Colangelo v. Colvin

Filing 40

MEMORANDUM Opinion and Order. Signed by the Honorable Maria Valdez on 8/11/2017:Mailed notice(lp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
VICTOR L. COLANGELO,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of the U.S. Social
Security Administration, 1
Defendant.

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No. 15 C 6777

Magistrate Judge Maria Valdez

MEMORANDUM OPINION AND ORDER
This action was brought under 42 U.S.C. § 405(g) to review the final decision
of the Commissioner of the Social Security Administration (the “Commissioner”)
denying Plaintiff Victor L. Colangelo’s (“Plaintiff”) claim for Disability Insurance
Benefits (“DIB”). The parties have consented to the jurisdiction of the United States
Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons that follow,
Plaintiff’s motion for summary judgment [Doc. No. 28] is denied and the
Commissioner’s cross-motion for summary judgment [Doc. No. 36] is granted.
BACKGROUND
I.

Procedural History
Plaintiff filed an application for DIB on September 27, 2011, alleging a

disability onset date of July 7, 2009, due to post traumatic stress disorder (“PTSD”),
depression, stress disorder, anxiety, and carpal tunnel syndrome. (R. 131–32, 155.)
Nancy A. Berryhill is substituted for her predecessor, Carolyn W. Colvin, pursuant to
Federal Rule of Civil Procedure 25(d).
1

His application was denied initially on March 8, 2012, and again at the
reconsideration stage on June 21, 2012. (R. 68–69.) Plaintiff then requested a
hearing before an Administrative Law Judge (“ALJ”), which was held on October
21, 2013. (R. 30–67, 85.) Plaintiff appeared at the hearing with his attorney and
offered testimony. (R. 30–67.) A vocational expert (the “VE”) and two medical
experts also appeared and offered testimony. (Id.) On April 23, 2014, the ALJ issued
an unfavorable written decision. (R. 6–29.) The Appeals Council (“AC”) denied
review on June 25, 2015, leaving the ALJ’s decision as the final decision of the
Commissioner and, therefore, reviewable by the District Court under 42 U.S.C. §
405(g). See Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005); Herron v.
Shalala, 19 F.3d 329, 332 (7th Cir. 1994); (R. 1–4.)
II.

Factual Background 2
Plaintiff was born on October 2, 1953. (R. 131.) As of the date of his

application, he had graduated high school, served in the military, and attained age
fifty-seven. (R. 131–32, 156.) Between 1986 and 2009, he worked as a stocker, order
picker, night manager, maintenance technician, union laborer, and a hospital
construction installer. (R. 156.) He reported that he had not been employed since he
was fired from his installer position on July 7, 2009. (R. 155.)
A. Medical Evidence
Plaintiff’s medical evidence reveals several surgical histories which are not
available in his record, including bilateral carpal tunnel release surgery in 1986 and
bilateral knee arthroscopies in the 1990s. (R. 277.) His record likewise contains
2

The following facts from the parties’ briefs are undisputed unless otherwise noted.

2

references to several bodily traumas including left eye trauma in 1962, a stabbed
throat in 1971, loss of his right ear in 1984, and a dental extraction. (R. 277, 450.)
After ten years without medical treatment, Plaintiff presented to Dr. Jas
Brar, M.D., in June 2011 to establish care. (R. 458–62.) Dr. Brar’s review of
Plaintiff’s systems revealed several problems including obesity 3, PTSD, anxiety,
depression, and mood changes. (R. 459–60.) Dr. Brar started Plaintiff on
Wellbutrin for his depression; (R. 460) however, due to Plaintiff’s non-compliance
with his medication, (R. 579, 584) he was switched to Valium shortly thereafter. (R.
464.) By August 2011, Plaintiff had shown improvement on Valium, but Dr. Brar
still characterized him as depressed and noted he was positive for labile mood. 4 (R.
454–55.)
In August 2011, two months after Plaintiff established care with Dr. Brar, he
began concurrent treatment at DuPage County Health Department (“DCHD”) with
Dr. Jinger Hoop, M.D., Licensed Practioner of the Healing Arts, for anger
management therapy. (R. 287.) Dr. Hoop conducted several psychiatric evaluations
where she reviewed Plaintiff’s symptoms and problematic history before ultimately
diagnosing him with mood disorder. (R. 334–46.) As a result of his therapy and
medication, Plaintiff

