Malone v. Berryhill

Filing 39

OPINION AND ORDER. The Court affirms the ALJ's decision. The Court grants the Commissioner's motion for summary judgment 28 and enters judgment in favor of the Commissioner and against Malone. Civil case terminated. Signed by the Honorable Sara L. Ellis on 12/12/2018. Mailed notice(rj, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MARVIN MALONE,
Plaintiff,
v.
NANCY A. BERRYHILL, Deputy
Commissioner of Operations, Social Security
Administration,
Defendant.

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No. 17 C 1953
Judge Sara L. Ellis

OPINION AND ORDER
Plaintiff Marvin Malone seeks to overturn the final decision of the Commissioner of
Social Security (the “Commissioner”) denying his application for supplemental security income
(“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. § 1381a. The Commissioner has
filed a motion for summary judgment, asking the Court to uphold the decision. The Court finds
that the Administrative Law Judge (“ALJ”) did not err in finding that Malone is not disabled and
affirms the ALJ’s decision.
BACKGROUND
I.

Malone’s Background
In December 2003, Malone fractured his left femur and tibia in a car accident, requiring

surgery. AR 462; 528–552. Shortly thereafter, in March 2004, Malone had surgery on his left
knee, which improved his range of motion. AR 523–54. After these surgeries, he underwent
physical therapy to further increase his range of motion, strengthen his left leg, and improve his
gait. AR 526–27; 559–569, 572–73, 575–78, 592–602. Malone also dislocated his left shoulder
in April 2005. AR 676, 681.

In 2008, Malone saw a doctor complaining of seizures. AR 701. He had an EEG, which
indicated a mild diffuse slow wave abnormality. AR 702. In August and September 2009,
Malone complained to doctors of shoulder pain after having a seizure in July of that year. AR
703. He then began physical therapy for his right shoulder at Schwab Rehabilitation Hospital.
AR 704–05, 709–18. He reported to his physical therapist that he helped at a family business,
sometimes up to five days a week, where he did some lifting, including of boxes weighing up to
forty pounds. AR 703. During one physical therapy session in October 2009, Malone had a
staring spell seizure, later reporting he had another seizure at home that evening. AR 706.
Malone reported he had not taken his seizure medication at the time. AR 703. In December
2011, Malone presented to Ashland Primary Care (“Ashland”), part of the Access Community
Health Network, reporting that he had experienced a seizure the week before and had run out of
his seizure medication . AR 487. The doctor instructed Malone not to miss his medicine. AR
487. In April 2012, Malone again reported having a seizure in the past week, at which time the
doctor increased the dose of his seizure medication. AR 490.
In September 2012, when he presented to Ashland to have disability paperwork
completed, he reported having two seizures in August and one the previous week and that he
experienced both convulsive and staring spell seizures. AR 497. The doctor referred Malone to
a neurologist. AR 498. Also during this visit, the Ashland doctor recorded a two-centimeter
difference in the length of his legs. AR 498. Malone reported a limited range of motion in his
shoulders when reaching overhead and behind his back, but he had normal strength levels. AR
498. Malone also complained of pain in his hip and left leg, and the doctor referred him to a
podiatrist for these issues. AR 498.

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In February 2013, Malone reported his last seizure occurred “a few months ago,” and that
he was taking his medicine regularly and drinking occasionally. AR 516. In February 2014,
Malone visited a different practice, Chicago Family Chicago Lawn, where he related that his
seizure medicine was giving him “good results” and that he had had approximately four to five
convulsive seizures over the past eight years. AR 603. At this visit, he also reported using hard
liquor approximately twice a week. AR 604. In April 2014, Malone returned to Ashland and
reported he had a staring spell the prior week. AR 622. In a follow-up visit the following week,
however, he acknowledged he had taken less of his seizure medicine than prescribed each day.
AR 625–26. In August 2014, Malone saw a neurologist, relating that he first had a seizure in
February 2005. AR 688. He acknowledged that the medicine, which he took erratically,
generally controlled his seizures but that he still sometimes experienced staring spell seizures
where it took him a minute or two to recover his speech. AR 688. In a follow-up appointment
with the neurologist in December 2014, Malone reported he had not had any seizures in the
interim. AR 695. The neurologist noted that an EEG from September 2014 suggested Malone
had an increased risk of seizures. AR 697. In December 2014, a doctor at Ashland advised
Malone to decrease his alcohol intake because of elevated liver enzymes. AR 658. In January
2015, Malone acknowledged drinking “way more than 5–6 shots of tequila on most weekends,”
but he denied daily alcohol use. AR 662. He indicated that he had not had a convulsive seizure
in “quite some time,” but that once over the past summer, he had a staring spell. AR 662. In
June 2015, Malone returned to the neurologist, where he reported having a seizure in May 2015
when under a lot of stress. AR 719.
Dr. Daneen Woodard, one of the doctors Malone had seen at Ashland, completed a
physical capacity questionnaire on February 9, 2015. AR 665–69. She indicated Malone’s

