Davenport v. Astrue

Filing 50

MEMORANDUM Opinion and Order: Plaintiff Louise Davenport ("Plaintiff") appeals the decision of the Commissioner of Social Security ("Defendant," or the "Commissioner") to deny her application for disability benefits. Pl aintiff has filed a Motion for Summary Judgment. [Dkt. 34.] For the following reasons, Plaintiff's motion is denied [dkt. 34] and the Administrative Law Judge's decision is affirmed. - Signed by the Honorable Susan E. Cox on 5/15/2017. [For further details see order] Mailed notice (np, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LOUISE DAVENPORT,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security, 1
Defendant.

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No. 16 C 0093
Magistrate Judge
Susan E. Cox

MEMORANDUM OPINION AND ORDER
Plaintiff Louise Davenport (“Plaintiff”) appeals the decision of the
Commissioner of Social Security (“Defendant,” or the “Commissioner”) to deny her
application for disability benefits. Plaintiff has filed a Motion for Summary
Judgment. [Dkt. 34.] For the following reasons, Plaintiff’s motion is denied [dkt. 34]
and the Administrative Law Judge’s decision is affirmed.
STATEMENT
I.

Background
A.

Procedural History

Plaintiff, who filed other unsuccessful applications for disability benefits in
the past, applied for Disability Insurance Benefits (“DIB”) under Title II and
Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act on
May 2, 2012. (R. 225, 232, 247.) After her claim was denied initially and upon
Nancy A. Berryhill is substituted for her predecessor, Carolyn Colvin, pursuant to
Federal Rule of Civil Procedure 25(d).

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reconsideration, Plaintiff requested and received a hearing before an
Administrative Law Judge (“ALJ”), at which she appeared without counsel. (R. 76.)
The ALJ advised Plaintiff of her right to counsel and continued the hearing. (R.
108–110.) At her continued hearing date of March 13, 2014, Plaintiff again
appeared, waived her right to counsel, and testified before the ALJ. A vocational
expert (“VE”) also testified. (R. 40–75.)
On May 29, 2014, the ALJ issued a denial of Plaintiff’s claim, finding that
Plaintiff was able to perform her past work as a secretary or, in the alternative,
other work, and that she was not disabled as defined by the Social Security Act. (R.
34.) The Appeals Council then denied Plaintiff’s request for review, leaving the
ALJ’s decision as the final decision of the Commissioner and reviewable by this
Court under 42 U.S.C. § 405(g). See Haynes v. Barnhart, 416 F.3d 621,626 (7th Cir.
2005).
A.

Plaintiff’s Medical History

Plaintiff, who is homeless, has a bachelor’s degree and last worked in 1999 as
a secretary at a bank. (R. 47, 49, 252.) Medical records from 2001 and earlier
indicate that Plaintiff at various times reported back pain, chest congestion,
shortness of breath, leg pain, fatigue, headaches, and dizziness. (R. 519–523, 530–
31.) She tested positive for mild cardiomegaly (enlarged heart) and hypertension,
which was treated with hydrochlorothiazide. (R. 521–523.) In August 2002, she
visited the emergency room because of problems with her eye. (R. 537.) She
continued to experience hypertension, though she was not taking any medications

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at that time. (Id.) At a February 2003 medical appointment, Plaintiff complained of
excessive urination, excessive thirst, some dizziness and nausea, shortness of
breath on exertion, and leg swelling. (R. 517.) She mentioned that she had been
diagnosed with congestive heart failure. (Id.) She was prescribed two medications
for high blood pressure. (Id.)
The file also contains some medical evidence from 2004 through 2010.
Although these dates fall outside the period under consideration for the purposes of
Plaintiff’s claims of disability before 2003 and after 2012, 2 a summary of the
medical evidence is included here in order to draw a full picture of Plaintiff’s
conditions. In January 2004, she presented to the emergency room with chest pain
and reported that she had congestive heart failure. (R. 349.) However, the
emergency room physician doubted her report because she acknowledged that she
had not undergone an echocardiogram or other testing to establish that diagnosis.
Plaintiff stated that she had been diagnosed solely based on swelling in her legs and
refused to undergo cardiac testing. (Id.) A chest X-ray revealed she had bronchitis.
(R. 359.) In April 2004, she was admitted to the hospital with chest pains and
edema in her feet and legs. (R. 368–377.) A chest X-ray suggested early interstitial
pneumonia. (R. 382.) In June 2004, a stress test electrocardiogram revealed a
subnormal exercise tolerance but no symptoms suggestive of ischemia (reduced
blood flow to the heart). (R. 365.)
Plaintiff returned to the hospital in August 2005 with chest pain and left eye
pain. (R. 389.) A chest X-ray indicated some pulmonary scarring but no evidence of
2

See infra § I.E.

