Nowakowski v. Social Security Administration

Filing 20

MEMORANDUM Opinion and Order: Plaintiff's motion for summary judgment is denied and the Commissioner's cross-motion for summary judgment is granted. The final decision of the Commissioner is affirmed. - Signed by the Honorable Susan E. Cox on 9/13/2017. [For further details see order] Mailed notice (np, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CONSTANCE M. NOWAKOWSKI,
Plaintiff,
No. 16 C 7904
v.
Magistrate Judge Susan E. Cox
1

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Constance Nowakowski (“Plaintiff”) filed this action seeking reversal of the
final decision of the Commissioner of Social Security denying her application for Disability
Insurance Benefits (“DIB”) under Title II of the Social Security Act (“the Act”). Plaintiff has
filed a brief, which this Court will construe as a motion for summary judgment [dkt. 9], and the
Commissioner has filed a cross-motion for summary judgment [dkt. 17]. For the reasons set forth
below, Plaintiff’s motion for summary judgment is denied, and the Commissioner’s decision is
affirmed.
BACKGROUND
I.

Procedural History
Plaintiff filed an application for DIB on May 31, 2012, alleging a disability onset date of

December 17, 2010, due to fibromyalgia, chronic low back pain, spinal fusion, severe migraines,
anxiety, and insomnia. (R. 14, 88, 154–57). Her claim was denied initially on October 22, 2012
and again upon reconsideration on April 12, 2013. (R. 14, 78–97). Plaintiff timely requested a
hearing before an Administrative Law Judge (“ALJ”) on June 11, 2013. (R. 14). On November
1

Nancy A. Berryhill is substituted for her predecessor, Carolyn W. Colvin, pursuant to Federal Rule of Civil
Procedure 25(d).

19, 2014, Plaintiff, represented by counsel, appeared and testified before ALJ Sylke Merchan.
(R. 68–75). The ALJ also heard testimony from vocational expert (“VE”) Richard Fisher. (Id.).
On January 26, 2015, the ALJ issued a written decision denying Plaintiff’s application for DIB.
(R. 14–26.) The Appeals Council (“AC”) denied review on June 2, 2016, thereby rendering the
ALJ’s decision as the final decision of the agency. (R. 1–7); Herron v. Shalala, 19 F.3d 329, 332
(7th Cir. 1994).
II.

Medical Evidence
On January 3, 2012, Plaintiff presented to pain management specialist Yuliya Kin-

Kartsimas, M.D., for her complaints of low back pain. (R. 305–06). Plaintiff reported low back
pain which radiated to the left buttock, down to the leg and into the anterior thigh. (R. 305). She
described the pain as sharp, burning, shooting, throbbing, and stabbing, and indicated that it was
moderate to severe. (Id.). Plaintiff stated that her pain was aggravated by reaching, bending,
sitting, lifting, and standing, and her pain was relieved by lying down, application of heat, and
medications. (Id.). She indicated that her mood had been good, her pain was controlled with
scheduled medications, and that she was doing well overall. (Id.). Upon physical examination,
Dr. Kin-Kartsimas noted normal muscle tone and bulk, 5/5 strength, and limited range of motion
of the lumbar and cervical spines. (R. 306). Dr. Kin-Kartsimas also noted mild lumbar
paravertebral tenderness and an antalgic heel-to-toe gait. (Id.). Dr. Kin-Kartsimas assessed:
disorders

of

the

sacrum;

unspecified

arthropathy

involving

other

specified

sites;

postlaminectomy syndrome of the lumbar spine; and unspecified musculoskeletal disorders and
symptoms referable to the neck. (Id.).
Plaintiff continued to treat with Dr. Kin-Kartsimas approximately once a month through
July 10, 2012. (R. 289–306). Physical examinations throughout this time period consistently