demonstrated a significant decrease in his anger between

August 2011 and November 2011. (R. 311–15.)
On October 11, 2011, Plaintiff presented to Dr. James Stankiewicz, M.D., for
a nasal injury that had occurred during a fight over a month prior. (R. 277.)
On June 2, 2011, Plaintiff was 5’ 11” and his weight was recorded as 240 pounds. (R. 459.)
Alternatively stated, Plaintiff’s mood was unstable. Dorland’s Medical Dictionary,
http://www.dorlands.com (last visited Jul. 11, 2017).

3
4

3

Following the incident, Plaintiff had experienced sharp, radiating facial pain
accompanied by numbness and tingling. (Id.) Dr. Stankiewicz diagnosed Plaintiff
with a severe nasal fracture and deviated septum, which he treated with surgical
intervention, including a septoplasty and an open reduction nasal fracture. (R. 277–
282.)
Four months later, Plaintiff completed a Function Report issued by the Social
Security Administration where he described the activities he could still perform
despite his limitations. (R. 176–83.) In his report Plaintiff stated that he continued
to go to the store, clean, drive, and attend his son’s basketball games. (Id.)
Along with the foregoing evidence, Plaintiff’s record contains two Illinois
Requests for Medical Advice completed by several reviewing physician consultants
at the behest of the Disability Determination Services (“DDS”). At both the initial
and reconsideration level, the DDS consultants determined that Plaintiff’s record
contained insufficient information regarding his physical impairments to conduct a
review. (R. 347–49; 383–85.) Initially, it was determined that Plaintiff’s available
evidence did not support a persistent or debilitating mental impairment. (R. 351–
63.) However, upon second review, one DDS consultant opined that Plaintiff
exhibited a medically determinable mental impairment due to his mood disorder.
(R. 365–81.) As a result of Plaintiff’s mood disorder, as well as his history of
conflictual relationships, the consultant opined that Plaintiff would have a
“marked” limitation in social functioning and recommended limiting him to work

4

where there were limited demands for close supervision or contact with others. (R.
375–81.)
B. Plaintiff’s Testimony
Plaintiff testified that he tries his best to stay at home to avoid people and
conflicts because on several prior occasions he has gotten into public arguments and
fights. (R. 53–57.) Plaintiff additionally testified regarding the side effects of the
medications he was prescribed during the material period. He reported that he
experienced loss of memory as well as a loss of control over bodily functions. (R. 50.)
He has since changed medications. (R. 51.)
C. Expert Testimony
i. Dr. Slodki
Medical expert, Dr. Slodki, was present and testified at Plaintiff’s
administrative hearing. Dr. Slokdi opined that the combination of Plaintiff’s
impairments, including his nasal fracture with closed reduction, stab wound of the
neck, dental extraction, open reduction and nasal septoplasty for a deviated septum,
carpal tunnel, knee surgery, and obesity had a “more than limited” impact on his
ability to perform work-related activities, but due to the lack of documented
evidence regarding Plaintiff’s physical impairments, they resulted in no exertional
limitations during the material period at issue. (R. 35–36.)
ii. Dr. Ellen Rozenfeld
Medical expert, Dr. Ellen Rozenfeld, (the “ME” or “Dr. Rozenfeld”) was also
present and testified at Plaintiff’s administrative hearing. The ME opined that