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congestive heart failure. (R. 395.) Follow-up eye care notes from 2005 through 2012
are difficult to read, but do confirm the presences of uveitic glaucoma in the left eye
and blepharitis (recurring inflammation of the eyelid) in the right. (R. 478, 480–483,
485, 491.) The glaucoma since has caused blindness in her left eye. (R. 445, 485,
referencing “NLP,” or “no light perception,” in the left eye.) She retains vision in her
right eye but continues to experience irritation from blepharitis, which is treated
with eye drops. (R. 445, 483, 485.)
In September 2007, Plaintiff again sought treatment for chest pain and
shortness of breath. (R. 400–01.) Treatments notes indicate she was given education
regarding non-cardiac chest pain and a prescription for blood pressure medication.
(Id.) In December 2007, she went to the emergency room reporting abdominal pain
and discomfort when urinating, and was released with prescriptions for blood
pressure medications and pantoprazole, a medication used to reduce stomach acid.
(R. 403.) April 2008 treatment notes indicate that she had swelling in both legs and
was given prescriptions for two blood pressure medications. (R. 408–09.)
In addition to care for her eye ailments, high blood pressure, and chest pain,
Plaintiff received foot care throughout 2009. (R. 436–37, 439, 443–44.) Her podiatric
records and a record of a diabetes education session describe her as a diabetes
patient, though there is no record of her actual diagnosis in her file. (R. 438, 442.) A
June 2009 record from a diabetes program indicates that the doctor was unsure
whether Plaintiff had diabetes, that her A1C was normal, and that the program

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would recheck her fasting blood sugar. (R. 441.) In July 2009, Plaintiff’s fasting
blood sugar tested at 122, and the doctor noted that she had prediabetes. 3 (R. 438.)
Plaintiff has also received treatment for arthritis. In January 2010, she had
experienced wrist pain, but recounted “significant improvement” while being
treated with methotrexate. (R. 470.) Still, she experienced stiffness for about ten
minutes in the morning. (Id.) She also reported feeling weak, with daytime
sleepiness, while taking methotrexate. (Id.) In May 2010, she described pain in
numerous joints, and stiffness in the morning in the first hour after she wakes up.
(R. 433.) She also recounted that she experienced some swelling, and shortness of
breath after walking six to seven blocks in the morning or two to three blocks later
in the day. (Id.) Notes from July 2011 characterize her arthritis as “well-controlled.”
Her pain had improved and she had no complaints, although mild tenderness in her
joints persisted. (R. 484.) In October 2011, she had run out of medications and was
again experiencing “mild” rheumatoid anthric symptoms. (R. 458.)
In a written function report dated June 8, 2012, Plaintiff attested to extreme
fatigue; pain and numbness in the upper extremities and upper back; shortness of
breath on exertion; left eye blindness; a right eye that gets stuck shut and requires
frequent flushing; itching attacks; pain in the knees, hips, ankles and lower back
after sitting for a while; and frequent headaches and dizziness. (R. 260–61.) She

A fasting blood sugar level of 126 milligrams per deciliter or higher on two separate
tests leads to a diagnosis of diabetes. http://www.mayoclinic.org/diseasesconditions/diabetes/basics/tests-diagnosis/con-20033091 (last visited March 8, 2017.) A
fasting blood sugar level of 100 to 125 is considered prediabetes. Id. Plaintiff’s earlier
glucose testing in 2004 and 2005 demonstrated glucose levels of 101 and 104, respectively.
(R. 377, 389.) All of her glucose test results of record are therefore in the prediabetes range.
3

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wrote that she had extreme fatigue and fell asleep during the day. (R. 260, 262.) She
indicated that her impairments caused her some trouble dressing, bathing, and
doing her hair. (R. 262.) She estimated that she could lift ten pounds and could walk
one to two blocks before needing to rest due to pain in her legs. (R. 266–67.) She
reported stiffness after sitting for about 15 minutes and shortness of breath when
climbing stairs. (R. 267.)
On August 2, 2012, reviewing physician Calixto Aquino, M.D. reviewed
Plaintiff’s file, including medical records from several sources, and determined that
there was insufficient evidence in the file to support a claim of disability. (R. 123–
25.) Dr. Aquino noted that an exam had been arranged with a consulting internist
in order to assess any limitations in Plaintiff’s motor abilities due to her rheumatoid
arthritis, but that Plaintiff had refused to attend the exam. (R. 123–24.) A second
state agency medical consultant, Dr. James Madison, later reviewed Plaintiff’s file
and concurred with Dr. Aquino’s assessment. (R. 131–34.)
On her first hearing date on December 12, 2013, Plaintiff explained that she
had not undergone a scheduled consultative exam because she believed that the
evidence in her file was already sufficient to establish disability. (R. 82–85.) The
ALJ indicated that he needed more evidence to make a determination and agreed to
order X-rays of her right shoulder and elbow and to reschedule her consultative
exam. (R. 104–106.) He warned her that a failure to undergo the exam would limit
the arguments available to her and would affect his decision. (R. 83–85, 98–99, 106.)