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prognosis for his seizure disorder was good, and that for his left hip pain was fair. AR 665. She
represented that his last partial seizure occurred a month ago, with his last convulsive seizure
several years before and stress one of the triggers of seizures. AR 665–66. Dr. Woodard noted
that Malone had sharp left hip pain and on and off shoulder pain. AR 665. She judged Malone
capable of low stress jobs, with his pain interfering with his ability to pay attention and
concentrate regularly (i.e. during 20-33% of an eight-hour workday). AR 666. Dr. Woodard
judged that Malone could walk for one block without rest, sit two hours before needing to get up
and a total of two hours in an eight-hour workday, and stand for forty-five minutes at a time and
less than two hours during an eight-hour workday. AR 666–67. She concluded that Malone
would need frequent breaks of between ten and fifteen minutes each. AR 667. She also
estimated that Malone would likely miss more than four days a month because of his
impairments. AR 668.
In his disability application, Malone indicated that he last worked in a full-time capacity
in 2000, assembling and packaging merchandise at a warehouse. AR 209, 405. In a function
report completed October 25, 2012, Malone claimed a limited ability to work because he did not
know when he would have a seizure and his hip and legs sometimes slowed him down. AR 416.
Malone indicated that he usually spent his days watching television or reading, sometimes going
for short walks as well, usually of a block or two before needing to rest. AR 417, 421. He
claimed issues with walking, kneeling, and his memory and concentration. AR 421. Malone
could iron, do laundry, and vacuum. AR 418. But he did not drive because he did not know
when he would have a seizure, AR 419, and his mother helped him take care of his kids when
they came over for this reason as well, AR 417. Malone also claimed that his medication made
him sleepy. AR 417. His prescription records showed that he refilled his seizure medicine

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approximately every two months, even though each time he received only a thirty-day supply.
AR 456–57. He had problems reaching overhead because he did not have the entirety of his
range of motion back after shoulder surgery. AR 425. Malone claimed he could not sit for at
least two hours without having to stand or stretch. AR 426.
Three family members filled out seizure description forms in October 2012. John Guise,
his brother-in-law, stated that Malone suffered more than one seizure a month, with Guise having
witnessed about seven or eight of them. AR 428. He noted that Malone did not receive advance
warning of a seizure and had been injured during his seizures. AR 428. Estelle Malone, his
mother, stated Malone had one or less seizure per month, and that she had witnessed all of
Malone’s seizures. AR 429. She also reported Malone lost consciousness for about five or ten
minutes and when he came to he did not remember what happened. AR 429. Tamsey Malone,
his sister, noted witnessing seizures that year in July and October, estimating Malone suffered
one or less seizure a month. AR 430.
II.

Disability Claim and Hearing Testimony
On August 24, 2012, Malone filed an application for SSI, alleging disability beginning on

February 1, 2005. AR 13. Malone’s application was denied initially on December 4, 2012, and
on reconsideration on March 18, 2013. Id. Malone requested a hearing on April 26, 2013. Id.
He appeared before an ALJ for a hearing on August 25, 2015. 1 Counsel represented Malone at
the hearing, where Malone and Gary Paul Wilhelm, a vocational expert, testified. AR 13.
A.

Malone’s Testimony

Malone, born on July 5, 1977, was thirty-eight at the time of the ALJ hearing and lived
with his mother. AR 40. He testified that he had previously received social security disability
Malone also appeared for a hearing before a different ALJ on February 12, 2015. AR 108–177. Before
that ALJ could issue an opinion, she passed away. AR 355. Malone’s case was reassigned to a new ALJ,
who held another hearing on August 25, 2015, and rendered a decision thereafter.