5

Plaintiff had medically determinable mental impairments including, inter alia,
depressive disorder, PTSD, and mood disorder, which either singly or in
combination had more than a minimal effect on his ability to perform work-related
activities. 5 (R. 39–40.) She reported that his impairments resulted in only mild
limitations on his activities of daily living because he retained the ability to attend
his son’s basketball games, go out in public alone, shop, and drive. (R. 40–41.) In
contrast, she noted he had moderate limitations in social functioning due to his
irritability, problematic interactions, anger management, and avoidance behavior.
(Id.)
Additionally, Dr. Rozenfeld pointed out that Plaintiff’s records from DCHD
revealed improvement in his anger management between August 2011 and
November 2011. (R. 41.) She explained that he had only mild limitations in
concentration, persistence, or pace due to his demonstrated ability to concentrate
during his activities of daily living. (Id.) Dr. Rozenfeld then opined that Plaintiff
retained the ability to understand, remember and carry out simple and detailed
instructions, except he must avoid sustained general public contact, avoided joint
and shared tasks with co-workers, engage in occasional supervisory contact, and
manage only routine work setting changes. (R. 41–42.)
iii. Vocational Expert’s Testimony
Also present at Plaintiff’s administrative hearing was the VE, Brian Harmon.
The ALJ first asked the VE to identify Plaintiff’s past relevant work. (R. 64.) The
Dr. Brar’s treatment records reveal that Plaintiff reported smoking cigarettes and using marijuana.
(R. 462.) Dr. Rozenfeld identified “substance abuse” as one of Plaintiff’s medically determinable
impairments. (R. 40.)
5

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VE testified that Plaintiff had worked as a construction worker I, maintenance
repairer, and laborer. (R. 64–65.) The ALJ then asked the VE if Plaintiff could meet
the mental demands of any of his past relevant work based on the restrictions
articulated by the ME. (R. 65.) The VE explained that the ME’s limitations would
preclude employment for all three positions. (Id.) Next, the ALJ asked the VE to
opine whether there were other jobs available in the national economy that an
individual of Plaintiff’s same age, education, vocational training, and with the same
limitations provided by the ME, could perform. (Id.) The VE responded that such an
individual could perform work as a kitchen helper, hand packager, and laundry
worker. (R. 66.)
On cross-examination, Plaintiff, through his counsel, asked the VE whether
the jobs he had listed would remain available to an individual who engaged in loud,
obscene, and possibly physical altercations on the job once a month, to which the VE
responded negatively. (R. 66.) Plaintiff’s counsel then asked the VE if the
hypothetical individual would remain employable if he was off task more than
fifteen percent of the day, or absent from work more than one and a half days per
month. (R. 66–67.) The VE opined that such an individual would not be employable.
(R. 67.)
D. ALJ Decision
On April 23, 2014, the ALJ issued an unfavorable written determination
finding Plaintiff was not disabled between July 7, 2009, his alleged onset date, and
September 30, 2011, his date of last insured status. (R. 9–24.) At step one, the ALJ

7

determined that Plaintiff had not engaged in substantial gainful activity (“SGA”)
during the period relevant to his claim. (R. 12.) At step two, the ALJ found that
Plaintiff had a severe impairment in social functioning during his insured period.
(R. 15.) At step three, the ALJ determined that prior to September 30, 2011,
Plaintiff did not have an impairment or combination of impairments that met or
medically equaled the severity of one of the listed impairments. 20 C.F.R. Part 404,
Subpart P, App’x 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 416.920(d), 416.925 and
416.926). (R. 15–16.) 6
Before step four, the ALJ found that prior to September 30, 2011, Plaintiff
had the residual functional capacity (“RFC”) to perform a range of unskilled work,
except he could not understand and remember complex instructions, carry out
detailed or complex tasks or simple tasks requiring more than occasional changes in
routine, sustain interaction with the public, have more than occasional contact with
supervisors, or engage in teamwork with coworkers. (R. 16–22.) At step four, the
ALJ concluded that Plaintiff was not capable of performing his past relevant work.
(R. 22.) Finally, at step five, the ALJ found that prior to September 30, 2011, there
were jobs that existed in significant numbers in the national economy that Plaintiff
could have performed. (R. 23.) Specifically, the ALJ found that Plaintiff could have
worked as a kitchen helper, hand packager, and laundry worker. (Id.) Because of

