Booker v. Colvin

Filing 17

MEMORANDUM Opinion and Order Signed by the Honorable Maria Valdez on 4/20/2018: Mailed notice (lp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TEMEKA BOOKER,
Plaintiff,
v.
NANCY A. BERRYHILL, Deputy
Commissioner of Operations of
the Social Security
Administration,1

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No. 16 C 8292
Magistrate Judge
Maria Valdez

Defendant.
MEMORANDUM OPINION AND ORDER
This action was brought under 42 U.S.C. § 405(g) to review the final decision
of the Commissioner of the Social Security Administration (“Commissioner”)
denying Plaintiff Temeka Booker’s (“Plaintiff”) claims for Disability Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Title II and Title
XVI of the Social Security Act (the “Act”). The parties have consented to the
jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).
For the reasons that follow, Plaintiff’s motion for summary judgment [Doc. No. 10]
is denied and the Commissioner’s cross-motion for summary judgment [Doc. No. 13]
is granted.
Nancy A. Berryhill was the Acting Commissioner of Social Security beginning January 23,
2017. Her acting status ended as a matter of law pursuant to the Federal Vacancies Reform
Act, 5 U.S.C. § 3345 et seq., and she returned to her position of record, that of Deputy
Commissioner for Operations, in November 2017. In accordance with the agency's Order of
Succession, Berryhill continues to lead the SSA as it awaits the nomination and
confirmation of a Commissioner. https://www.ssa.gov/agency/commissioner.html (last
visited Apr. 5, 2018).
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BACKGROUND
I.

Procedural History
Plaintiff filed her applications for DIB and SSI on February 10, 2014, alleging

a disability onset date of July 15, 2010, due to depression, mood disorder, and
bipolar disorder. (R. 233–245, 288.) Her application was denied initially and again
upon reconsideration. (R. 129–178.) Plaintiff requested a hearing before an
Administrative Law Judge (“ALJ”) which was held on February 22, 2016. (R. 34–
93.) Plaintiff appeared at the hearing represented by an attorney and offered
testimony. (Id.) A vocational expert also appeared and offered testimony. (Id.) On
March 16, 2016, the ALJ issued an unfavorable decision finding Plaintiff was not
disabled. (R. 14–33.) The Appeals Council (“AC”) denied review on June 21, 2016,
leaving the ALJ’s decision as the final decision of the Commissioner and, therefore,
reviewable by the District Court under 42 U.S.C. § 405(g). See Haynes v. Barnhart,
416 F.3d 621, 626 (7th Cir. 2005); Herron v. Shalala, 19 F.3d 329, 332 (7th Cir.
1994); (R. 1–6.)
II.

ALJ Decision
On March 16, 2016, the ALJ issued an unfavorable written determination

finding Plaintiff was not disabled. (R. 16–42.) At step one, the ALJ determined that
Plaintiff had not engaged in substantial gainful activity since July 15, 2010, her
alleged onset date and that she met the insured status requirements of the Act
through June 30, 2017. (R. 19.) At step two, the ALJ found that Plaintiff suffered
from severe impairments of degenerative disc disease of the lumbar spine and mood

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disorder. (Id.) At step three, the ALJ determined that Plaintiff did not have an
impairment or combination of impairments that meet or medical equaled the
severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix
1 (20 C.F.R. 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926), (R.
20.)
Before step four, the ALJ found that Plaintiff had the residual functional
capacity (“RFC”) to perform work at a light exertional level, subject to several
limitations.2 At step four, the ALJ concluded that Plaintiff is unable to perform her
past relevant work. (R. 25.) At step five, based on Plaintiff’s age, education, work
experience, and RFC, the ALJ determined there were jobs that existed in significant
numbers in the national economy that Plaintiff could have performed. (R. 25–27.)
Because of this determination, the ALJ found that Plaintiff is not disabled under
the Act. (R. 27.)