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produced findings of full motor strength, normal muscle tone and bulk, and grossly intact
sensation. (R. 290, 294, 296, 298, 300, 303, 306). In May and June 2012, Dr. Kin-Kartsimas
noted that Plaintiff was unable to sit comfortably in her chair and was constantly changing
positions. (R. 291, 294). On June 12, 2012, Plaintiff reported an exacerbation of her pain and
requested injections. (R. 291). On physical examination, Dr. Kin-Kartsimas noted “significant
limitation in the range of motion” of the lumbar spine in all planes due to pain and discomfort,
and tenderness to palpation over the CV joints 1 through 5, as well as over the left trapezius
muscle and illeolumbar ligaments. (R. 291–92). Dr. Kin-Kartsimas administered injections, and
Plaintiff reported immediate relief. (R. 292). When Plaintiff returned the next month, she
reported some improvement after the injection, although Dr. Kin-Kartsimas did note severe
tenderness in the lumbar and cervical paraspinal muscles. (R. 289–90).
On October 1, 2012, Plaintiff attended a psychological consultation with Gregory
Rudolph, Ph.D. (R. 315–18). Plaintiff exhibited a somber, depressed mood and her affect was
anxious. (R. 317). However, she exhibited no thought disturbances and she was polite, alert and
oriented, with clear thought processes. (R. 316–17). She displayed appropriate memory for
recent and remote events and she displayed an adequate fund of information. (R. 317). She also
displayed good ability to “use judgment and reasoning skills.” (R. 315, 317). Dr. Rudolph
diagnosed depression NOS and anxiety disorder, and assigned a GAF score of 45. 2

2

The GAF includes a scale ranging from 0–100, and indicates a “clinician’s judgment of the individual’s overall
level of functioning.” American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 32
(4th ed. Text Rev. 2000) (hereinafter DSM–IV). A GAF score of 41-50 indicates serious symptoms (e.g., suicidal
ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school
functioning (e.g., no friends, unable to keep a job). Id. at 34. The Court notes that the fifth edition of the DSM,
published in 2013, has abandoned the GAF scale because of “its conceptual lack of clarity . . . and questionable
psychometrics in routine practice.” American Psychiatric Association, Diagnostic and Statistical Manual of Mental
Disorders 16 (5th ed. 2013); see Williams v. Colvin, 757 F.3d 610, 613 (7th Cir. 2014) (recognizing that the
American Psychiatric Association abandoned the GAF scale after 2012). DSM-IV at 34.

3

On October 13, 2012, Plaintiff underwent a consultative internal medicine examination
by Dr. Julia Kogan, M.D. (R. 320–28). Plaintiff reported a history of fibromyalgia and low back
pain status post lumbar discectomy and fusion. (R. 321). She stated that she had difficulty
bending, could not sit for more than two hours, and could not vacuum or mop. (Id.). Plaintiff
reported constant low back pain, which she rated between 6–9/10. (Id.). She stated that she was
on chronic narcotic pain medications and seeing a pain management specialist. (Id.). Upon
physical examination, Plaintiff could ambulate 50 feet independently and she had no difficulty
tandem walking, standing and walking on her heels and toes, squatting and arising, arising from
a seated position, or getting on and off the examination table. (R. 323, 327–28). No paraspinal
muscle spasm or muscle atrophy was observed, and straight leg-raising was negative bilaterally.
(Id.). Plaintiff had full range of motion in her cervical and lumbar spines, full range of motion in
the lower extremities, and normal range of motion in the upper extremities. (R. 323–27).
Although Plaintiff stated she had no strength in her hands, Dr. Kogan documented that grip
strength was 5/5 in both hands. (R. 327). Sensation and reflexes were normal throughout all
extremities. (Id.). However, Dr. Kogan did note several positive fibromyalgia trigger points on
examination. (R. 320). Dr. Kogan assessed fibromyalgia and post-laminectomy syndrome, and
concluded that Plaintiff had no difficulty in standing, bending, sitting, and hearing, and minimal
difficulty lifting and carrying. (R. 328). Plaintiff additionally had no difficulty with speech, gait,
or fine manipulation and handling of small objects. (Id.).
On October 17, 2012, state agency psychological consultant Thomas Low, Ph.D., opined
that Plaintiff’s mental impairment was not severe and that it resulted in only mild restriction of
activities of daily living, mild difficulties in maintaining social functioning, and mild difficulties
in maintaining concentration, persistence, or pace. (R. 81–83). Dr. Low noted that Plaintiff was