In January 2017, the Social Security Administration published amendments to the regulations
regarding 20 C.F.R. Parts 404 and 416. Revisions to the Rules Regarding the Evaluation of Medical
Evidence, 82 Fed. Reg. 11, 5844–84 (Jan. 18, 2017), available at https://www.gpo.gov/fdsys/pkg/FR2017-01-18/pdf/2017-00455.pdf#page29. Because these amendments only apply to claims filed on or
after March 27, 2017, all references to the regulations and rulings in this opinion refer to the prior
version.

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this determination, the ALJ found that Plaintiff had not been disabled during the
material period at issue. (Id.)
DISCUSSION
I.

ALJ LEGAL STANDARD
Under the Act, a person is disabled if she has an “inability to engage in any

substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than twelve months.” 42
U.S.C. § 423(d)(1)(a). In order to determine whether a plaintiff is disabled, the ALJ
considers the following five questions in order: (1) Is the plaintiff presently
unemployed? (2) Does the plaintiff have a severe impairment? (3) Does the
impairment meet or medically equal one of a list of specific impairments
enumerated in the regulations? (4) Is the plaintiff unable to perform her former
occupation? and; (5) Is the plaintiff unable to perform any other work? 20 C.F.R. §
416.920(a)(4).
An affirmative answer at either step 3 or step 5 leads to a finding that the
plaintiff is disabled. Young v. Sec’y of Health & Human Servs., 957 F.2d 386, 389
(7th Cir. 1992). A negative answer at any step, other than at step 3, precludes a
finding of disability. Id. The plaintiff bears the burden of proof at steps 1–4. Id.
Once the plaintiff shows an inability to perform past work, the burden then shifts to
the Commissioner to show the plaintiff’s ability to engage in other work existing in
significant numbers in the national economy. Id.

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II.

JUDICIAL REVIEW
Section 405(g) provides in relevant part that “[t]he findings of the

Commissioner of Social Security as to any fact, if supported by substantial evidence,
shall be conclusive.” 42 U.S.C. § 405(g). Judicial review of the ALJ’s decision is
limited to determining whether the ALJ’s findings are supported by substantial
evidence or based upon legal error. Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir.
2000); Stevenson v. Chater, 105 F.3d 1151, 1153 (7th Cir. 1997). 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); Skinner v.
Astrue, 478 F.3d 836, 841 (7th Cir. 2007). This Court may not substitute its
judgment for that of the Commissioner by reevaluating facts, reweighing evidence,
resolving conflicts in evidence, or deciding questions of credibility. Skinner, 478 F.3d
at 841; see also Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008) (holding that the
ALJ’s decision must be affirmed even if “reasonable minds could differ” as long as
“the decision is adequately supported.”) (internal citation omitted).
The ALJ is not required to address “every piece of evidence or testimony in
the record, [but] the ALJ’s analysis must provide some glimpse into the reasoning
behind her decision to deny benefits.” Zurawski v. Halter, 245 F.3d 881, 889 (7th
Cir. 2001). In cases where the ALJ denies benefits to a plaintiff, “he must build an
accurate and logical bridge from the evidence to his conclusion.” Clifford, 227 F.3d
at 872. The ALJ must at least minimally articulate the “analysis of the evidence
with enough detail and clarity to permit meaningful appellate review.” Briscoe ex