At this stage, the ALJ determined Plaintiff could perform light work, but:
needs to alternate her position between sitting, standing, and walking for no
more than five minutes out of every hour. While do so, she would not need to
be off tasks. [Plaintiff] can occasionally climb ramps and stairs, and she can
occasionally stop, kneel, balance, crouch and crawl, but she can never climb
ladders, ropes or scaffolds. [Plaintiff] is further limited to simple, routine
tasks, work involving no more that simple decision-making, no more that
occasional and minor changes in the work setting, and work requiring the
exercise of only simple judgment. She is further precluded from work
involving direct public service, in person or over the phone, although
[Plaintiff] can tolerate brief and superficial interaction with the public which
is incidental to her primary job duties. She is unable to work in crowded,
hectic environments. [Plaintiff] can tolerate brief and superficial interaction
with supervisors and co-workers, but is not to engage in tandem tasks.
(R. 21–22.)
2

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DISCUSSION
III.

ALJ Standard

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

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IV.

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

Commissioner of Social Security as to any fact, if supported by substantial evidence,
shall be conclusive.” 42 U.S.C. § 405(g). Judicial review of the ALJ's decision is
limited to determining whether the ALJ's findings are supported by substantial
evidence or based upon legal error. Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir.
2000); Stevenson v. Chater, 105 F.3d 1151, 1153 (7th Cir. 1997). Substantial
evidence is “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); Skinner v.
Astrue, 478 F.3d 836, 841 (7th Cir. 2007). This Court may not substitute its
judgment for that of the Commissioner by reevaluating facts, reweighing evidence,
resolving conflicts in evidence, or deciding questions of credibility. Skinner, 478 F.3d
at 841; see also Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008) (holding that the
ALJ's decision must be affirmed even if “reasonable minds could differ” as long as
“the decision is adequately supported.”) (internal citation omitted).
The ALJ is not required to address “every piece of evidence or testimony in
the record, [but] the ALJ's analysis must provide some glimpse into the reasoning
behind her decision to deny benefits.” Zurawski v. Halter, 245 F.3d 881, 889 (7th
Cir. 2001). In cases where the ALJ denies benefits to a plaintiff, “he must build an
accurate and logical bridge from the evidence to [her] conclusion.” Clifford, 227 F.3d
at 872. The ALJ must at least minimally articulate the “analysis of the evidence
with enough detail and clarity to permit meaningful appellate review.” Briscoe ex

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rel. Taylor v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005); Murphy v. Astrue, 496
F.3d 630, 634 (7th Cir. 2007) (“An ALJ has a duty to fully develop the record before
drawing any conclusions . . . and must adequately articulate his analysis so that we
can follow his reasoning. . . .”); see Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir.
2005).
We review the ALJ’s decision but we play an “extremely limited” role. Elder,
529 F.3d at 413. Where conflicting evidence would allow reasonable minds to differ,
the responsibility for determining whether a plaintiff is disabled falls upon the
Commissioner, not the court. See Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir.
1990). However, an ALJ may not “select and discuss only that evidence that favors
his ultimate conclusion,” but must instead consider all relevant evidence. Herron v.
Shalala, 19 F.3d 329, 333 (7th Cir. 1994).
V.

Analysis
Plaintiff alleges that the ALJ’s decision should be remanded because: (1) he

engaged in impermissible “cherry-picking”; (2) his RFC failed to account for all of
Plaintiff’s limitations; and (3) his credibility determination was flawed. The Court
disagrees for the reasons that follow.
A. Cherry-Picking
To begin, Plaintiff argues that the ALJ failed to build a complete record
because he did not re-contact her treating mental health professionals. An ALJ is
only required to re-contact doctors if the evidence is inadequate to allow the ALJ to
determine whether the applicant is disabled. 20 C.F.R. § 404.1512(e). Here, the ALJ

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relied on several of Plaintiff’s physical examinations, the opinion of the State
Agency consultant Dr. Joseph Cools, Ph.D., and her activities of daily living
including driving, caring for a minor child, and beginning employment one month
before the administrative hearing when making his findings. Thus, there is no
evidence that the record was inadequate to allow the ALJ to make a disability
determination and Plaintiff’s argument otherwise is rejected.
Second, Plaintiff contends that ALJ formulated Plaintiff’s RFC based solely
off of her physical limitations (as opposed to her physical and mental impairments)
which amounted to impermissible cherry-picking. While ALJs are prohibited from
cherry-picking, see Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010) (“An ALJ has
the obligation to consider all relevant . . . evidence and cannot simply cherry-pick
facts that support a finding of non-disability while ignoring evidence that points to a
disability finding.”), they are not required to discuss every piece of evidence in the
record in favor of their determinations. See McKinzey v. Astrue, 641 F.3d 884, 891
(7th Cir. 2011) (“[g]enerally speaking, an ALJ's adequate discussion of the issues
need not contain a complete written evaluation of every piece of evidence”) (internal
quotation marks and citation omitted). Furthermore, “[i]t is axiomatic that the
claimant bears the burden of supplying adequate records and evidence to prove
their claim of disability.” See Scheck v. Barnhart, 357 F.3d 697, 702 (7th Cir. 2004)
Contrary to Plaintiff’s argument, the ALJ articulated his consideration of Dr.
Cools’ mental examination findings in his decision. (R. 23–24.) Dr. Cools reviewed
Plaintiff’s record including her treatment in 2010 with Dr. John Chi Yuan Lui,