4

not receiving any treatment for depression and was merely taking Xanax for anxiety provided by
her primary care provider. (R. 83). He also noted Plaintiff exhibited normal mental status except
for a depressed mood when she presented for the consultative examination and he further noted
that her activities of daily living were functional, except for limitations imposed by her physical
condition. (Id.). Dr. Low’s opinion was affirmed at the reconsideration level by state agency
psychological consultant Russell Taylor, Ph.D. (R. 93–94).
State agency medical consultant Francis Vincent, M.D., opined on October 19, 2012, that
Plaintiff retained the RFC to lift and/or carry 20 pounds occasionally and 10 pounds frequently,
stand and/or walk for six hours in an eight-hour workday, and sit for six hours in an eight-hour
workday. (R. 84). State agency medical consultant James Hinchen, M.D., affirmed Dr. Vincent’s
RFC assessment at the reconsideration level on April 11, 2013. (R. 95).
The record also contains treatment notes from Plaintiff’s primary care physician, Dr.
Gopal Bhalala, M.D. from June 25, 2012 through May 21, 2015. (R. 335–414, 432–34).
Unfortunately, Dr. Bhalala’s handwritten notes from June 2012 through March 2013 are
illegible. (R. 335–55). In May 2013, however, Dr. Bhalala’s physical examination findings
included normal gait, normal sacroiliac joint mobility bilaterally, no vertebral spine tenderness,
no paraspinal tenderness, and no sacroiliac joint tenderness. (R. 375). Straight leg-raising test
was negative bilaterally, and motor function and sensation in the lower extremities were normal.
(Id.). Dr. Bhalala assessed “unspecified backache,” depressive disorder NOS, and fibromyalgia.
(Id.). The majority of the subsequent treatment records are filled with inconsistencies. For
example, the physical examination notes pertaining to inspection and palpation of the lumbar
spine and lower back read as follows:
INSPECTION: significant muscle spasm. PALPATION: Vertebral spine
tenderness, paraspinal tenderness, SI joint tenderness, paraspinal spasm, no
5

vertebral spine tenderness, no paraspinal tenderness, vertebral spine tenderness,
paraspinal tenderness, SI joint tenderness, paraspinal spasm, no vertebral spine
tenderness, no paraspinal tenderness.
(See, e.g., R. 392, 395, 399, 402, 405, 408, 411, 432). Significantly, under “general examination”
at each of these visits, Dr. Bhalala specifically states, “Back: no CVA tenderness.” (See, e.g., R.
393, 396, 400, 402, 405, 408, 411, 432). Furthermore, at each examination Plaintiff’s gait, motor
functioning, sensory examinations, and reflexes were found to be normal. (R. 380–413, 432–33).
Dr. Bhalala’s treatment notes reflect little more than the routine filling of prescriptions.
An MRI of the lumbar spine performed in November 2013 revealed a satisfactory
postoperative status at L5-S1 with no signs of complication. (R. 430). Moderate degenerative
facet hypertrophic changes at L4-L5 with a prominent bulging disc were noted, but there was no
evidence of significant spinal canal compromise or nerve root encroachment. (Id). Similarly, an
MRI of the cervical spine performed in December 2013 revealed only degenerative changes and
no evidence of significant spinal canal compromise or nerve root encroachment. (R. 428).
III.

Plaintiff’s Testimony
Plaintiff testified that on a normal day she wakes up and experiences pain. (R. 47). She

takes Tylenol or ibuprofen and her other pain medications. (Id.). She wears a Fentanyl patch
every day, and is also prescribed Soma, Norco, Xanax, Ambien, and Zomig. (Id.). She
occasionally walks her dogs across the street if her husband or son is unable to help. (R. 47–48).
Some days she does laundry, although her husband has to carry the laundry up the stairs for her.
(R. 48). She no longer makes dinner every day like she used to. (Id.). Now, she cooks about
twice a week, and usually by the time she is done she is in too much pain to eat and has to go lay
down. (Id.). Some days she works on the bills on the computer, but cannot sit for long periods of
time, so she usually has to get up or go and lay down. (R. 49). She has to use a heating pad every

