can’t walk.” (Id. at 44,
49.) But as the ALJ noted, Weber testified that she spent eight days in Greece after
her alleged onset date in June 2011, and that she did some walking there even
though by her own account, the weather was hot. (Id. at 23, 25, 56-57.) She also
traveled to Mexico and the Caribbean after her alleged onset date. (Id. at 25.) The
ALJ acknowledged Weber’s testimony that she tried to stay out of the sun during
those trips, but the ALJ also pointed out that Weber’s “non-essential travel” to those
destinations “detracts somewhat from her claims of debilitating symptoms[.]” (Id.)
This is not a case where the record fails to demonstrate how a claimant’s vacation
travels were inconsistent with her alleged degree of physical limitation. Cf. Murphy
v. Colvin, 759 F.3d 811, 817 (7th Cir. 2014). Nor is this a case where evidence
shows Weber suffered from exacerbated symptoms during those trips, because as
the ALJ pointed out, her neurologist noted that she “did well” during her stay in
Mexico. (A.R. 25 (citing id. at 291).) In fact, Weber challenges the ALJ’s reliance on
her other activities, such as the fact that she can do household chores, but she does
not specifically address the ALJ’s reliance on her travel as a reason for doubting her
alleged limitations. (See R. 12, Pl.’s Mem. at 14.) And even if the ALJ erred by
finding Weber’s household activities inconsistent with her allegations of chronic
pain and fatigue, an ALJ’s credibility assessment need not be flawless, and not all of

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the ALJ’s reasons for discounting symptom allegations must be valid as long as
enough of them are. See, e.g. Simila v. Astrue, 573 F.3d 503, 517 (7th Cir. 2009);
Halsell v. Astrue, 357 Fed. Appx. 717, 722 (7th Cir. 2009). Here, the ALJ provided
enough valid reasons for finding Weber’s symptom allegations less than fully
credible.
E.

Hypotheticals
Finally, Weber argues that the hypotheticals posed to the VE did not

accurately reflect the extent of her limitations.

(R. 12, Pl.’s Mem. at 14.)

Specifically, she faults the ALJ for failing to include limitations based on her
testimony that she can only walk two or three blocks at a time, can stand for only
20 minutes if she can brace against something, and cannot sit for more than an
hour.

(Id.)

Ordinarily, a hypothetical question to the VE must include all

limitations supported by the medical evidence to ensure that the VE understands
the full extent of the limitations in matching the hypothetical RFC to available jobs.
See Steele v. Barnhart, 290 F.3d 936, 942 (7th Cir. 2002). But the ALJ is required to
incorporate into the hypotheticals only those impairments and limitations that she
accepts as credible. See Schmidt v. Astrue, 496 F.3d 833, 846 (7th Cir. 2007). Here,
the ALJ did not find Weber’s description of her walking, standing, and sitting
limitations credible, so she was not required to include them in the hypothetical
posed to the VE.

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Conclusion
For the foregoing reasons, Weber’s motion is denied and the Commissioner’s
final decision is affirmed.
ENTER:

____________________________________
Young B. Kim
United States Magistrate Judge

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