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M.D., for depression and anxiety and in 2014 with Dr. Anjum Khatoon, M.D., for
depression. (R. 118–21.)3 Based off these records, Dr. Cools opined Plaintiff would
have moderate mental limitations in her ability to understand, remember, and
carry out detailed instructions, engage in social interaction, and perform more than
simple tasks in a routine schedule. (R. 128.) The ALJ then adopted the findings of
Dr. Cools when formulating his mental RFC determination. See Scott v. Sullivan,
898 F.2d 519, 524 (7th Cir. 1990) (“the ALJ may rely upon the physician's opinion to
determine eligibility”). The Court finds that the ALJ did not engage in
impermissible cherry-picking when he crafted his RFC determination because he
did consider Plaintiff’s mental impairments and accounted for her limitations based,
in part, on the findings of an acceptable medical source. It follows that his
determination is supported by substantial evidence.
B. RFC
Next, Plaintiff complains that the ALJ’s RFC assessment failed to account for
limitations arising from her mental impairments. “The RFC is an assessment of
what work-related activities the claimant can perform despite her limitations.”
Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004); see 20 C.F.R. §
404.1545(a)(1) (“Your residual functional capacity is the most you can still do

In her brief Plaintiff points to several records over the course of her treatment which are
signed by a Licensed Clinical Social Worker or Advanced Nurse Practioner. (R. 460, 512.)
These sources are “other medical source” under the Regulations. 20 C.F.R. §§
404.1513(a),(d). The findings of “other medical sources” are not accorded the same deference
as opinions provided by “acceptable medical sources”. Importantly, only “acceptable medical
sources” can establish the existence of a medically determinable impairment and be
treating sources whose opinions may be entitled to controlling weight. See 20 C.F.R. §§
404.1513(a), (d)(1).
3

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despite your limitations.”). In determining an individual's RFC, the ALJ must
consider all of her limitations which arise from medically determinable
impairments, even those that are not severe. SSR 96-8p; Villano v. Astrue, 556 F.3d
558, 563 (7th Cir. 2009). “[R]egardless of how many symptoms an individual alleges,
or how genuine the individual's complaints may appear to be, the existence of a
medically determinable physical or mental impairment cannot be established in the
absence of objective medical abnormalities; i.e., medical signs and laboratory
findings.” See SSR 96-4p, at *1.
Specifically, Plaintiff alleges that the ALJ should have concluded that she
experienced marked, as opposed to moderate, difficulties in social functioning and
concentration, persistence, or pace. Plaintiff points to several medical records
which, according to her, the ALJ failed to consider, including the fact that she
lacked motivation, experienced panic in social situations, and can no longer read
due to an inability to concentrate.
As an initial issue, Plaintiff does not point to any evidence from an acceptable
medical source which states that this evidence would amount to marked difficulties
in social functioning or concentration. Rather, it is merely Plaintiff’s position that
this evidence should translate to a more restrictive RFC. This is not an argument
which results in remandable error. See Lopez v. Astrue, 807 F. Supp. 2d 750, 763
(N.D. Ill. 2011) (stating a claimant’s counsel must not play doctor).
More to the point, the ALJ did consider the entirety of Plaintiff’s record. In
particular, the ALJ relied on the findings of State Agency consultant Dr. Cools who,