6

day. (Id.). Plaintiff drives herself locally, but requires someone else to drive her longer distances.
(R. 41). She cannot grocery shop by herself. (Id.). Plaintiff reported two recent trips to Germany
to visit her oldest son. (R. 50–51). She occasionally goes to visit her mother in Dallas. (R. 52).
When her mother had hip surgery one year earlier, Plaintiff stayed with her mother for two
weeks to help out with the recovery. (Id.). Plaintiff goes to church about every six weeks. (R.
53). She used to love to garden, but cannot do that anymore. (Id.).
Throughout the day, Plaintiff has to alternate sitting, standing, and lying down. (R. 54).
On a typically night, she gets at most four hours of uninterrupted sleep. (Id.). Plaintiff stated that
the Ambien does not help with sleep, but her doctor is afraid to put her on anything stronger. (R.
55). Plaintiff testified that the pain in her back is constant, and feels like there is a knife there.
(Id.). If she sits or stands too long, she gets a burning sensation between the shoulder blades.
(Id.). Her knees and wrists constantly hurt. (Id.). She wears braces on her wrists, which provide
relief. (R. 56). With her pain medications, her pain level on an average day is around a six or
seven. (Id.).
IV.

ALJ Decision
On January 26, 2015, the ALJ issued a written determination denying Plaintiff’s DIB

application. (R. 14–26). At step one, the ALJ determined that Plaintiff had not engaged in
substantial gainful activity since December 17, 2010, the alleged disability onset date. (R. 16). At
step two, the ALJ found that Plaintiff had the severe impairments of status post lumbar
discectomy and fusion, degenerative disc disease, asthma, and arthralgia. (Id.). He also
determined Plaintiff’s fibromyalgia, depression, and anxiety to be non-severe impairments. (R.
17). At step three, the ALJ determined that Plaintiff did not have an impairment or combination
of impairments that met or medically equaled the severity of one of the listed impairments of 20

7

C.F.R. Part 404, Subpart P, App’x 1. (R. 18). The ALJ then assessed Plaintiff’s Residual
Functional Capacity (RFC) 3 and determined that Plaintiff retained the RFC to perform light work
as defined in 20 C.F.R. § 404.1567(b), except that she could never climb ladders, ropes, or
scaffolds, and she could only occasionally balance, kneel, stoop, crouch, crawl, or climb ramps
or stairs. (R. 19). At step four, the ALJ concluded that Plaintiff could perform her past relevant
work as an administrative clerk or general clerk, leading to a finding that she is not disabled
under the Act. (R. 25).
STANDARD OF REVIEW
The ALJ’s decision must be upheld if it follows the administrative procedure for
determining whether a plaintiff is disabled as set forth in the Act, 20 C.F.R. §§ 404.1520(a) and
416.920(a), if it is supported by substantial evidence, and if it is free of legal error. 42 U.S.C. §
405(g). Substantial evidence is “relevant evidence that a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389 (1971). Although we
review the ALJ’s decision deferentially, he must nevertheless build a “logical bridge” between
the evidence and her conclusion. Moore v. Colvin, 743 F.3d 1118, 1121 (7th Cir. 2014). A
“minimal[ ] articulat[ion] of her justification” is enough. Berger v. Astrue, 516 F.3d 539, 545
(7th Cir. 2008).
ANALYSIS
Plaintiff appears to raise three primary arguments on appeal. 4 First, Plaintiff contends that
the ALJ erred in determining that she did not meet or medically equal Listing 1.04. Second,
3

Before proceeding from step three to step four, the ALJ assesses a claimant’s residual functional capacity. 20
C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). “The RFC is the maximum that a claimant can still do despite his mental
and physical limitations.” Craft v. Astrue, 539 F.3d 668, 675–76 (7th Cir. 2008).
4 The Court’s review in this case is hindered by Plaintiff’s failure to develop and support her arguments. Only five
of the ten pages of Plaintiff’s brief are dedicated to her actual allegations of error on appeal. [Dkt. 9, at 6–10].
Moreover, this substantive portion of her brief cites to no statutes and only two cases, both of which are from the
Fourth Circuit. [Dkt. 9, at 9]. Plaintiff points to no medical evidence from the record in support of her arguments,