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benefits for a closed period, beginning in 2003. 2 AR 41. He stated that in recent years, he had
worked part-time stocking shelves and working the cash register at neighborhood stores, AR 41–
44, as a shoe salesman from 2000 to 2004, AR 45, and in warehouse assembly prior to 2000, AR
45. Malone testified he had basic computer skills and a high school education. AR 49–50.
Malone stated that his seizures were the biggest barrier to his returning to work, with
stress contributing to his seizures. AR 50, 73. He had two big seizures in May and June 2015,
AR 51, and experienced little, staring spell seizures two or three times a month, AR 54. When
he had a seizure, Malone said it took him several hours to get back to his normal self. AR 55.
At the time of the hearing, he was taking his seizure medication as prescribed, but he admitted to
previously taking it inconsistently. AR 74–75. Malone acknowledged drinking approximately
three or four glasses of alcohol once a week. AR 61–62. He claimed he had limited range of
motion because he dislocated his shoulder during a seizure. AR 56. This, he said, kept him from
lifting heavy objects and reaching overhead. AR 56–57. His hip, though, bothered him the
most, AR 60, with Malone claiming he could barely walk about half of the days in a month and
often walked with a makeshift cane, AR 61, 67–68. Malone claimed he could typically work for
between forty-five minutes to an hour and a half before needing to take a break. AR 66. He
believed he could sit for between an hour and a half and two before needing a break. AR 72.
B.

Vocational Expert Testimony

Gary Wilhelm, a vocational expert, used Malone’s work as a shoe salesman as a baseline,
which qualified as semi-skilled work with a light physical demand. AR 76. Wilhelm opined that
a person with Malone’s limitations could not perform this work because it required overhead
lifting. AR 77. But Wilhelm testified that Malone could perform work as a checker cashier at a
The record is not entirely clear with respect to Malone’s prior receipt of disability benefits. His counsel
represented in a pre-hearing memorandum to the ALJ that Malone had previously applied for SSI on July
7, 2004, received a denial on November 4, 2004, and did not appeal. AR 462.
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store, AR 77, a school bus monitor, AR 78, and an usher, AR 78. Looking only at sedentary
work with Malone’s limitations, Wilhelm opined that Malone could work in inside sales work or
telemarketing, AR 78, or as an appointment clerk or maintenance scheduler, AR 79. Wilhelm
noted that Malone’s seizures would affect his ability to perform any of this work on a case-bycase or employer-by-employer basis, precluding him from competitive work. AR 80.
III.

The ALJ’s Decision
On September 1, 2015, the ALJ issued a written decision denying Malone SSI benefits.

AR 10–23. Following the five-step analysis used by the Social Security Administration to
evaluate disability, the ALJ found at step one that Malone had not engaged in substantial gainful
activity since August 24, 2012, the date he applied for SSI. AR 15. The ALJ then proceeded to
step two, concluding that Malone had the following severe impairments: a seizure disorder, a
history of bilateral shoulder dislocation, and a hip injury and surgery. AR 15. At step three, the
ALJ found that the severity of Malone’s impairments did not meet or equal any of the listed
impairments in 20 C.F.R. Part 404, Subpart 4, Appendix 1. AR 15–16. The ALJ considered
Malone’s seizures under Listing 11.02 and 11.03, for convulsive and non-convulsive epilepsy
respectively, and found Malone did not meet their requirements, noting that when Malone took
his medication, he did not experience convulsive seizures more than once a month and nonconvulsive seizures more than once a week. AR 16.
After reviewing the record, the ALJ concluded that Malone had the residual functional
capacity (“RFC”) to perform light work, with the following restrictions: lifting and carrying ten
pounds frequently and twenty pounds occasionally; standing and walking for approximately six
hours of an eight-hour workday, and sitting for about six hours of an eight-hour workday, with
normal breaks; occasional overhead reaching bilaterally; no overhead lifting or climbing of