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The ALJ then explained to Plaintiff her right to counsel and postponed the hearing
in order to give her time to seek representation. (R. 108–10.)
At her second hearing date on March 23, 2014, Plaintiff again appeared
without counsel, waiving her right to representation. (R. 40, 45, 216.) She had not
undergone a consultative examination. She testified that, when walking, she
frequently had to stop due to shortness of breath, and she also had pain in her legs
and hips. (R. 50–51, 63.) She observed, “everybody walks faster than I do.” (Id.) She
stated that she had recently gone to the arthritis clinic with pain and swelling in
her hands, and that the arthritis also caused pain in her elbows and shoulders. (R.
52, 55–56.) She had trouble lifting her arms to do her hair. (R. 65.) Sometimes, her
neck was stiff as well, and she had sciatic pain going from her back to her leg. (R.
57.) She was taking Methotrexate for arthritis and Diovan for hypertension. (R. 53–
54.) She sometimes felt dizzy but did not know why. (R. 54.) She frequently fell
asleep during the day, and would get thrown out of places for falling asleep. (R. 64–
65.) She also stated that her shortness of breath was a result of congestive heart
failure. (R. 66.)
A vocational expert (“VE”) also testified. She described Plaintiff’s past work
as a secretary as light work. (R. 68.) The ALJ then asked whether Plaintiff’s past
job could be performed by a person who could work at a light exertional level but
who lacked peripheral acuity on the left side; could not climb ladders, ropes, or
scaffolds; could frequently but not constantly stoop; could only occasionally crouch,
kneel, or reach overhead; could never crawl; must avoid concentrated exposure to

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the cold and concentrated exposure to moving machinery; must avoid all exposure
to unprotected heights; and could not do commercial driving. (Id.)
The ALJ replied that such a person could do Plaintiff’s past job. (R. 68) The
ALJ inquired whether there were jobs for a person with similar non-exertional
restrictions if that person could only work at a sedentary level of exertion. (R. 68–
69.) The ALJ testified that such a person could perform work as an address clerk or
document preparer. (R. 69.) Either job would require the worker to remain on-task
for 85% of the work day, less breaks and lunch, and to be absent no more than 10 to
14 days per year. (Id.)
E.

The ALJ’s Decision

The ALJ issued a written decision on May 29, 2014, following the five-step
analytical process required by 20 C.F.R. § 416.920. (R. 17–35.) As a preliminary
matter, the ALJ found that Plaintiff met the insured status requirements for DIB
eligibility through June 30, 2003. (R. 19.) Thus, the relevant period of inquiry for
her DIB claim starts on her alleged onset date of May 7, 1999 and runs through
June 2003. (R. 19.) For her SSI claim, the relevant period starts on her application
date of May 2, 2012 and ends on the date of the ALJ’s decision. (R. 19, 21.) Thus,
this appeal is focused on the narrow question of whether the ALJ adequately
explained and supported his findings that Plaintiff was not disabled during those
periods in 1999–2003 and 2012–2014.
At step one, the ALJ found that Plaintiff had not engaged in substantial
gainful activity since her alleged onset date of May 7, 1999. (Id.) At step two, the

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ALJ concluded that Plaintiff had the severe impairments of left eye blindness;
intermittent swelling in the left hand; arthritis in both wrists; occasional dizziness;
hypertension; and obesity. (R. 21.) However, he determined that Plaintiff’s
rheumatoid arthritis, obstructive sleep apnea, diabetes mellitus, glaucoma,
shortness of breath, and pain the hips, knees, ankles, arms, and shoulders were not
severe impairments, because the file lacked evidence showing that they imposed
more than minimal limitations on Plaintiff’s functioning. (R. 21–22.) At step three,
the ALJ concluded that Plaintiff did not have an impairment or combination of
impairments that met or medically equaled the severity of any impairment listed in
20 C.F.R. Part 404, Subpart P, Appendix 1 (the “Listings”). (R. 22–25.) The ALJ
next found that Plaintiff retained the Residual Functional Capacity (“RFC”) to
perform light work, except that she can never climb ladders, ropes, or scaffolds; can
never crawl; can frequently stoop; can occasionally crouch and kneel and reach
overhead; must avoid concentrated exposure to extreme cold and all exposure to
unprotected heights; cannot use moving machinery or perform commercial driving;
and cannot perform work involving peripheral acuity on the left side. (R. 25–33.)
At step four, the ALJ concluded that, even with those limitations, Plaintiff
was able to perform her past relevant work as a secretary. (R. 33.) However, as an
alternate finding, the ALJ proceeded to step five to determine whether there were
other jobs available for a person of claimant’s age, education, work experience, and
residual functional capacity even if she were reduced to a sedentary level of
exertion. (R. 33.) He determined there were still jobs available in the national

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economy that she could perform, including the jobs of document preparer and
address clerk. (R. 33–34.) Based on those findings, the ALJ concluded that Plaintiff
was not disabled as defined by the Act. (R. 34.)
DISCUSSION
I.