8

Plaintiff asserts that the ALJ improperly assessed her subjective symptom statements and
credibility. Finally, Plaintiff argues that the ALJ’s RFC assessment is not supported by
substantial evidence, namely because the ALJ improperly considered her testimony, improperly
assessed the medical opinion evidence, and failed to accord controlling weight to the opinion of
her treating physician. The Court addresses each of these issues in turn.
A.

The ALJ Did Not Err at Step Three
Plaintiff’s first argument—that the ALJ improperly found that Plaintiff’s conditions did

not meet or medically equal Listing 1.04—is a non-starter. It is axiomatic that Plaintiff bears the
burden of proving that she meets or equals all of the criteria of a listing. Filus v. Astrue, 694 F.3d
863, 868 (7th Cir. 2012). Plaintiff asserts that she met or equaled the criteria of Listing 1.04 for
disorders of the spine, and yet she offers no substantive argument or medical evidence in support
of this claim. “In order to show that reversal is in order, a claimant is required to identify the
medical evidence showing that he or she would have satisfied the Step 3 criteria if the ALJ had
considered the relevant issues.” Heuschmidt v. Colvin, No. 14 CV 4377, 2015 WL 7710368, at
*3 (N.D. Ill. Nov. 30, 2015). The closest Plaintiff comes to making a specific listing argument is
her assertion that, because she had spinal arachnoiditis symptoms (muscle spasms, vertebral
spine tenderness, paraspinal tenderness, and SI joint tenderness), she met Listing 1.04. However,
Listing 1.04(B) specifies that any diagnosis of spinal arachnoiditis must be “confirmed by an
operative note or pathology report of tissue biopsy, or by appropriate medically acceptable
imaging.” Plaintiff cites no such evidence. Furthermore, both of the state agency reviewing

and instead relies solely on her testimony from the administrative hearing. As the Seventh Circuit has stated, “judges
are not like pigs, hunting for truffles buried in [the record],” Gross v. Town of Cicero, Ill., 619 F.3d 697, 702 (7th
Cir. 2010); United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991), and perfunctory, undeveloped and
unsupported arguments may be deemed waived, e.g., United States v. Thornton, 642 F.3d 599, 606 (7th Cir. 2011);
United States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991).

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physicians concluded that Plaintiff did not meet or medically equal any listed impairment.
“Because no other physician contradicted these two opinions, the ALJ did not err in accepting
them.” Filus, 694 F.3d at 867 (citing Scheck v. Barnhart, 357 F.3d 697, 700 (7th Cir. 2004)
(other citation omitted)). Accordingly, Plaintiff has failed to meet her burden of showing that she
met or equaled a listing.
B.

The ALJ’s Assessment of Plaintiff’s Subjective Symptom Statements was Supported
by Substantial Evidence
Plaintiff next argues that the ALJ erred in assessing her subjective symptom statements

