Tolefree v. Colvin
Filing
32
MEMORANDUM Opinion and Order Signed by the Honorable Michael T. Mason on 9/21/2018.(rbf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TERRANCE TOLEFREE,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
NANCY A. BERRYHILL 1, Acting
Commissioner of Social Security,
Defendant.
No. 16 C 7103
Magistrate Judge Mason
MEMORANDUM OPINION AND ORDER
Michael T. Mason, United States Magistrate Judge:
Plaintiff Terrance Tolefree (“Claimant”) filed a motion for summary judgment
seeking reversal of the final decision of the Commissioner of Social Security
(“Commissioner”), denying his claim for child disability benefits. The Commissioner has
filed a cross-motion asking the Court to uphold the decision of the Administrative Law
Judge (“ALJ”). The parties have consented to the jurisdiction of the United States
Magistrate Judge pursuant to 28 U.S.C. § 636(c). This Court has jurisdiction to hear this
matter pursuant to 42 U.S.C. § 405(g) and 138(c)(3). For the reasons that follow,
Claimant’s memorandum, which this Court will construe as a motion for summary
judgment [6], is denied and the Commissioner’s response, which this Court will construe
as a cross-motion for summary judgment [26], is granted.
I. BACKGROUND
A. Procedural History
1
Nancy A. Berryhill is substituted for her predecessor, Carolyn W. Colvin, pursuant to Federal Rule
of Civil Procedure 25(d).
1
Claimant filed his applications for Child’s Insurance Benefits (“CBD”) on June 29,
2012, alleging disability beginning on January 1, 1998 due to social/emotional problems,
anxiety/panic attacks, depression/learning problems, and problems with his knees that
caused issues walking and standing. (R. 311-14, 343.) Claimant’s application was
denied initially and on reconsideration. (R.124-48.) Claimant requested a hearing before
an ALJ, which was held on March 21, 2014. (R. 30.) A supplemental hearing was held
on August 12, 2014. (R. 78.) On December 19, 2014, the ALJ issued a written decision
finding that Claimant was not disabled. (R. 13-23.) On May 16, 2016, Claimant’s request
for review by the Appeals Council was denied, making the ALJ’s decision the final
decision of the Commissioner. (R. 1-3.) This action followed.
B. Medical Evidence 2
1. Treating Physician
On September 8, 2009, Sanker Jayachandran, M.D., submitted a statement that
he had diagnosed Claimant with generalized anxiety disorder. (R. 457.) Claimant was
being treated with Lexapro. (Id.) On September 17, 2009, Claimant reported anxiety
with testing. (R. 835.) He also reported having good grades and having close friends.
(Id.)
From January 2011 through March 2014, Claimant was periodically treated at
Confidential Care. (R. 816-35, 855-67.) He was reported to have problems with
sleeping, rapid heartrate, and anxiety. (R. 828-29, 835.) He was not on any medication.
(Id.) In November 2011, his mood was noted as depressed and anxious. (R. 831.) His
2
The Court notes that there is also evidence of knee issues in the record. The ALJ found these
impairments non-severe and Claimant does not object to the ALJ’s conclusion.
2
Global Assessment of Functioning (“GAF”) score was 60, but it was expected to be 70
at discharge. 3 (R. 833.)
On June 29, 2012, Claimant met with Dr. Jayachandran and reported depression
and anxiety. 4 (R. 823, 825.) The treatment note indicated that Claimant was not taking
any medication. (R. 824.) Medication and individual therapy were recommended. (R.
827.) On August 27, 2012, Claimant reported that Prozac was working well. (R. 821.)
He was also taking Viibryd. (R. 856.) On November 2, 2012, Claimant denied any side
effects from the medication and reported improvement in his appetite and sleep. (R.
821.)
On May 10, 2013, progress notes stated that Claimant’s attention and
concentration were poor, and his mood and affect were anxious and depressed. (R.