Standard of 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”) (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

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Cir. 2001). In cases where the ALJ denies benefits, “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 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).
II.

The ALJ Adequately Developed the Record
Plaintiff asserts that, before making a decision in her case, the ALJ should

have better developed the record by locating additional medical records, engaging a
medical expert to testify at the hearing, and questioning her more thoroughly about
her impairments. The ALJ in a social security hearing has a duty to develop a full
and fair record, a duty that is enhanced when, as here, the claimant is
unrepresented by counsel. Nelms v. Astrue, 553 F.3d 1093, 1098 (7th Cir. 2009);
Nelson v. Apfel, 131 F.3d 1228, 1235 (7th Cir. 1997). As part of his obligation to
“scrupulously and conscientiously probe into, inquire of, and explore for all relevant
facts,” an ALJ may need to ask detailed questions, order additional examinations,
and contact treating medical sources for further information and records. Nelms,
553 F.3d at 1098. However, courts generally defer to the “reasoned judgment of the
Commissioner” as to how much evidence to gather. Id. To successfully challenge the
sufficiency of the record, a claimant must show that there has been an omission

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from the record which is “significant,” meaning that the omission was prejudicial to
the claimant. Nelson v. Apfel, 131 F.3d at 1235. Binion v. Shalala, 13 F.3d 243, 245
(7th Cir. 1994). “Mere conjecture or speculation that additional evidence might have
been obtained…is insufficient.” Id. at 246.
Plaintiff argues that the ALJ should have obtained medical records from her
earlier application for benefits, which was dismissed after Plaintiff refused to
appear at a hearing in 2007. See Davenport v. Astrue, 417 Fed. Appx. 544 (7th Cir.
2011) (affirming the ALJ’s dismissal). She states that unspecified records from the
earlier proceeding would demonstrate that she meets Listing 4.02, chronic heart
failure. The ALJ provided ample evidence to support his finding that Plaintiff does
not meet the requirements for that listed impairment. Other than Plaintiff’s own
subjective reports, there are no medical records that support a diagnosis of heart
failure, much less heart failure of the severity required to meet the Listing. In
addition, a doctor who treated her in for chest pain 2004 expressed doubt about her
congestive heart failure diagnosis, given her admission she had undergone neither
an echocardiogram nor a stress test. (R. 349.)
Plaintiff relies on Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345 (7th Cir.
2005) for the proposition that the ALJ’s failure to obtain the earlier records was
reversible error. However, in Briscoe, the claimant was found to be disabled as of
the date of his hearing, and the omitted records were deemed crucial to determining
the onset date of the claimant’s existing disability. Id. at 350–351. That is not the
case here. The ALJ provided substantial evidence for his finding regarding Listing

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4.02. Plaintiff, in turn, has not articulated what medical findings from her prior
filing might establish a diagnosis of congestive heart failure and establish its
severity. She has not undergone an echocardiogram, which is a diagnostic tool key
to establishing congestive heart failure at listings level. (R. 349.) She has therefore
failed to demonstrate that the absence of records from her earlier application
resulted in any significant omission prejudicial to her current claim. See Binion v.
Shalala, 13 F.3d at 245–246.
Plaintiff also faults the ALJ’s for failing to engage a medical expert to testify
as to whether Plaintiff’s impairments were medically equivalent to a listed
impairment. See 20 C.F.R. 404.1526(a). An updated opinion from testifying medical
expert is only required in two limited circumstances, when: (1) in the opinion of the
ALJ or the Appeals Council, the “signs, symptoms and laboratory findings” in the
record suggest that a Plaintiff’s impairments may be medically equivalent to a
listed impairment; and (2) new evidence is introduced that contradicts an earlier
reviewing consultant’s finding that that the claimant’s impairments are not medical
equivalent to a listed impairment. S.S.R. 96-6p. Neither of those circumstances
applicable here. Two reviewing physicians concluded that there was not enough
information in the record to establish a listings-level impairment. Plaintiff has not
submitted additional medical evidence that would have been likely to change the
reviewing physician’s opinion. In the absence of new medical evidence suggesting
equivalence to a Listing, a medical expert’s testimony was not required.