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rel. Taylor v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005); Murphy v. Astrue, 496
F.3d 630, 634 (7th Cir. 2007) (“An ALJ has a duty to fully develop the record before
drawing any conclusions . . . and must adequately articulate his analysis so that we
can follow his reasoning . . . .”); see Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir.
2005).
Where conflicting evidence would allow reasonable minds to differ, the
responsibility for determining whether a plaintiff is disabled falls upon the
Commissioner, not the court. See Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir.
1990). However, an ALJ may not “select and discuss only that evidence that favors
his ultimate conclusion,” but must instead consider all relevant evidence. Herron,
19 F.3d at 333; see Scrogham v. Colvin, 765 F.3d 685, 698 (7th Cir. 2014) (“This
‘sound-bite’ approach to record evaluation is an impermissible methodology for
evaluating the evidence.”).
III. ANALYSIS
Plaintiff alleges that the ALJ’s decision should be remanded because: (1) his
RFC determination was erroneous; (2) he improperly evaluated Plaintiff’s
credibility; and (3) he erred at step five of the sequential evaluation process. For the
reasons that follow, the Court finds that the ALJ did not err in any of these
respects.
A. The ALJ’s RFC Determination was Supported by Substantial
Evidence
A plaintiff’s RFC is an administrative assessment of what work-related
activities an individual can perform despite his limitations. 20 C.F.R. § 404.1545;
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Social Security Ruling (“SSR”) 96-8p; Dixon v. Massanari, 270 F.3d 1171, 1178 (7th
Cir. 2001). In assessing a plaintiff's RFC, the ALJ must consider both the medical
and nonmedical evidence in the record. Id. Additionally, the ALJ's RFC assessment
must include a narrative discussion describing how the evidence supports each
conclusion, citing specific medical facts. SSR 96-8p; see also Briscoe, 425 F.3d at
352.
Plaintiff first contends that the ALJ’s RFC discussion was not a functional
assessment of Plaintiff’s work-related abilities, but rather “a lengthy and laborious
description” of Plaintiff’s medical evidence. (Pl.’s Br. at 6.) In particular, he alleges
that the ALJ failed to provide an RFC assessment at all when he determined that
Plaintiff was capable of “a range of unskilled work.” (Pl.’s Br. at 6.) This argument
is puzzling to the Court as a full reading of the ALJ’s discussion reveals that he
additionally determined Plaintiff:
[H]ad the capacity to perform the exertional and nonexertional
requirements of work except for understanding and remembering
complex instructions, carrying out detailed or complex tasks, or simple
tasks requiring more than occasional changes in routine, sustained
interaction with the public, and more than occasional contact with
supervisors, or team work with coworkers.
(R. 22.) Thus, contrary to Plaintiff’s contentions, the ALJ submitted the medical
evidence in the record to a functional assessment that resulted in an RFC
determination.
Next, Plaintiff urges this Court to reverse the ALJ’s decision based on what
Plaintiff asserts was the ALJ’s faulty evaluation of his treating physicians’ opinions.
(Pl.’s Br. at 6.) A treating physician's opinion is entitled to controlling weight if it is
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“well-supported” and “not inconsistent with other substantial evidence” of record. 20
C.F.R. § 416.927; Scott v. Astrue, 647 F.3d 734, 739 (7th Cir. 2011). Even if a
treating physician's opinion is not given controlling weight, the ALJ must still
determine what value the assessment does merit and explain his determination,
considering “the length, nature, and extent of the treatment relationship, frequency
of examination, the physician's specialty, the types of tests performed, and the
consistency and supportability of the opinion.” Moss v. Astrue, 555 F.3d 556, 561
(7th Cir. 2009) (citing 20 C.F.R. § 404.1527(d)(2)); Scott, 647 F.3d at 740.
Plaintiff is correct that the ALJ erred when he failed to articulate the weight
he accorded to Dr. Brar and Dr. Hoop. 8 Here, the ALJ’s discussion is void of any
assessment regarding the appropriate weight to be accorded to the two treating
sources. 20 C.F.R. § 404.1527. Yet, the Court does not need to remand this case
despite this error, “if it is predictable with great confidence that the agency will
reinstate its decision on remand because the decision is overwhelmingly supported
by the record.” Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir. 2010).
The Court recognizes that the evidence establishes a treating relationship
between Plaintiff and each doctor respectively; however, neither treating physician
offered an opinion regarding Plaintiff’s functional capacities during the relevant
period. For example, although Dr. Brar consistently diagnosed Plaintiff with
depression and mood disorder, his treatment notes do not indicate whether those
In his brief, Plaintiff intimates that Plaintiff visited several psychologists at DCHD. Upon
review of the record we find that Dr. Hoop is the only medical source, as defined by the
regulations, which Plaintiff presented to at DCHD. Plaintiff’s record reveals reports from
two Licensed Clinical Social Workers(“LCSWs), however, a LCSW is not a source who can
provide evidence to establish an impairment under the regulations. 20 C.F.R. § 404.1513.
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diagnoses would result work-related limitations. Similarly, Dr. Hoop diagnosed
Plaintiff with mood disorder, but never extend that finding to an evaluation of
Plaintiff’s functional capacities. The ALJ himself addresses this deficiency in his
decision, noting that generally the opinions of examining physicians are entitled to
the most evidentiary weight, but that the present record “does not contain a[n]
[RFC determination] from any examining clinician.” (R. 20.) Because neither of
Plaintiff’s examining sources gave opinions as to his functional limitations, we are
confident that no reasonable ALJ on remand would reach a different conclusion
regarding Plaintiff’s RFC. Accordingly, we find that the ALJ’s failure to weigh their
opinions was harmless error.
Finally, Plaintiff alleges that the ALJ “played doctor” because he “utilize[d]
his own ‘hunches’ to bring about medical conclusions.” (Pl.’s Br. 6–7.) To illustrate
his point, Plaintiff highlights one instance in the ALJ’s decision where he stated
that Plaintiff “did not exhibit any obvious cognitive impairment at the hearing.” (R.
18.) According to Plaintiff, this conclusion is particularly harmful to the ALJ’s final
RFC assessment because his mental impairments do not necessarily manifest
themselves cognitively, thus the ALJ could not rely on his observation when
determining his RFC. (Pl.’s Br. at 6–7.)
In essence, Plaintiff asks the Court to overturn the ALJ’s determination,
based on a single sentence he extracted from the ALJ’s seven page RFC discussion.
This argument ignores the portions of the ALJ’s decision where he fully examined