818-19.) Similar findings were again noted on May 14, 2013, and on October 4, 2013.
(R. 816-17, 864-65.) On December 27, 2013, Claimant reported doing well but had
been out of Viibryd for one week. (R. 861.) In February and March 2014, Claimant
reported feeling down. (R. 857-60). Once again, his attention and concentration were
poor, and his mood and affect were depressed and anxious. (Id.)
On March 13, 2014, Dr. Jayachandran completed a medical source statement. 5
(R. 850-52.) He noted that Claimant’s current GAF score was between 41-50. (R. 850.)
The doctor opined that Claimant would be moderately limited in all the listed skills
required for unskilled work because of his anxiety and depression. (R 851). In addition,
3 A score between fifty-one and sixty represents “moderate symptoms” or “moderate difficulty in social,
occupational, or school functioning.” See Steele v. Colvin, No. 14 C 3833, 2015 WL 7180092 at *1 (N.D.
Ill. Nov. 16, 2015). Anything above sixty would indicate mild symptoms. Id.
4 A different treatment note seemed to attribute Claimant’s depression, in part, to his knee injury. (R. 822.)
5 Dr. Jayachandran also submitted a less detailed statement in May 2013, in which he opined that
Claimant’s condition prevented him from sustaining gainful employment. (R. 837.)
3
the doctor indicated that Claimant’s symptoms would interfere with his attention and
concentration more than 20% of the day. (R. 852.) He also believed that Claimant was
moderately limited in daily activities, social functioning, and concentration, persistence,
or pace. (Id.) Dr. Jayachandran further opined that Claimant would experience continual
episodes of deterioration or decompensation in a work-like setting that would cause him
to withdraw from that situation or to experience exacerbation of signs and symptoms.
(Id.) Likewise, the doctor stated that Claimant would miss more than three days of work
a month. (R. 851.)
2. Agency Physicians
On September 18, 2012, Claimant underwent a consultative exam (“CE”) with
Jeffrey Karr, Ph.D. (R. 808-12.) Claimant stated that he was attending a junior college
and would drive there two days a week. (R. 809.) His mother reported that she had to
wake him up, he resisted bathing and dressing, and that he was reluctant to leave the
house. (Id.) She also stated that he had a friend visit him about once a week. (Id.)
Claimant reported being depressed because he felt like a failure and because he “[did
not] catch on.” (R. 810.) He also reported being self-critical, withdrawn and hopeless,
and having trouble sleeping. (Id.) Dr. Karr documented that he presented as “passive,
constricted, withdrawn.” (R. 812.) Claimant was diagnosed with dysthymic disorder and
generalized anxiety disorder. (Id.)
On October 4, 2012, DDS reviewing source Donald Cochran, Ph.D., opined that
Claimant had moderate limitations in his activities of daily living, maintaining social
functioning, and concentration, persistence, or pace. (R. 130-33.) Dr. Cochran noted
4
that Claimant did not have any episodes of decompensation. (Id.) On April 4, 2013,
DDS reviewing source Terry A. Travis, M.D., reached a similar conclusion. (R. 143-47.)
3. School Records
Educational records noted that Claimant was receiving special education
services and social work services for an emotional disturbance. (R. 331, 453, 471.)
School records indicated that he was a good student, had excellent classroom behavior,
was very respectful, and had many friends. (Id.) In addition, the records noted that he
was cooperative, courteous, prepared for class, and got along with others and was able
to block out distractions. (R. 451.) Claimant participated in football and basketball. (R.
529.) In 2009, education notes indicated that Claimant did not meet the criteria for
emotional disability. (R. 524.) After graduating, Claimant enrolled in a community
college. (R. 444-45.)
C. Medical Expert Testimony
On March 21, 2014, at Claimant’s first hearing, Michael E. Cremerius, Ph.D., a
medical expert (“ME”) testified. (R. 180.) He opined that Claimant would have marked
limitations in social functioning and in concentration, persistence, or pace. (R. 69.) His
decision was based on a combination of testimony and the evidence, including Dr.