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after examining all the evidence Plaintiff cites, determined that she would have
only a moderate limitation in social functioning and concentration, persistence, and
pace. (R. 128.) The ALJ adopted this opinion when formulating his RFC and
explained that it was an “accurate representation of [Plaintiff’s] mental [RFC].” (R.
24.) The fact that Plaintiff may have weighed this evidence differently does not
amount to a remandable error under the applicable rules and law. See Herr v.
Sullivan, 912 F.2d 178, 181 (7th Cir. 1990) (stating that where conflicting evidence
would allow reasonable minds to differ, the responsibility for determining whether a
plaintiff is disabled falls upon the Commissioner).
C. Credibility
Finally, Plaintiff next argues that the ALJ improperly assessed her subjective
symptom statements and credibility.4 An ALJ’s credibility determination is granted
substantial deference by a reviewing court unless it is “patently wrong” and not
supported by the record. Schmidt v. Astrue, 496 F.3d 833, 843 (7th Cir. 2007);
Powers v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000); see also Elder, 529 F.3d at 413
(holding that in assessing the credibility finding, courts do not review the medical
In 2016, the Commissioner rescinded SSR 96-7p and issued SSR 16-3p, eliminating the
use of the term “credibility” from the symptom evaluation process, but clarifying that the
factors to be weighed in that process remain the same. See SSR 16-3p, 2016 WL 1119029, at
*1, *7 (March 16, 2016). The ruling makes clear that ALJs “aren’t in the business of
impeaching claimants’ character,” but does not alter their duty 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). However, the SSA recently clarified that SSR 16-3p only
applies when ALJs “make determinations on or after March 28, 2016,” and that SSR 96-7p
governs cases decided before the aforementioned date. See Notice of Social Security Ruling,
82 Fed. Reg. 49462 n.27 (Oct. 25, 2017). The ALJ issued his opinion on March 25, 2014. (R.
57.) Therefore, the ALJ properly applied SSR 96-7p. Nonetheless, SSR 16-3p will apply on
remand. See Notice of Social Security Ruling, 82 Fed. Reg. 49462 n.27 (Oct. 25, 2017).
4

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evidence de novo but “merely examine whether the ALJ’s determination was
reasoned and supported”). An ALJ must give specific reasons for discrediting a
claimant’s testimony, and “[t]hose reasons must be supported by record evidence
and must be ‘sufficiently specific to make clear to the individual and to any
subsequent reviewers the weight the adjudicator gave to the individual’s statements
and the reasons for that weight.’ ” Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535,
539–40 (7th Cir. 2003) (quoting Zurawski, 245 F.3d at 887–88); see SSR 96-7p, 1996
WL 374186, at *4 (S.S.A. 1996).
The lack of objective evidence is not by itself reason to find a claimant’s
testimony to be incredible. See Schmidt v. Barnhart, 395 F.3d 737, 746–47 (7th Cir.
2005). When evaluating a claimant’s credibility, the ALJ must also consider “(1) the
claimant’s daily activity; (2) the duration, frequency, and intensity of pain; (3) the
precipitating and aggravating factors; (4) dosage, effectiveness, and side effects of
medication; and (5) functional restrictions.” Scheck, 357 F.3d at 703; see also SSR
96-7p at *3. An ALJ’s “failure to adequately explain his or her credibility finding . . .
is grounds for reversal.” Minnick v. Colvin, 775 F.3d 929, 937 (7th Cir. 2015).
Here, Plaintiff raises several challenges to the ALJ’s adverse credibility
determination, arguing that the ALJ improperly assessed her credibility based upon
“cherry picking and unsupportable speculation.” (Pl.’s Br. at 12.)
First, Plaintiff claims that the ALJ impermissibly equated her ability to
perform activities of daily living to an ability to perform full-time work. See Hill v.
Colvin, 807 F.3d 862, 869 (7th Cir. 2015) (“[W]e have repeatedly warned against