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Plaintiff’s medical records, the expert testimony, and the reports of the DDS
consultants explaining how each informed his RFC determination.
Notably, the Seventh Circuit has found that a ME’s testimony, buttressed by
the opinions of state agency consultants, may provide the basis for the ALJ’s RFC
finding. See White v. Barnhart, 415 F.3d 654, 659 (7th Cir. 2005). In addition to
inconsistencies in the objective medical evidence, the ALJ here relied on the
testimony of Dr. Ellen Rozenfeld, who opined that Plaintiff retained the ability to
understand, remember, and carry out simple instructions, did best in situations
without sustained interaction with the general public, could not perform joint or
shared tasks with co-workers, could adapt to routine work changes, and worked
best with only occasional supervisory contact. (R. 42.)
Likewise, the ALJ relied on the opinion of Plaintiff’s second reviewing
consultative physician who found that he suffered from a social functioning
impairment as a result of his mood disorder. (R. 20.) There, the examiner opined
that Plaintiff was capable of working in a setting with minimal demands for close
supervision or contact with others—a finding wholly consistent with Dr. Rozenfeld’s
opinion and the ALJ’s ultimate RFC. Therefore, contrary to Plaintiff’s contention,
the ALJ did not improperly assume the role of “doctor”, but rather grounded his
RFC determination in the relevant evidence of record.
B. The ALJ’s Credibility Determination was not Patently Wrong
An ALJ's credibility determination is granted substantial deference by a
reviewing Court unless it is “patently wrong,” and not supported by the record.