Jayachandran’s opinion. (Id.) A second ME, Ellen Rozenfeld, Psy.D., testified at the
supplemental hearing. (R. 303-04.) She stated that Claimant had moderate limitations in
activities of daily living, moderate limitations in social functioning, and moderate
limitations in concentration, persistence, or pace. (R. 108-09.) She further testified that
Claimant was limited to simple/routine tasks because of his learning problems and shy
nature. (R. 110.) Dr. Rozenfeld noted that Claimant could handle incidental questions,
5
could work in proximity to co-workers without joint or shared tasks. (Id.) Likewise, she
opined that Claimant could handle occasional contact with supervisors and would do
best in a predictable work setting where changes were routine in nature. (Id.)
D. Claimant’s Testimony
Claimant testified that he struggles with being around people. (R. 35.) He stated
that he does not have friends, and that he had one friend in high school. (R. 39.) To
cope with his social anxiety, Claimant attempted to play sports, but he ultimately quit.
(R. 35, 39.) He explained that one of the reasons he quit was because he struggled with
following directions and was not catching on fast enough, resulting in frustration. 6 (R.
42.)
Claimant also testified that he has trouble following directions and staying on
task. (R. 42-43, 48.) He said that his inability to stay on task leads to frustration, which
in turn leads to him getting upset and shutting down. (R. 48-49.) He stated that he is
afraid to ask for help. (R. 42.) According to Claimant, he received a lot of one-on-one
help in high school. (R. 41,49.) Likewise, Claimant stated that he stopped going to junior
college, in part, because he did not feel comfortable and would become frustrated. (R.
34, 46.) Claimant testified that he received certification as a nursing assistant but had
help from his siblings. (R. 35, 42, 88-89.) He further testified that he does have a
driver’s license but does not drive. (R. 36-37.) He also testified he was not taking
medication. (R. 84.)
II. Analysis
A. Standard of Review
6
His father, however, testified that Claimant was a starter in both sports, and that he did not play all four
years because of injury. (R. 61-62.)
6
This Court will affirm the ALJ’s decision if it is supported by substantial evidence
and free from legal error. 42 U.S.C. § 405(g); Steele v. Barnhart, 290 F.3d 936, 940 (7th
Cir. 2002). Substantial evidence is more than a scintilla of evidence; it is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Diaz v. Chater, 55 F.3d 300, 305 (7th Cir. 1995)(quoting Richardson v. Perales, 402
U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) ). We must consider the entire
administrative record, but will not “reweigh evidence, resolve conflicts, decide questions
of credibility, or substitute our own judgment for that of the Commissioner.” Lopez v.
Barnhart, 336 F.3d 535, 539 (7th Cir. 2003)(citing Clifford v. Apfel, 227 F.3d 863, 869
(7th Cir. 2000)). This Court will “conduct a critical review of the evidence[,]” and we will
remand if the Commissioner’s decision “lacks evidentiary support or an adequate
discussion of the issues.” Lopez, 336 F.3d at 539 (quoting Steele, 290 F.3d at 940).
In addition, while the ALJ “is not required to address every piece of evidence,” he
“must build an accurate and logical bridge from evidence to his conclusion.” Clifford,
227 F.3d at 872. The ALJ must “sufficiently articulate [her] assessment of the evidence
to assure us that the ALJ considered the important evidence ... [and to enable] us to
trace the path of the ALJ’s reasoning.” Carlson v. Shalala, 999 F.2d 180, 181 (7th Cir.
1993)(per curiam)(quoting Stephens v. Heckler, 766 F.2d 284, 287 (7th Cir. 1985)).