and credibility. The Social Security Administration determined recently that it would no longer
assess the “credibility” of a claimant’s statements, but would instead focus on determining the
“intensity and persistence of [the claimant’s] symptoms.” SSR 16-3p, at *2. “The change in
wording is meant to clarify that administrative law judges aren’t in the business of impeaching
claimants’ character; obviously administrative law judges will continue to assess the credibility
of pain assertions by applicants, especially as such assertions often cannot be either credited or
rejected on the basis of medical evidence.” Cole v. Colvin, 831 F.3d 411, 412 (7th Cir. 2016)
(emphasis in original).
The regulations describe a two-step process for evaluating a claimant’s own description
of his or her impairments. First, the ALJ “must consider whether there is an underlying
medically determinable physical or mental impairment(s) that could reasonably be expected to
produce the individual’s symptoms, such as pain.” SSR 16-3p, at *2; see also 20 C.F.R. §
416.929. “Second, once an underlying physical or mental impairment(s) that could reasonably be
expected to produce the individual's symptoms is established, we evaluate the intensity and
persistence of those symptoms to determine the extent to which the symptoms limit an
individual’s ability to perform work-related activities . . . .” SSR 16-3p, at *2.
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In evaluating the claimant’s subjective symptoms, “an ALJ must consider several factors,
including the claimant’s daily activities, [his] level of pain or symptoms, aggravating factors,
medication, treatment, and limitations, and justify the finding with specific reasons.” Villano v.
Astrue, 556 F.3d 558, 562 (7th Cir. 2009) (citations omitted); see 20 C.F.R. § 404.1529(c); SSR
16-3p. An ALJ may not discredit a claimant’s testimony about his symptoms “solely because
there is no objective medical evidence supporting it.” Villano, 556 F.3d at 562 (citing 20 C.F.R.
§ 404.1529(c)(2)); see Johnson v. Barnhart, 449 F.3d 804, 806 (7th Cir. 2006) (“The
administrative law judge cannot disbelieve [the claimant’s] testimony solely because it seems in
excess of the ‘objective’ medical testimony.”). Even if a claimant’s symptoms are not supported
directly by the medical evidence, the ALJ may not ignore circumstantial evidence, medical or
lay, which does support claimant’s credibility. Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535,
539–40 (7th Cir. 2003). Indeed, SSR 16-3p, like former SSR 96-7p, requires the ALJ to consider
“the entire case record, including the objective medical evidence; an individual’s statements
about the intensity, persistence, and limiting effects of symptoms; statements and other
information provided by medical sources and other persons; and any other relevant evidence in
the individual’s case record.” SSR 16-3p, at *4.
The Court will uphold an ALJ’s subjective symptom evaluation if the ALJ gives specific
reasons for that finding, supported by substantial evidence. Moss v. Astrue, 555 F.3d 556, 561
(7th Cir. 2009). The ALJ’s decision “must contain specific reasons for a credibility finding; the
ALJ may not simply recite the factors that are described in the regulations.” Steele v. Barnhart,
290 F.3d 936, 942 (7th Cir. 2002) (citation omitted). Although the Court will scrutinize the
ALJ’s assessment to determine whether it conveys any “fatal gaps or contradictions,” it will
“give the opinion a commonsensical reading rather than nitpicking at it.” Castile v. Astrue, 617

11

F.3d 923, 929 (7th Cir. 2010) (quotation and citation omitted). In this case, the Court finds that
the ALJ’s subjective symptom evaluation is supported by substantial evidence.
Here, the ALJ properly considered the factors set forth in 20 C.F.R. § 404.1529(c) and
provided specific and well-supported reasons for his conclusions. For example, the ALJ
considered Plaintiff’s activities of daily living, such as taking the dogs outside, cooking, doing
laundry, driving, and helping out in the garden. (R. 23). The ALJ also noted Plaintiff’s two trips
to Germany and her 2013 trip to Dallas to assist her mother in her recovery after hip surgery,
doing chores as needed. (Id.). Plaintiff suggests the ALJ overstated her activities, but the ALJ
explicitly recognized that none of Plaintiff’s activities in and of themselves equated to
performing full-time work. (Id.). What the ALJ did conclude, however, was that these activities
“do reflect more capacity that the claimant has alleged and they strongly suggest the ability to
work within the confines of the above residual functional capacity.” (Id.). The ALJ also
considered Plaintiff’s testimony that her back pain was aggravated by reaching, bending, sitting,
lifting, or standing, and factored this testimony into his RFC by limiting “the amount of bending
the claimant would have to perform and the amount of weight she would have to lift.” (R. 22).
The ALJ further considered Plaintiff’s prescription medications, noting that the more recent
treatment notes reflected prescriptions for Norco, the Fentanyl patch, Soma and Ambien as
needed, and Xanax. (R. 23). The ALJ noted the treatment notes did not contain repeated or
frequent complaints of side effects, and reasonably concluded that the lack of an increase in the
medications suggested overall effectiveness.
In addition to the factors set forth in 20 C.F.R. § 404.1529(c), the ALJ also discussed a
lack of support in the objective medical evidence for the severity of the limitations and
restrictions alleged. Although an ALJ may not discount a claimant’s pain allegations based solely