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Moreover, the ALJ’s attempts to gather more information in the manner
prescribed by regulations were thwarted by Plaintiff’s refusal to undergo a
consultative exam. While an ALJ makes the ultimate legal determination of
whether a Listing is met or equaled, Social Security Administration policy must
receive into the record and give weight to the opinion of a state agency physician or
other program physician on this issue. SSR 96-6p. When there is inconsistent
evidence in the file or when the evidence is insufficient to allow a determination, the
ALJ may pursue a consultative examination. 20 C.F.R. §404.1519a. Here, the state
agency medical consultants both found that there was not enough information in
the file to determine whether or not Plaintiff was disabled. Accordingly, the ALJ
attempted to gather more medical evidence by ordering a consultative exam.
Though the exam was scheduled numerous times, Plaintiff did not attend. (R. 30,
82–90.) Thus, any lack of updated information in the file is primarily attributable to
the actions of Plaintiff, not to any omission by the ALJ.
Plaintiff also asserts that, at the hearing, the ALJ should have more
thoroughly questioned her about her shortness of breath, congestive heart failure,
diabetes, and other matters. It is true that, despite Plaintiff’s mention of her
shortness of breath and diabetes, most of the ALJ’s questioning focused on her
arthritis, glaucoma, sleep disorder, and hypertension treatment. (R. 50–64.) The
ALJ did solicit further information about Plaintiff’s symptoms by asking the openended question, “Anything else you want to tell me?” (R. 65.) Plaintiff replied with
information relating to the use of her arms. (Id.) She does not explain what

14

additional information the ALJ would have garnered through more thorough
questioning, and thus has not shown that a significant omission has occurred. In
addition, prior to the hearing, Plaintiff submitted a summary of her argument and
her own descriptions of her medical history, symptoms, and treatment. (R. 497–
511.) In his written opinion, the ALJ addressed Plaintiff’s arguments and written
testimony, including her assertion that her impairments meet or equal the Listings
for chronic heart failure and inflammatory arthritis, and her assertion that she has
a severe impairment of diabetes. (R. 22–25, 27.) He accurately characterized
Plaintiff’s testimony and argument about those disorders. (Id.) At step three, the
ALJ therefore met his duties to “fully develop the record before drawing any
conclusions” and to “adequately articulate his analysis so that we can follow his
reasoning.” See Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir. 2005).
Plaintiff also contends that the ALJ should have questioned her more fully
about various factors including her medication side effects. See S.S.R. 16-3p
(replacing S.S.R. 96-7p.) But she admits that most of her side effects came from
medications that she has since discontinued using. [Dkt. 37 at ¶ 7.] She reports
relatively minor side effects of “sores in mouth” and “ear infections” from
Methotrexate. [ Dkt. 37 at ¶ 8, referencing R. 292.] In sum, she points to no
substantial information beyond that already considered by the ALJ that would have
been elicited by additional questioning. The ALJ drew as complete a picture of
Plaintiff’s conditions as he could in the absence of the consultative exam, and the
omissions alleged by Plaintiff were not so significant and prejudicial as to compel

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reversal. See Flener ex rel Flener v. Barnhart, 341 F.3d 442, 449 (7th Cir. 2004)
(holding that, where the ALJ had a “fairly complete picture” of claimant’s condition,
the failure to obtain additional test results was not a significant prejudicial
omission.) The Court therefore defers to the ALJ’s “reasoned judgment” as to how
much evidence to gather. Nelms, 553 F.3d at 1098.
III.

The ALJ Supported His Step Three Findings With Substantial

Evidence
At step three, the ALJ found that Plaintiff did not have an impairment or
impairments that, when considered together, met or equaled the severity of any
Listing. Plaintiff disputes that finding, contending that she has congestive heart
failure and rheumatoid arthritis, both at listings-level severity. In order to
challenge an ALJ’s step-three findings, “a claimant first has the burden to present
medical findings that match or equal in severity all the criteria specified by a
listing.” Knox v. Astrue, 327 F. App'x 652, 655 (7th Cir. 2009). To show that an
impairment is “equivalent” to a listed impairment, the claimant “must present
medical findings equal in severity to all the criteria for the one most similar listed
impairment.” Sullivan v. Zebley, 493 U.S. 521, 531, 110 S. Ct. 885, 891, 107 L. Ed.
2d 967 (1990) (emphasis added). The showing cannot be based solely on functional
limitations. “A claimant cannot qualify for benefits under the ‘equivalence’ step by
showing that the overall functional impact of his unlisted impairment or
combination of impairments is as severe as that of a listed impairment.” Id.