B. Analysis under the Social Security Act
In order to qualify for CDB 7, a claimant must be “disabled” under the Social
Security Act (the “Act”). A person is disabled under the Act if “he or she has an inability
7
The analysis for CDB claims is essentially the same as it is for Disability Insurance Benefits (“DIB”) or
Supplemental Security Income Benefits (“SSI”). With CDB claims however, the Claimant must establish
disability before turning twenty-two. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350; See Walton v. Berryhill,
No. 1:15-CV-1736-DKL-JMS, 2017 WL 1077677, at *2 (S.D. Ind. Mar. 22, 2017)(“An unmarried
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to engage in any substantial gainful activity by reason of a medically determinable
physical or mental impairment which can be expected to last for a continuous period of
not less than twelve months.” 42 U.S.C. § 423(d)(1)(A). In determining whether a
claimant is disabled, the ALJ must consider the following five-step inquiry: “(1) whether
the claimant is currently employed, (2) whether the claimant has a severe impairment,
(3) whether the claimant’s impairment is one that the Commissioner considers
conclusively disabling, (4) if the claimant does not have a conclusively disabling
impairment, whether he can perform past relevant work, and (5) whether the claimant is
capable of performing any work in the national economy.” Dixon v. Massanari, 270 F.3d
1171, 1176 (7th Cir. 2001). The claimant has the burden of establishing disability at
steps one through four. Zurawski v. Halter, 245 F.3d 881, 885-86 (7th Cir. 2001). If the
claimant reaches step five, the burden then shifts to the Commissioner to show that “the
claimant is capable of performing work in the national economy.” Id. at 886.
Here, the ALJ applied the five-step process in denying Claimant’s application for
benefits. At step one, the ALJ determined that Claimant had not engaged in substantial
gainful activity since his alleged onset date of January 1, 1998. (R. 15.) At step two, the
ALJ determined that Claimant had the following severe impairments: depression,
learning disability, and generalized anxiety disorder. (Id.) The ALJ found that Claimant’s
knee issues were non-severe impairments. (Id.) At step three, the ALJ concluded that
dependent child over the age of eighteen years is entitled to receive child's disability insurance benefits
based on the earnings record of an insured parent who is entitled to disability benefits if the child has a
disability that began before he became twenty-two years old.”) In this case, the ALJ found that Claimant
was under the age of twenty-two at his alleged onset date. (R. 15.)
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Claimant does not have an impairment or combination of impairments that meets or
medically equals the severity of one of the Commissioner’s listed impairments. (R. 16.)
The ALJ went on to assess Claimant’s RFC, finding Claimant had the residual
functional capacity to perform a full range of work at all exertional levels, except would
be limited to unskilled work tasks of a simple, repetitive, and routine nature that could be
learned by demonstration or in 30 days or less, that did not require a fast pace, and
involved no strict production quotas and no more than occasional decision making or
changes in the work setting. (R. 17.) He could maintain occasional, superficial, and
incidental contact with the general public and occasional interaction with supervisors
and coworkers. He could work in proximity to others but not on tandem or shared tasks,
and he could meet end-of-the-day production goals. (Id.)
At step four, the ALJ found that Claimant had no past relevant work. (R. 21). At
step five, the ALJ found that there were jobs that existed in significant numbers in the
national economy that Claimant could perform. (R. 22.) Specifically, the ALJ found
Claimant could work as an industrial sweeper/cleaner, kitchen helper, and sandwich
maker. (Id.) Claimant now argues that the ALJ’s decision is not supported by substantial
evidence and requires remand. We address Claimant’s arguments below, ultimately
finding that the ALJ’s opinion should be affirmed.
C. The ALJ Properly Evaluated the Treating Source’s Opinion.
In evaluating a claim of disability, an ALJ “must consider all medical opinions in
the record.” Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013); See 20 C.F.R. §
404.1527(b). The opinion of a treating physician is afforded controlling weight if it is both
“well-supported” by clinical and diagnostic evidence and “not inconsistent with the other
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substantial evidence” in the case record. 20 C.F.R. § 404.1527(c)(2); See Scott v.