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Schmidt v. Astrue, 496 F.3d 833, 843 (7th Cir. 2007); Jen v. Barnhart, 347 F.3d 209,
213 (7th Cir. 2003). The ALJ must give specific reasons for discrediting a claimant's
testimony, and “[t]hose reasons must be supported by record evidence and must be
‘sufficiently specific to make clear to the individual and to any subsequent reviewers
the weight the adjudicator gave to the individual's statements and the reasons for
that weight.’” Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539–40 (7th Cir. 2003)
(quoting Zurawski, 245 F.3d at 887–88). The lack of objective evidence is not by
itself reason to find a claimant's testimony to be incredible. See Schmdit v.
Barnhart, 395 F.3d 737, 746–47 (7th Cir. 2005).
In this case, Plaintiff argues that the ALJ erred in finding him not credible.
(Pl.’s Br. at 7.) In support of his argument, Plaintiff points to SSR 96-7p, which
requires ALJs “be sufficiently specific to make clear to the individual and to any
subsequent reviewers the weight the adjudicator gave to the individual’s statements
and the reasons for that weight.” SSR 96-7p (1996 WL 374186) at *4 (superseded by
SSR 16-3p). 9
However, contrary to Plaintiff’s assertions otherwise, the ALJ explained the
weight he accorded to Plaintiff’s testimony, stating he “d[id] not credit [Plaintiff’s]
The Court notes that last year, the Social Security Administration updated its guidance about
evaluating symptoms in disability claims. See SSR 16-3p, 2016 WL 1119029 (effective Mar. 28,
2016). The new ruling eliminates the term “credibility” from the Administration’s sub-regulatory
policies to “clarify that subjective symptom evaluation is not an examination of the individual's
character.” Id. at *1. Though SSR 16-3p post-dates the ALJ hearing in this case, the application of a
new regulation to matters on appeal is appropriate where the new regulation is a clarification of,
rather than a change to, existing law. Pope v. Shalala, 998 F.2d 473, 482-483 (7th Cir. 1993)
(overruled on other grounds by Johnson v. Apfel, 189 F.3d 561 (7th Cir. 1999)). SSR 16-3p provides
that: “[t]he determination or decision must contain specific reasons for the weight given to the
individual's symptoms, be consistent with and supported by the evidence, and be clearly articulated
so the individual and any subsequent reviewer can assess how the adjudicator evaluated the
individual's symptoms.” SSR 16-3p at *9.
9

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allegations concerning the frequency and duration of intense symptoms associated
with his established impairments.” (R. 19.) By way of explanation, the ALJ
reasoned that Plaintiff’s testimony stating he “stayed away from people to avoid
conflicts,” was not so pervasive as to render him unable to perform activities of daily
livings such as “go[ing] out in public, shop, visit[ing] his mother, or attend[ing] his
son’s basketball games.” (Id.) In addition, the ALJ engaged in a lengthy discussion
of Plaintiff’s medical record evidence. (Id.) The ALJ’s discussion revealed
inconsistencies between the Plaintiff’s testimony regarding the side effects of his
medications (memory loss and loss of bodily functions), and the objective medical
evidence, which did not document such significant and persistent side effects. (R.
17.) Finally, the ALJ explained that Plaintiff’s symptoms were not a severe as he
alleged due to documented evidence which revealed he had learned coping
strategies by November 2011 which helped him maintain his temper when he got
angry. (R. 18.)
Because the ALJ explicitly assigned a weight to Plaintiff’s statements, and
proceeded to explain the reasons for that assignment citing specific examples in the
record, his credibility determination was not patently wrong and therefore will not
be disturbed by the Court. Plaintiff has failed to show that the ALJ’s discussion
“rob[bed Plaintiff] and the Court of the requisite supporting evidence to reach [the
ALJ’s] conclusion.” (Pl.’s Br. at 7.)
C.