12

on a lack of supporting objective evidence, 20 C.F.R. § 404.1529(c)(2), the ALJ may consider
that factor “as probative” in assessing the claimant’s symptoms. Powers v. Apfel, 207 F.3d 431,
435 (7th Cir. 2000); see also Jones v. Astrue, 623 F.3d 1155, 1161 (7th Cir. 2010) (noting that
“discrepancies between the objective evidence and self-reports may suggest symptom
exaggeration.”). The ALJ cited to treatment records throughout the longitudinal record showing
unremarkable and essentially normal findings with regard to gait, sensation and motor function
in the extremities, and range of motion. (R. 20–21). He further relied on Dr. Kogan’s
consultative examination findings and the reports of two non-examining agency physicians, all
of which support his evaluation of Plaintiff’s symptoms. (R. 21, 23–24). Accordingly, the ALJ
did not err by taking the lack of objective evidence into consideration in evaluating Plaintiff’s
subjective symptom statements.
In sum, it is well-established that “[n]ot all of the ALJ’s reasons must be valid as long as
enough of them are.” Halsell v. Astrue, 357 F. App’x 717, 722–23 (7th Cir. 2009) (emphasis in
original). The Court is satisfied with the ALJ’s analysis and finds that the ALJ’s conclusion
regarding Plaintiff’s subjective symptom statements is supported by substantial evidence.
C.

The ALJ’s RFC Determination is Supported by Substantial Evidence
Finally, Plaintiff contends that the ALJ’s RFC assessment is not supported by substantial

evidence, namely because the ALJ improperly considered her testimony, improperly assessed the
medical opinion evidence, and failed to accord controlling weight to the opinion of her treating
physician. 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; Social Security Ruling
(“SSR”) 96-8p; Dixon v. Massanari, 270 F.3d 1171, 1178 (7th Cir. 2011). In assessing a
plaintiff’s RFC, the ALJ must consider both the medical and nonmedical evidence in the record.

13

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 Brisco
ex rel. Taylor v. Barnhart, 425 F.3d 345, 352 (7th Cir. 2005). For the reasons that follow, the
Court concludes that the ALJ’s RFC determination is supported by substantial evidence.
1.

The ALJ Properly Considered Plaintiff’s Testimony and Subjective
Symptom Statements

Within Plaintiff’s critique of the ALJ’s RFC finding, she asserts that the ALJ did not
properly consider her testimony regarding the intensity, persistence, and limiting effects of her
subjective symptoms. Specifically, Plaintiff contends that the ALJ ignored her testimony that she
has to constantly alternate between sitting, standing, and lying down while completing basic
daily activities. (R. 49, 54, 56). But the ALJ specifically acknowledged this testimony, and
adequately explained his reasons for concluding that Plaintiff’s symptoms are not as severe as
alleged. “While the law requires an ALJ to weigh all the credible evidence and make unbiased
factual findings, it does not compel an ALJ to accept wholly the claimant’s perception of a
disability.” Cass v. Shalala, 8 F.3d 552, 555 (7th Cir. 1993). Here, the ALJ discussed the
objective medical evidence, including the consistent examination findings of normal gait, intact
sensation and motor function in the extremities, and absence of CVA tenderness. (R. 20–21). The
ALJ noted that the diagnostic imaging further supported his RFC determination, as MRIs of the
lumbar and cervical spines revealed no evidence of any significant spinal canal compromise or
nerve root encroachment. (R. 21, 428–31). At the October 2012 consultative examination, Dr.
Kogan noted Plaintiff had no difficulty tandem walking, standing and walking on her toes and
heels, squatting and arising, arising from a seated position, or getting on and off the examination
table. (R. 328). The ALJ further noted the state agency medical consultant’s opinion that Plaintiff
had the capacity to work at the light exertional level was consistent with the record as a whole
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and was not contradicted by any treating source. (R. 24). Moreover, as discussed above, the
ALJ’s evaluation of Plaintiff’s subjective symptom statements was supported by substantial
evidence. Plaintiff has failed to offer a persuasive or well-developed argument to the contrary.
2.