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ladders, ropes, or scaffolds; and no exposure to hazards, such as dangerous machinery or
unprotected heights. AR 16. In reaching this conclusion, the ALJ did not find Malone’s
statements about the intensity, persistence, and limiting effects of his symptoms entirely credible.
AR 17. The ALJ reviewed all of Malone’s medical records in reaching his RFC determination.
AR 18–21. He noted that the record did not establish current treatment or even current,
persistent symptoms related to Malone’s left leg and bilateral shoulder injuries, relying on the
remoteness of the injuries and the fact that Malone only complained of related pain and
demonstrated he had physical limitations as a result in one examination between December 2011
and June 2015. Id. As for Malone’s seizures, the ALJ found that Malone’s seizures coincided
with times when he did not take his medicine as prescribed, noting also that Malone continued to
drink alcohol even though his doctors cautioned against this. AR 18. The ALJ also found the
evidence reflected that Malone’s seizures had decreased over time. The ALJ took into
consideration the fact that Malone walked into the hearing without difficulty and appeared to sit
comfortably during it, in addition to the fact that Malone had held some part-time jobs. Id.
While making clear Malone’s actions at the hearing were not dispositive, such evidence
considered in combination with the remaining record suggested to the ALJ that Malone’s
limitations were somewhat exaggerated. Id. The ALJ gave slight, not significant, weight to Dr.
Woodard’s opinion, noting that even though she was a treating source, Malone’s medical records
and the evidence did not support Dr. Woodard’s evaluation of the extent of Malone’s
impairment. AR 21. The ALJ concluded that instead of providing an objective assessment, Dr.
Woodard’s opinion “appears to be a sympathetic assessment intended to convince the [ALJ] to
award the claimant disability benefits.” AR 21. The ALJ also did not give significant weight to
Malone’s family members’ reports of his seizures, noting inconsistencies among them and with

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the record, including Malone’s own reports. ALJ 21. The ALJ instead gave greater weight to
the state agency consultants’ opinions, though he gave Malone’s statements the benefit of the
doubt and concluded that Malone was more limited than the consultants opined. AR 22.
Based on these findings and the RFC, the ALJ found at step four that Malone could not
perform his past work, which included working as a retail shoe sales person, because the
overhead lifting restrictions would keep him from such a job. AR 22. Then, at step five, the
ALJ concluded that Malone was not disabled because he could perform a number of jobs
available in the national economy, specifically as a cashier, school bus monitor, or usher. AR
22–23.
The Appeals Council denied review on January 11, 2017, AR 1–6, making the ALJ’s
decision the final decision of the Commissioner. Malone now seeks judicial review of the ALJ’s
decision.
LEGAL STANDARD
I.

Standard of Review
In reviewing the denial of disability benefits, the Court “will uphold the Commissioner’s

final decision if the ALJ applied the correct legal standards and supported her decision with
substantial evidence.” Bates v. Colvin, 736 F.3d 1093, 1097 (7th Cir. 2013). 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, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971)
(citation omitted) (internal quotation marks omitted). Although the Court reviews the entire
record, it does not displace the ALJ’s judgment by reweighing facts or making independent
credibility determinations. Beardsley v. Colvin, 758 F.3d 834, 836–37 (7th Cir. 2014). But
reversal and remand may be required if the ALJ committed an error of law or the decision is

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based on serious factual mistakes or omissions. Id. at 837. The Court also looks to “whether the
ALJ built an ‘accurate and logical bridge’ from the evidence to her conclusion that the claimant
is not disabled.” Simila v. Astrue, 573 F.3d 503, 513 (7th Cir. 2009) (quoting Craft v. Astrue,
539 F.3d 668, 673 (7th Cir. 2008)). “[H]e need not provide a complete written evaluation of
every piece of testimony and evidence,” Shideler v. Astrue, 688 F.3d 306, 310 (7th Cir. 2012)
(quoting Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005)), but “[i]f a decision ‘lacks
evidentiary support or is so poorly articulated as to prevent meaningful review,’ a remand is
required,” Kastner v. Astrue, 697 F.3d 642, 646 (7th Cir. 2012) (quoting Steele v. Barnhart, 290
F.3d 936, 940 (7th Cir. 2002)).
II.