Astrue, 647 F.3d 734, 739 (7th Cir. 2011). If the ALJ does not grant a treating source’s
medical opinion controlling weight, then he must consider the following factors, including
the examining relationship, treatment relationship, length and frequency of treatment,
nature and extent of treatment, supportability, consistency, and specialization, among
others. 20 C.F.R. § 404.1527(c). An ALJ who declines to give controlling weight to the
opinion of a treating physician must offer “good reasons” that are “sufficiently specific” in
explaining what weight, if any, he assigned it. 20 C.F.R. § 404.1527(d)(2); Schmidt v.
Astrue, 496 F.3d 833, 842 (7th Cir. 2007); Eakin, 432 Fed.Appx. at 612.
Contrary to Claimant’s assertion, the ALJ did not err in discounting Dr.
Jayachandran’s assessment and sufficiently articulated her reasons for doing so. The
ALJ gave the doctor’s assessment “no weight,” finding that it was almost exclusively
based on Claimant’s subjective complaints and inconsistent with the record, including
the doctor’s own treatment notes. (R. 20.) Claimant however, argues that the ALJ
reasoning is flawed given the nature of Claimant’s impairments. While Claimant is
correct that subjective complaints may play a particularly important role in the
assessment and treatment of mental impairments, the Seventh Circuit has made clear
that if a treating physician's opinion is “based solely on the patient's subjective
complaints, the ALJ may discount it.” Bean v. Astrue, No. 11 C 74, 2012 WL 3069190,
at *10 (N.D. Ill. July 27, 2012)(quoting Ketelboeter v. Astrue, 550 F.3d 620, 625 (7th Cir.
2008)).
Regardless, the ALJ did not discount Dr. Jayachandran’s opinion simply because
it was based on Claimant’s subjective complaints. Instead, the ALJ concluded that Dr.
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Jayachandran’s opinion was inconsistent with the record, including his own treatment
notes. Johnson v. Berryhill, No. 17-1696, 2018 WL 3855017, at *3 (7th Cir. Aug. 14,
2018)( “Medical evidence may be discounted if it is internally inconsistent.”) For
example, Dr. Jayachandran opined that Claimant would have “continual” episodes of
decompensation.” (R. 852.) There was, however, no evidence that Claimant was
hospitalized; nor was there evidence of significant alterations in his medications. See
Larson v. Astrue, 615 F.3d 744, 750 (7th Cir. 2010)(noting that episodes of
decompensation are temporary increases in symptoms, which can be inferred through
hospitalizations and medication adjustments.) Likewise, as the ALJ pointed out,
educational records also fail to support Dr. Jayachandran’s limitations. Records
describe Claimant as a good student who had excellent classroom behavior, was very
respectful, and had many friends. (R. 331, 453, 471.) He was cooperative, courteous,
prepared for class, got along with others, and was able to block out distractions. (R.
451.) Although Claimant received special services, school records indicate that by 2009,
Claimant did not meet the criteria for emotional disability. (R. 524.) Ultimately, there was
no evidence that Claimant experienced periodic exacerbations in symptoms.
Nevertheless, Claimant argues that the ALJ’s reasoning was flawed because the
ALJ “failed to identify any inconsistent medical evidence.” (Mot. at 7.) To the extent that
Claimant is arguing that the ALJ’s decision was flawed because she did not cite
evidence in the same paragraph in which she discussed Dr. Jayachandran’s opinion,
the Court notes that there is “no requirement of such tidy packaging.” Buckhanon ex rel.
J.H. v. Astrue, 368 F. App'x 674, 678–79 (7th Cir. 2010)(noting that the ALJ was not
required to incorporate evidence within a single paragraph.) The ALJ discussed all the
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evidence in the record, including Dr. Jayachandran’s notes. (R. 18-20.) After
summarizing the evidence, she explained that none of his treatment notes supported his
limitations. Although the ALJ’s discussion of the evidence was not optimally organized,
she nonetheless sufficiently articulated her reasoning. See Rice v. Barnhart, 384 F.3d
363, 369 (7th Cir. 2004)(explaining that courts will “give the opinion a commonsensical
reading rather than nitpicking at it.”)