The

ALJ’s

Step

Five

Determination

was

Proper.

Finally, Plaintiff argues that the RFC hypotheticals the ALJ presented to the

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VE were incomplete because they did not account for his obesity or mental
limitations in concentration and motivation. (Pl.’s Br. at 9.) Moreover, Plaintiff
asserts the ALJ mistakenly relied on the testimony of the VE without requiring
proof of his sources of information. (Id.)10
Plaintiff seems to take issue with the way the ALJ framed his RFC
hypothetical to the VE, specifically because he did not explicitly refer to all of his
non-exertional impairments (obesity, concentration, and motivation). However, the
Seventh Circuit only requires that the hypothetical question “be supported by the
medical evidence of record.” Cass v. Shalala, 8 F.3d 552, 555–56 (7th Cir. 1993)
(citing Erhart v. Sec’y of Health & Human Servs., 969 F.2d 534, 540 (7th Cir. 1992))
(internal citation omitted).
Here, the ALJ’s hypothetical question appears to have adequately reflected
Plaintiff’s limitations. The ALJ asked the VE to consider the employability of
someone of Plaintiff’s same age, education, and work experience who was limited by
the restrictions identified by Dr. Rozenfeld (the ability to understand, remember,
and carry out simple instructions; cannot have sustained interaction with the
general public; no joint or shared tasks co-workers; no ability to adapt to routine
work changes; and work with only occasional supervisory contact). Plaintiff first
complains that these findings failed to encompass limitations related to his obesity.
In addition to the foregoing arguments, Plaintiff contends that the ALJ
mistakenly allowed the VE to make his RFC determination, expressing that it is the
ALJ’s responsibility to assess what work-related functions an individual can still
perform despite his impairments. (Pl.’s Br. at 8.) However, these assertions are
analogous to the Plaintiff’s RFC argument above, and the Court does not address
them here.
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However, the record lacks evidence that Plaintiff’s obesity impacted his RFC,
thus the ALJ was not required to include it in his hypothetical questions. Steele, 290
F.3d at 942 (stating that hypothetical questions to the VE need only account for
limitations supported by the medical evidence of record) (citations omitted).
Moreover, Plaintiff did not meet his burden articulate how his obesity would
exacerbate his social interaction impairment and further limit his functional
abilities. Prochaska v. Barnhart, 454 F.3d 731, 736–37 (7th Cir. 2006). Similarly,
the ALJ properly excluded Plaintiff’s difficulties in concentration and motivation
because no medical source opined that that his difficulties would result in a workrelated limitation. Stewart v. Astrue, 561 F.3d 679, 684 (7th Cir. 2009) (finding a
hypothetical question “must account for documented limitations of ‘concentration,
persistence, or pace,’”) (collecting cases) (emphasis added). Therefore, the VE’s
testimony constituted substantial evidence upon which the ALJ was entitled to rely,
despite any deficiencies in his hypothetical questions.
Furthermore, the VE identified the DOT as the source of information for his
testimony regarding the jobs he identified; therefore, Plaintiff’s concern that the
ALJ did not inquire into the source of his responses is misguided, particularly in
light of the fact that Plaintiff did not challenge the foundation of the expert’s
testimony at the time of the administrative hearing. See Overman v. Astrue, 546
F.3d 456, 465 (7th Cir. 2008) (stating that an ALJ was entitled to rely on a VE’s
testimony when Plaintiff failed to challenge its foundation at the administrative
hearing).

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CONCLUSION
For the foregoing reasons, Plaintiff’s motion for summary judgment is denied
and the Commissioner’s cross-motion for summary judgment is granted.
SO ORDERED.

ENTERED:

DATE:

___________________________
HON. MARIA VALDEZ
United States Magistrate

August 11, 2017

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