The ALJ Properly Weighed the Medical Opinion Evidence

Plaintiff further argues that it was error for the ALJ to rely on the opinions of nonexamining state agency consultants in formulating his RFC determination. It is well-established
that “it is appropriate for an ALJ to rely on the opinions of physicians and psychologists who are
also experts in social security disability evaluation.” Flener v. Barnhart, 361 F.3d 442, 448 (7th
Cir. 2004). Here, state agency reviewing physician Dr. Vincent opined that Plaintiff could lift
and/or carry 20 pounds occasionally and 10 pounds frequently, could stand and/or walk for about
six hours in an eight-hour workday, and could sit for about six hours in an eight-hour workday.
(R. 84). This opinion was affirmed by state agency reviewing physician Dr. Hinchen at the
reconsideration level. (R. 95). The ALJ accorded substantial weight to Dr. Vincent’s opinion, as
it was consistent with the medical evidence of record and was not contradicted by any treating
source. (R. 24). Rather than citing any objective evidence that contradicts Dr. Vincent’s opinion,
Plaintiff instead refers only to her testimony about her limitations in her daily activities and her
need to constantly alternate between sitting, standing and lying down, which, as discussed above,
the ALJ appropriately considered and weighed.
Similarly, state agency psychological consultant Dr. Low opined that Plaintiff’s mental
impairment was not severe and resulted in only mild restriction of activities of daily living, and
only mild difficulties in maintaining social functioning and maintaining concentration,
persistence, or pace. (R. 82–83). This opinion was affirmed at the reconsideration level by state
agency psychological consultant Dr. Taylor. (R. 93–94). The ALJ accorded great weight to Dr.

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Low’s opinion because it was strongly supported by the objective evidence and was not
contradicted by a treating source. (R. 24). Plaintiff makes a half-hearted attempt at attacking the
ALJ’s reliance on Dr. Low’s opinion by noting that Dr. Low had never examined Plaintiff and
instead only reviewed the records. But, once again, Plaintiff has made no effort to identify any
specific evidence that contradicts Dr. Low’s opinion, and the Court is simply not persuaded that
the ALJ erred in accepting Dr. Low’s conclusions.
3.

The ALJ’s Failure to Discuss the Appropriate Weight to be Accorded to
Plaintiff’s Treating Physician was Harmless Error

Even if Plaintiff were correct that the ALJ erred when he failed to articulate the weight he
accorded to Plaintiff’s treating physician, Dr. Bhalala, any such failure would be harmless error.
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 federal regulations make it clear that an ALJ must only assign weight to opinion
evidence; it is not necessary to assign weight to every piece of medical evidence in the record.
See 20 C.F.R. § 404.1527. While the Court recognizes that the evidence establishes a lengthy
treating relationship between Plaintiff and Dr. Bhalala, Dr. Bhalala never offered an opinion
regarding Plaintiff’s functional capacities during the relevant period. For example, although Dr.
Bhalala consistently diagnosed Plaintiff with unspecified backache and fibromyalgia, his
treatment notes do not indicate whether those diagnoses would result in work-related limitations,
and he never extended his findings to an evaluation of Plaintiff’s functional capacities. The ALJ
himself addressed this deficiency in his discussion of the opinions of the state agency consultants
by noting that their opinions had not been contradicted by any treating source. (R. 24). Because
Dr. Bhalala never offered an opinion as to Plaintiff’s functional limitations, the Court is
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confident that no reasonable ALJ on remand would reach a different conclusion regarding
Plaintiff’s RFC. Accordingly, the Court finds that the ALJ’s failure to weigh Dr. Bhalala’s
opinions was harmless error.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for summary judgment is denied and the
Commissioner’s cross-motion for summary judgment is granted. The final decision of the
Commissioner is affirmed.

Entered: 9/13/2017

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

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