Disability Standard
To qualify for DIB or SSI, a claimant must show that she is disabled, i.e. that she is

unable 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 12 months.” 42 U.S.C.
§ 423(d)(1)(A); Weatherbee v. Astrue, 649 F.3d 565, 568 (7th Cir. 2011). To determine whether
a claimant is disabled, the Social Security Administration uses a five-step sequential analysis. 20
C.F.R. § 404.1520; Kastner, 697 F.3d at 646. At step one, the ALJ determines whether the
claimant has engaged in substantial gainful activity during the claimed period of disability. 20
C.F.R. § 404.1520(a)(4)(i). At step two, the ALJ considers whether the claimant’s physical or
mental impairment is severe and meets the twelve-month durational requirement. 20 C.F.R.
§ 404.1520(a)(4)(ii). At step three, the ALJ determines whether the claimant’s impairment(s)
meet or equal a listed impairment in the Social Security regulations, precluding substantial
gainful activity. 20 C.F.R. § 404.1520(a)(4)(iii); 20 C.F.R. Pt. 404, Subpt. P, App. 1. If the

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claimant’s impairment(s) meet or medically equal a listing, the individual is considered disabled;
if a listing is not met, the analysis continues to step four. 20 C.F.R. § 404.1520(a)(4)(iii). At
step four, the ALJ assesses the claimant’s RFC and ability to engage in past work. 20 C.F.R.
§ 404.1520(a)(4)(iv). If the claimant can engage in past relevant work, he is not disabled. Id. If
he cannot, the ALJ proceeds to step five, in which the ALJ determines whether a substantial
number of jobs exist that the claimant can perform in light of his RFC, age, education, and work
experience. 20 C.F.R. § 404.1520(a)(4)(v). An individual is not disabled if he can engage in
other work. Id. The claimant bears the burden of proof on steps one through four, while the
burden shifts to the government at the fifth step. Weatherbee, 649 F.3d at 569.
ANALYSIS
In seeking to overturn the ALJ’s decision, Malone argues that (1) the ALJ erred in
evaluating the opinion of Malone’s treating physician, Dr. Woodard; (2) the ALJ did not
properly analyze Malone’s family members’ reports concerning his seizures; (3) the ALJ
improperly discredited Malone’s testimony concerning his symptoms; and (4) the evidence does
not support the ALJ’s RFC assessment. The Court addresses each of these contentions in turn.
I.

Evaluation of the Treating Physician’s Opinion
First, Malone claims that the ALJ failed to accord proper weight to the opinion of Dr.

Woodard, Malone’s treating physician, and did not provide sufficient reasons for rejecting that
opinion concerning Malone’s functioning. The ALJ must give a treating physician’s opinion
“controlling weight” if it is “well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence” in the record.
20 C.F.R. § 416.927(c)(2). 3 The ALJ must support his conclusion about the weight given to a
The regulations concerning the evaluation of opinion evidence were amended for claims filed after
March 27, 2017. But the parties agree that, because Malone filed his claim before March 27, 2017, the
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treating physician’s opinion with “good reasons,” id., and if he does not afford the opinion
controlling weight, “the regulations require the ALJ to consider the length, nature, and extent of
the treatment relationship, frequency of examination, the physician’s specialty, the types of tests
performed, and the consistency and supportability of the physician’s opinion.” Moss v. Astrue,
555 F.3d 556, 561 (7th Cir. 2009).
In this case, Dr. Woodard opined that Malone’s symptoms would interfere regularly with
his ability to pay attention and concentrate on simple work tasks and that he needed a low-stress
job to prevent seizures. AR 666. She further stated that Malone would miss more than four days
of work because of his impairments. The ALJ gave only slight weight to Dr. Woodard’s
opinion, determining that the record, including Dr. Woodard’s own treatment notes, did not
support Dr. Woodard’s evaluation of the extent of Malone’s impairment. AR 21. Instead, the
ALJ considered her opinion to be “a sympathetic assessment intended to convince the [ALJ] to
award [Malone] disability benefits, not an objective evaluation of [Malone’s] capabilities.” Id.
Specifically, the ALJ noted that Malone’s treatment notes only showed one complaint of hip or
bilateral shoulder pain, made during a September 2012 appointment for filling out disability
paperwork. AR 21. And the ALJ did not find Malone’s physical examinations corroborated Dr.
Woodard’s opinion because they typically did not include musculoskeletal evaluations or
otherwise fell within normal limits. Id. Finally, the ALJ compared Dr. Woodard’s opinion
against the neurologist’s examinations, which did not suggest any pain in or disuse of Malone’s
arms or leg. Id. Having reviewed the record, the Court concludes that the ALJ did not commit
reversible error in giving Dr. Woodard’s opinion slight weight where her opinion did not have

treating physician rule applies to his claim. See Gerstner v. Berryhill, 879 F.3d 257, 261 (7th Cir. 2018)
(noting that the treating physician rule applies to claims filed before March 27, 2017).