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equating the activities of daily living with those of a full-time job.”) (citing Bjornson
v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012). The ALJ noted that Plaintiff attended
school, attended Bible study, cared for her minor child, drove forty-five minutes
each way to work, and was employed as Zumba instructor.5 Standing alone, this
explanation may not pass muster under the Seventh Circuit’s ruling, but here, the
ALJ provided additional rationale for his credibility decision. Plaintiff’s activities of
daily living were merely a portion of his finding. See Prochaska v. Barnhart, 454
F.3d 731, 738 (7th Cir.2006) (stating that an ALJ must consider the entire case
record when determining a claimant's credibility including the claimant's daily
activities and limitations) (citation omitted). Accordingly, we find that no error
occurred at this stage.
In a similar argument, Plaintiff alleges that the ALJ placed undue reliance
on her position as a data-entry worker, equating it to an ability to perform full-time
work, despite the fact that she had just begun the job at the time of her hearing and
was already experience difficulty performing her job functions. But once again, the
ALJ was allowed to weigh this fact as a part of his total analysis and apply it to his
credibility determination. See Berger v. Astrue, 516 F.3d 539, 546 (7th Cir. 2008)
(“In addition, [the claimant] continued to work as a carpenter, albeit on a part-time
basis. Although the diminished number of hours per week indicated that [the
claimant] was not at his best, the fact that he could perform some work cuts against
his claim that he was totally disabled.”).
Plaintiff takes issue with this finding stating that she no longer teaches Zumba. Plaintiff’s
testimony was that, as of the date of her administrative hearing, she was still employed by
a fitness club, but had not taught a class for two months. (R. 41.)
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Next, Plaintiff claims that the ALJ did not articulate the volatility of her
Global Assessment Functioning (“GAF”)6 scores over the course of her treatment,
and instead only cited instances when it was at its highest point. To the contrary,
the ALJ noted that Plaintiff’s GAF scores ranged from 40 to 60 and tended to
correspond to her homelessness. (R. 23.)7 He also explained that she continued to
participate in bible study and work as a fitness trainer despite her low scores which
also undermined her credibility. This is not an instance of cherry-picking, but
rather the ALJ simply weighing the evidence before making a determination. Elder,
529 F.3d at 413 (holding that the ALJ's decision must be affirmed even if
“reasonable minds could differ” as long as “the decision is adequately supported.”)
Lastly, Plaintiff complains that the ALJ used her non-compliance with
medication and lack of treatment against her. An ALJ cannot discount a claimant’s
allegations of pain based on a failure to seek medical treatment without at least
discussing the reasons given by the claimant for not seeking such treatment. See
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 51–60 indicates moderate symptoms (e.g., flat affect and circumstantial
speech, occasional panic attacks) or moderate difficulty in social, occupational, or school
functioning (e.g., few friends, conflicts with peers or coworkers). Id. at 34. 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. 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).
7 Plaintiff states that it is “unclear” how Plaintiff’s homelessness would be used to
undermine her allegations rather than support them. This argument is simply a
misreading of the ALJ’s decision. In it he states that her condition was worsened by her
homelessness, but still the record did not support a finding of disability. (R. 23.)
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Beardsley v. Colvin, 758 F.3d 834, 840 (7th Cir. 2014) (“But the ALJ may not draw
any inferences ‘about a claimant's condition from his failure [to seek treatment]
unless the ALJ has explored the claimant's explanations as to the lack of medical
care.’ ”) (quoting Craft v. Astrue, 539 F.3d 668, 679 (7th Cir. 2008)); SSR 96-7p, 1996
WL 374186, at *7.
Here, the ALJ stated that Plaintiff’s 2012 records indicated that she “was not
consistent in taking medications or attending appointments.” (R. 22.) At the
hearing, the ALJ questioned Plaintiff about her bouts of homelessness which
occurred in 2013 and 2015. While he acknowledged her homelessness would
contribute to infrequent treatment or medication, he failed to explore her reasoning
for her 2012 non-compliance. (R. 475.) But, even if the ALJ incorrectly evaluated
Plaintiff’s lack of treatment, remand is not proper in this case because the Court
need only disturb an ALJ’s credibility determination where it is “patently wrong.”
Schmidt, 496 F.3d at 843. Here, the ALJ’s credibility determination is otherwise
supported by Plaintiff’s work history, activities of daily living, and lack of objective
medical evidence. Accordingly, the Court affirms the ALJ’s credibly determination.

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CONCLUSION
For the foregoing reasons, Plaintiff’s motion for summary judgment [Doc. No.
10] is denied and the Commissioner’s cross-motion for summary judgment [Doc. No.
13] is granted. Affirmed.

SO ORDERED.

ENTERED:

DATE:

___________________________
HON. MARIA VALDEZ
United States Magistrate Judge

April 20, 2018

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