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As the ALJ notes, Plaintiff has not supplied evidence to support a diagnosis
of congestive heart failure, much less congestive heart failure of listings-level
severity. (R. 24.) When reference to the disease does appear in her medical records,
it is only as reported by Plaintiff in recounting her medical history to new medical
care providers. (R. 349, 517.) One such provider, an emergency room physician,
clearly documented his doubt as to the accuracy of Plaintiff’s self-report, given her
admission that she had not undergone the necessary testing to establish the
diagnosis. (R. 349.) Plaintiff has not provided evidence that she meets the “A”
criteria of the Listing, which must be met before the “B” criteria are considered. The
“A” criteria of Listing 4.02 requires the “medically documented presences” of either
systolic or diastolic failure with specified markers, “while on a regimen of prescribed
treatment.” Listings § 4.02. Her stress test finding of “subnormal exercise tolerance”
is not relevant to the “A” criteria. Plaintiff shows neither systolic nor diastolic
failure, nor has she been on a “regimen of prescribed treatment” for the disorder.
Therefore, any heart impairment may have does not meet the “A” criteria and
therefore falls short of meeting the Listing.
Plaintiff argues in the alternative that her symptoms are “equivalent” to the
listing for chronic heart failure, despite the state agency doctors’ opinions to the
contrary. An “ALJ may properly rely upon the opinion of [state agency] medical
experts” in determining medical equivalence. Scheck v. Barnhart, 357 F.3d 697, 700
(7th Cir. 2004). The ALJ properly relied on two state agency doctors to find that
Plaintiff’s impairments were not equivalent to any Listing, Plaintiff points to

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neither a contrary medical opinion nor any diagnostic testing that the ALJ
overlooked. Instead, she relies instead on her own lay interpretation of her
symptoms to argue equivalence. [Dkt. 47 at 5 (citing R. 336–37, “Request for
Appeals Council Review.”)] The ALJ did not err in finding that Plaintiff’s
impairments do not meet or equal the listing for chronic heart failure.
Plaintiff also asserts that she meets the listings criteria for inflammatory
arthritis, which are described in general at Section 14.00 and listed in four specific
subcategories at Section 14.09. Listing 14.00, 14.09. Plaintiff finds error in the
ALJ’s consideration of Listing 1.02, Major Dysfunction of a Joint, instead of the
correct listings for inflammatory arthritis. [Pl. Br. at 15, 17, 20] See 14.00.D.6,
14.09.D. She also faults the ALJ for pointing to the lack of blood marker evidence to
determine that her rheumatoid arthritis does not meet a the listing.
First, the ALJ did explicitly consider Listing 14.09, Inflammatory Arthritis,
in addition to numerous other listings. (R. 30.) That said, the ALJ’s explanation
regarding Plaintiff’s rheumatoid arthritis at step three of his analysis is quite brief:
he states that Plaintiff does not meet the criteria, lists the criteria, and then points
to her lack of blood level markers. As Plaintiff points out, blood marker evidence
alone is not sufficient to determine whether her arthritis meets the Listing.
However, this error is not fatal where, as here, the ALJ addressed other evidence
regarding the severity of Plaintiff’s arthritis earlier in his opinion and relied on
state agency doctors to determine no Listing was met, and Plaintiff has not
provided medical evidence that shows she meets the Listing. (R. 21–22.)

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The 14.09.B listing is met when inflammation or deformity in one or more
major peripheral joints is accompanied by involvement of two or more organs or
body systems, with one involved to at least a moderate level of severity, and at least
two of the constitutional symptoms or signs (severe fatigue, malaise, or involuntary
weight loss.) The subsection 14.09.D. listing, in turn, is established by “Repeated
manifestations of inflammatory arthritis, with at least two of the constitutional
symptoms or signs,” which a marked limitation in one of three general areas:
activities of daily living; maintaining social functioning; or completing tasks in a
timely manner due to deficiencies in concentration, persistence, or pace.
In order to support her argument that her rheumatoid arthritis satisfies all of
the criteria, Plaintiff cites her own earlier correspondence with the Administration.
[Dkt. 47, citing R. 336–37, “Unfair Hearing Complaint.”] However, as the ALJ
explained at Plaintiff’s hearing, the regulations do not permit him to find a listingslevel impairment based solely on Plaintiff’s own reports. (R. 82–87.) Instead, he
properly relied on the opinions of the state reviewing physicians who reviewed
Plaintiff’s records to determine that her symptoms listings-level severity. In
addition, as the ALJ discussed at step two of his opinion, the doctors who monitored
Claimant’s rheumatoid arthritis characterized it as “well-controlled.” She had
“mild” symptoms when she was not taking her medication. She indicated that her
morning stiffness subsided in about an hour. (R. 433.) In her hearing, she
acknowledged that the pain associated with her arthritis was intermittent. (R. 51.)
The involvement of her eye, in the form of right eye blepharitis, was controlled with

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medication. In sum, Plaintiff has not met her burden of showing that her arthritis
meets or equals any subcategory of the listing for inflammatory arthritis.
IV.