Claimant further argues that Dr. Jayachandran’s notes contain supportive clinical
findings of depressed and anxious mood, and poor attention and concentration. (Mot. at
7.) While true, the non-specific findings cited by Claimant do not support a basis for
overturning the ALJ’s decision. When the “ALJ has considered the contrary evidence,
then the Court ‘must’ defer to the ALJ’s interpretation of that evidence so long as it was
a reasonable interpretation.” Bahler-Kuhle v. Berryhill, No. 16 CV 50370, 2018 WL
587148, at *4 (N.D. Ill. Jan. 29, 2018). Here, the Court cannot say that the ALJ’s
interpretation was unreasonable because the ALJ relied on the opinion of a medical
expert at the hearing. Milliken v. Astrue, 397 F. App'x 218, 221 (7th Cir. 2010)(upholding
ALJ’s RFC where a medical expert effectively translated claimant’s mental limitations
into an RFC assessment.) Thus, Claimant’s argument amounts to nothing more than
asking the Court to reweigh the evidence, something the Court will not do.
Finally, Claimant maintains that the ALJ should have re-contacted Dr.
Jayachandran for clarification. (Mot. at 7.) The ALJ however, was not required to do so
“because the record contained adequate information for the ALJ to render a decision.”
Britt v. Berryhill, 889 F.3d 422, 427 (7th Cir. 2018)(citing Skinner v. Astrue, 478 F.3d
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836, 843–44 (7th Cir. 2007)). Accordingly, this Court does not find that the ALJ’s
conclusion in this respect was in error.
D. The ALJ Properly Evaluated the Medical Expert Opinion Evidence.
Claimant also argues that the ALJ’s decision to discount the opinion of Dr.
Cermerus in favor of Dr. Rozenfeld’s opinion was erroneous. The decision
to “choose between conflicting medical reports rests with the ALJ.” Griffith v. Sullivan,
916 F.2d 715 (7th Cir. 1990); Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004).
The decision however, must be supported by substantial evidence. Books v. Chater, 91
F.3d 972, 979 (7th Cir. 1996).
In this case, the ALJ concluded that Dr. Rozenfeld’s more recent testimony was
more consistent with the evidence. (R. 19-20.) Claimant maintains that the ALJ’s
reasoning is inadequate because she “never specifically explained why Dr. Rozenfeld’s
opinion was more consistent.” (Mot. at 9.) The Court disagrees. The ALJ discounted Dr.
Cermerus’ opinion because it relied heavily on Claimant’s subjective complaints. See
Bates v. Colvin, 736 F.3d 1093, 1100 (7th Cir. 2013)( noting that an ALJ can discount a
physician’s opinion when it is based on claimant’s subjective complaints.) A review of
the transcript confirms that the doctor’s opinion was largely based on testimony. Dr.
Cermerus stated that Claimant had marked limitations in social interactions and
concentration, persistence, or pace. (R. 69.) When asked by the ALJ to reconcile his
opinion with the IEP, the doctor stated Claimant “probably did have people helping him
out”. (R. 70-71.) Yet, there was no evidence of one-on-one help in the IEP. (R. 111-12.)
Likewise, when the ALJ asked him to justify his conclusion in light of Claimant’s
completion of the certified nursing assistant training, the ALJ responded by stating “my
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guess probably…[they gave him accommodations].” (R. 71.) The ALJ concluded that
Dr. Rozenfeld’s opinion was more consistent with the evidence given Claimant’s
sporadic treatment history, lack of current medications, and good history of social
interaction. (R. 19.) Faced with conflicting opinions, it was reasonable for the ALJ to
choose the opinion that was better supported by the record. See Cadenhead v. Astrue,
No. 05 C 3929, 2010 WL 5846326, at *18 (N.D. Ill. Mar. 5, 2010)(affirming the ALJ’s
decision to rely on one medical expert over the opinions of an examining source and
second medical expert.)
Claimant also argues that the ALJ failed to develop the record because the ALJ
did not obtain test scores form the junior college or vocational records form the high
school. First, with respect to the vocational records, there is no evidence that they exist,
outside of the testimony of Claimant’s mother. See Binion v. Shalala, 13 F.3d 243, 246
(7th Cir. 1994)(“Mere conjecture or speculation that additional evidence might have
been obtained in the case is insufficient to warrant a remand.”) Second, with respect to
the test scores, the Claimant does not explain why the ALJ should have requested the
records. The ALJ stated that the tests were not evaluations and provided little, if any,
insight into Claimant’s limitations. (R. 104.); Nelms v. Astrue, 553 F.3d 1093, 1098 (7th
Cir. 2009)( Courts “generally upholds the reasoned judgment of the Commissioner on
how much evidence to gather.”) Therefore, the ALJ’s evaluation of the medical opinion
evidence was not erroneous.
E. The ALJ’s Credibility Determination was Not Patently Wrong.
Claimant next objects to the ALJ’s evaluation of his subjective complaints. An
ALJ is always required to “build a logical bridge between the evidence and his
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conclusion” that a claimant's testimony is not credible. Villano v. Astrue, 556 F.3d 558,
562 (7th Cir.2009). The ALJ should consider the entire case record and give specific
reasons for the weight given to an individual’s statements. SSR 96–7p; See also
Schmidt v. Barnhart, 395 F.3d 737, 746 (7th Cir.2005)(stating that an ALJ must
“articulate specific reasons for discounting a claimant’s testimony as being less than
credible”). Factors that should be considered include the objective medical evidence,
the claimant’s daily activities, allegations of pain, aggravating factors, the types of
treatment received, any medications taken, and functional limitations. Prochaska v.
Barnhart, 454 F.3d 731, 738 (7th Cir.2006); See also 20 C.F.R. § 404.1529(c)(3); SSR
96–7p. A court is obligated to review the ALJ’s credibility decision with deference
because “the ALJ is in the best position to determine the credibility of witnesses.” Craft,
539 F.3d at 678. A reviewing court must be mindful that reversal on this ground is
appropriate only if the credibility determination is so lacking in explanation or support
that it is “patently wrong.” Elder v. Astrue, 529 F.3d 408, 413–14 (7th Cir. 2008).
Claimant maintains that he cannot work due to his anxiety disorder, learning
disability, and depression. These conditions, he testified, impair his ability to follow
directions. (R. 42.) Consequently, he becomes frustrated and “shuts down” because he
is afraid of what people will say. (R. 42-43.) Relying on SSR 96-7p 8 , the ALJ concluded
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Claimant objects to the ALJ’s use of 96-7p and insists that 16-3p applies. The ALJ issued her decision
on December 19, 2014. Since the ALJ issued her decision in this case, the SSA has issued new guidance
on how the agency assesses the effects of a claimant’s alleged symptoms. SSR 96-7p and its focus on
“credibility” has been superseded by SSR 16-3p in order to “clarify that subjective symptom evaluation is
not an examination of the individual’s character.” See SSR 16-3p, 2016 WL 1119029, at *1. However, the
SSA recently clarified that Courts should only apply SSR 16-3 to determinations made on or after March
28, 2016. See Notice of Social Security Ruling, 82 Fed. Reg. 49462 n.27 (Oct. 25, 2017). Here, we
continue to assess the ALJ’s findings under SSR 96-7p, which notably is not “patently inconsistent” with
SSR 16-3. Shered v. Berryhill, 16 CV 50382, 2018 WL 1993393, at *5 (N.D. Ill. April 27, 2018)(internal
quotations omitted).