The ALJ Did Not Err By Omitting Congestive Heart Failure and

Rheumatoid Arthritis From His List of Severe Impairments at Step Two
Plaintiff argues that the ALJ erred at step two by omitting congestive heart
failure and rheumatoid arthritis from his list of her severe impairments. The step
two determination that a claimant has a “severe impairment,” defined as any
impairment that causes “more than a minimal effect on an individual’s ability to do
basic work activities,” allows an ALJ to proceed to the next step of the five-step
sequential process. Curvin v. Colvin¸778 F.3d 645, 649 (7th Cir. 2015). In this case,
the ALJ found that Plaintiff did have the severe impairments of left eye blindness;
intermittent swelling in the left hand; arthritis in both wrists; occasional dizziness;
hypertension; and obesity. (R. 21.)
The Court did not err in omitting additional impairments from the list at step
two. As noted above, the ALJ properly found that congestive heart failure was not
among Plaintiff’s medically-determinable impairments because no record evidence
establishes the diagnosis. (R. 24.) See SSR 96-04 (“An ‘impairment’ must result
from…abnormalities that can be shown by medically acceptable clinical and
laboratory diagnostic techniques.”) Regulations do not permit an ALJ to establish
the existence of an impairment based on symptoms alone. (Id.)
The ALJ did determine that Plaintiff has rheumatoid arthritis, but then
provided substantial evidence to support his finding that the impairment does not

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impose more than a minimal effect on Plaintiff’s abilities. (R. 21–22.) In addition to
mentioning the lack of blood markers, the ALJ noted that doctors characterized
Plaintiff’s arthritis as “mildly active” and that her morning joint stiffness was
“intermittent” and short-lasting. (Id.) Later, in assessing Plaintiff’s RFC, the ALJ
fully considered the limitations caused by Plaintiff’s rheumatoid arthritis when he
found limits in her capacity for postural movements and overhead reaching. (R. 25.)
The ALJ did not err in omitting Plaintiff’s rheumatoid arthritis from his list of
severe impairments at step two.
V.

The ALJ’s Evaluation of Plaintiff’s Subjective Symptom Severity is

Not Patently Wrong
Plaintiff argues that the ALJ performed a flawed analysis of her credibility
by relying heavily on her failure to appear at a scheduled consultative exam. The
Social Security Administration (the “Administration”) recently clarified its subregulatory policies about symptom evaluation, eliminating the term “credibility” to
emphasize that “subjective symptom evaluation is not an examination of the
individual’s character.” See SSR 16-3p, 2016 WL 1119029 at *1 (effective March 28,
2016). The underlying statute, regulations and applicable Seventh Circuit law about
assessing claimants’ statements remain unchanged. 20 C.F.R. § 404.1529; see also
Cole v. Colvin, 831 F.3d 411, 412 (7th Cir. 2016.)
According to Social Security regulations, an ALJ must determine the severity
and persistence of a claimant’s symptoms through a two-step process. S.S.R. 16-3p.
First, he must determine that the claimant has a medically-determinable

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impairment (“MDI”) that can be expected to cause the claimant’s claimed
symptoms. An ALJ may not find a medically-determinable impairment based on the
claimant’s oral or written testimony. Instead, “medical signs and laboratory
findings, established by medically acceptable clinical or laboratory diagnostic
techniques,” must establish the diagnosis. 20 C.F.R. § 404.1529(b). Only then can
the ALJ move on to the second step, in which he must evaluate “the intensity and
persistence” of the individual’s reported symptoms pursuant to objective medical
evidence and other evidence. 20 C.F.R. §404.1529(c), S.S.R. 16-3p. Among the
factors to be considered are “the claimant's daily activities, her level of pain or
symptoms, aggravating factors, medication, treatment, and limitations.” Villano v.
Astrue, 556 F.3d 558, 562 (7th Cir. 2009) (citations omitted); see 20 C.F.R. §
404.1529(c), S.S.R. 16-3p. An ALJ must explain his credibility determination “by
discussing specific reasons supported by the record.” Pepper v. Colvin, 712 F.3d 351,
367 (7th Cir. 2013). The ALJ’s determination may be overturned only if it is
unsupported by substantial evidence or is “patently wrong.” McKinzey v. Astrue, 641
F.3d 884, 890 (7th Cir. 2011), Craft v. Astrue, 539 F.3d 668, 678 (7th Cir. 2008).
The ALJ found that Plaintiff’s statements about the intensity, persistence,
and limiting effects of her symptoms were not entirely credible. (R. 30.) Contrary to
Plaintiff’s assertion, the ALJ provided numerous reasons for this finding and did
not base it solely on her refusal to cooperate with a consultative exam. The ALJ
described Plaintiff’s testimony in detail and found it both in internally inconsistent
and in large part unsupported by the medical evidence. (R. 26–27, 30–31.) For