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that Claimant’s allegations were not so severe that they rendered him unable to work.
(R. 20.) The ALJ found that Claimant’s activities of daily living, conservative treatment,
inconsistent testimony, and non-compliance with medication weighed against his
testimony. (R. 21.) Based on the record before the Court, we agree that the ALJ
properly followed the requirements of SSR 96-7p. McBride v. Berryhill, No. 16 CV 9487,
2018 WL 3344406, at *6 (N.D. Ill. July 9, 2018).
Claimant argues, in part, that the ALJ “overstated the significance of [Claimant’s]
failure to pursue emergency room treatment” given the cost of such services. (Mot. at
14.) This error was harmless as the ALJ’s reasoning was based also “on the absence of
evidence of serious functional limitations due to… episodes of decompensation.”
Kittelson v. Astrue, 362 F. App'x 553, 558 (7th Cir. 2010). Claimant also argues that the
ALJ impermissibly relied on his activities of daily living. Although the ALJ cited some of
Claimant’s activities of daily living in discrediting some of the alleged limitations, the ALJ
did not improperly equate the ability to complete such activities with the ability to
engage in full-time work. In fact, the ALJ acknowledged that Claimant’s activities were
“not conclusive proof that he is able to sustain full-time work” and instead noted that
they weighed against the credibility of his allegations. (R. 20.) The ALJ discussed how
Claimant’s activities of daily living, which included social interactions at school,
conflicted with his reports of severely limiting anxiety. Further, the ALJ did not place an
undue weight on Claimant’s daily activities as he provided other valid reasons for his
adverse credibility determination. Schreiber v. Colvin, 519 F. App'x 951, 961 (7th Cir.
2013)(noting that even though the ALJ analysis of “activities of daily living was not
ideal, the ALJ provided a sufficient basis for his adverse credibility determination.”) For
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example, the ALJ discounted Claimant’s testimony, in part, because treatment has been
routine and conservative, involving medication and sporadic visits to therapy. See
Hofslien v. Barnhart, 172 F. App'x 116, 120 (7th Cir. 2006)(noting that the type of
treatment that a claimant receives is a factor which may be considered in determining
disability.); Tonelli v. Colvin, No. 13-3041, 2016 WL 777880, at *4 (C.D. Ill. Feb. 29,
2016).
The ALJ also discounted Claimant’s testimony because he admitted he was not
taking any medication at the time of the supplemental hearing. (R. 21.) An ALJ may
consider evidence of non-compliance with medical advice when assessing credibility.
McBride, 2018 WL 3344406, at *6 (citing SSR 96-7p). Claimant did not explain why he
was not on medications, and treatment notes indicate he denied side-effects. (R. 856.)
Therefore, the ALJ’s credibility determination was not patently wrong as she provided
enough sound reasons to support her conclusions. See Halsell v. Astrue, 357
Fed.Appx. 717, 722–23 (7th Cir. 2009)( “Not all of the ALJ's reasons must be valid as
long as enough of them are.”)
Claimant also argues that the ALJ’s analysis of third party statements is flawed
because she did not discuss them separately. The ALJ found the statements to be
“partially credible” because, while they were generally consistent with those of the
Claimant, they lacked objective support from the record. (R. 21.) An ALJ, “need not
provide a written evaluation of every piece of evidence.” Rice, 384 F.3d at 371. Rather,
the ALJ need only “minimally articulate his or her justification for rejecting or accepting
specific evidence of a disability.” The Court finds that the ALJ met the low threshold in
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this case and built the request logical bridge. Consequently, Claimant’s argument that
the ALJ’s credibility determination was flawed fails.
III. Conclusion
For the foregoing reasons, Claimant’s a motion for summary judgment [6] is denied
and the Commissioner’s cross-motion for summary judgment [26] is granted.
ENTERED:
__________________________
Michael T. Mason
United States Magistrate Judge
Dated: September 21, 2018
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