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example, while Plaintiff testified that she has disabling diabetes, the file shows no
clear diabetes diagnosis, and she acknowledged that her A1C levels are normal. 4 (R.
30.) Similarly, when Plaintiff told an emergency room physician that she had
congestive heart failure, the physician noted that she had not undergone the
necessary tests to establish that diagnosis. (R. 31.) The ALJ also properly rejected
her argument that, because she had allegedly received substandard care, her own
lay diagnoses and subjective reports were more reliable than the notes of the
doctors who treated her. (R. 30–31.) See 20 C.F.R. 404.1529(a) (“statements about
your pain or other symptoms will not alone establish that you are disabled.”)
As for Plaintiff’s rheumatoid arthritis, the ALJ urged Plaintiff to attend a
consultative exam in order to determine what impact, if any, her disorder had on
her ranges of motion. Absent such an exam, the ALJ based his judgment about the
severity of her arthritis on the available medical evidence and in part on Plaintiff’s
own reports, including her report to her doctor that the stiffness in her joints in the
morning subsided after about an hour, and her testimony that the pain was
“intermittent.” (R. 51, 433.) The ALJ also noted that had left the hospital against
advice, was non-compliant with medications, and on several occasions had refused
additional therapies, suggesting that her symptoms were not as limiting as she
alleged. (R. 31.)

The A1C test provides information about a person’s average level of blood glucose
over the past three months. It can be used to diagnose and manage Type 2 diabetes and
prediabetes. National Institute of Diabetes and Digestive and Kidney Disease, “The A1C
Test & Diabetes,” available at https://www.niddk.nih.gov/healthinformation/diabetes/overview/tests-diagnosis/a1c-test (last visited March 17, 2017.)
4

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VI.

Remaining Arguments
Plaintiff makes several objections to the ALJ’s step four and five findings

regarding her ability to work. In these arguments, she re-asserts her self-diagnosis
of congestive heart failure and restates her claimed restrictions of difficulty walking
and shortness of breath. The ALJ accounted for these claimed restrictions by
providing an alternate step five finding assuming a restriction to sedentary labor.
(R. 33.) Plaintiff also raises an argument that the ALJ overlooked evidence that she
had trouble using her hands and arms, but she supports this argument only with
references to her own written and oral testimony and no medical evidence. [Dkt. 35
at 18 (citing dkt. 37 at ¶¶ 74, 75 (citing Plaintiff’s written and oral testimony))]. The
ALJ accounted for Plaintiff’s documented shoulder problems by limiting her to
occasional, not frequent or constant, overhead reaching bilaterally. (R. 25.) Further,
the ALJ noted Plaintiff’s testimony that, despite some reported difficulties using her
hands, she was able to use kitchen tools and utensils, open jars and food packages,
turn pages, and sort papers or hold a pen, though these last two activities did
require occasional breaks to stretch her hands. (R. 27.) The ALJ therefore supported
with substantial evidence his decision to omit any hand limitation from Plaintiff’s
RFC.
Plaintiff also maintains that the ALJ erred in determining her date last
insured (“DLI”). Because she raises this argument only in her reply brief, in
response to a clarifying footnote in the Commissioner’s Brief, the argument is
deemed waived. However, it does not appear that Plaintiff would have had success

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on the merits even if she had advanced the argument in her opening brief. She
bases her argument solely on an incorrect notation, in some portions of the
administrative record, of a DLI of June 30, 2006. To be eligible for benefits, a
claimant must establish that her disability arose on or before her DLI. 42 U.S.C. §
423(a)(1)(A) and (c)(1); Allord v. Astrue, 631 F.3d 411, 416 (7th Cir. 2011). A
claimant, like Plaintiff, who is over the age of 31 and does not have any prior period
of disability, must have “not less than 20 quarters of coverage during the 40–
quarter period” preceding the disability onset date; essentially, she must have
worked for at least five of the prior ten years. 42 U.S.C. § 423(c)(1)(B). Plaintiff
concedes that she last worked in May 1999, a fact confirmed by earnings records in
her Social Security file. (R. 238–246). The ALJ relied on Plaintiff’s work dates to
determine that she was insured only through June 30, 2003. (R. 17).
CONCLUSION
Plaintiff’s motion is DENIED and the decision of the Commissioner is
AFFIRMED.

Date: 5/15/2017

_______________________________________
U.S. Magistrate Judge, Susan E. Cox

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