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support in the record. See 20 C.F.R. § 416.927(c)(4) (“Generally, the more consistent a medical
opinion is with the record as a whole, the more weight we will give to that medical opinion.”).
But Malone has several specific complaints about the ALJ’s treatment of Dr. Woodard’s
opinion. First, he argues that the ALJ did not discuss Dr. Woodard’s opinions related to his
seizures. The Court acknowledges that the ALJ did not specifically discuss Malone’s seizures in
his evaluation of the weight to accord to Dr. Woodard’s opinion. See AR 21. But the ALJ stated
that the record evidence did not support “the extreme degree of impairment [Dr. Woodard]
described,” AR 21, which, with respect to any restrictions she found based on his seizures, must
be considered in light of the ALJ’s extensive discussion of how the alleged severity of Malone’s
seizures did not match the record evidence. See AR 18–21. The ALJ did not need to repeat this
analysis in discussing the weight he attached to Dr. Woodard’s opinion. See Curvin v. Colvin,
778 F.3d 645, 650 (7th Cir. 2015) (finding that an ALJ need not repeat a discussion that “appears
elsewhere in the decision” where doing so “would be redundant”); Orlando v. Heckler, 776 F.2d
209, 213 (7th Cir. 1985) (“[W]e examine the administrative law judge’s opinion as a whole to
ascertain whether he considered all of the relevant evidence, made the required determinations,
and gave supporting reasons for his decisions.”).
Next, Malone complains that the ALJ failed to consider that Dr. Woodard belonged to a
practice that treated Malone over the course of many years, with Dr. Woodard having access to
the entirety of his medical records from that practice. Although the ALJ noted that Dr. Woodard
qualified as a treating source, he did not explicitly discuss the length, nature, and extent of her
treatment relationship or the frequency of examination. Consequently, an argument could be
made that he failed to sufficiently account for the factors prescribed for evaluating the weight to
be given to a physician’s opinion. See, e.g., Campbell v. Astrue, 627 F.3d 299, 308 (7th Cir.

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2010) (remanding case where ALJ did not explain the checklist of factors in determining the
weight to be given to a treating physician’s opinion). But here, the Court finds the ALJ’s failure
to explicitly discuss these other factors harmless, where the ALJ discussed Ashland’s treatment
of Malone in detail, including in recounting the medical evidence in the record that undermined
Dr. Woodard’s opinion. See Schrieber v. Colvin, 519 F. App’x 951, 959 (7th Cir. 2013)
(“[W]hile the ALJ did not explicitly weigh each factor in discussing Dr. Belford’s opinion, his
decision makes clear that he was aware of and considered many of the factors, including Dr.
Belford’s treatment relationship with Schreiber, the consistency of her opinion with the record as
a whole, and the supportability of her opinion.”); Henke v. Astrue, 498 F. App’x 636, 640 n.3
(7th Cir. 2012) (“The ALJ did not explicitly weigh every factor while discussing her decision to
reject Dr. Preciado’s reports, but she did note the lack of medical evidence supporting Dr.
Preciado’s opinion, and its inconsistency with the rest of the record. This is enough.” (citations
omitted)).
Malone also argues that the ALJ provided only speculation in concluding that Dr.
Woodard offered her opinion out of sympathy. But the ALJ properly could consider “the biases
that a treating physician may bring to the disability evaluation.” Dixon v. Massanari, 270 F.3d
1171, 1177 (7th Cir. 2001); see also Stephens v. Heckler, 766 F.2d 284, 289 (7th Cir. 1985)
(“The patient’s regular physician may want to do a favor for a friend and client, and so the
treating physician may too quickly find disability. The regular physician also may lack an
appreciation of how one case compares with other related cases.”). Here, Dr. Woodard did not
provide details or explanations for several of her opinions, instead only checking certain boxes
on a pre-printed form. 4 See Dixon, 270 F.3d at 1177 (noting that in rejecting treating physician’s
The ALJ does not appear to have discounted Dr. Woodard’s opinion because it was provided in response
to solicitation from Malone’s counsel. See Punzio v. Astrue, 630 F.3d 704, 712 (7th Cir. 2011) (“[T]he

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opinion, ALJ took into account the fact that the physician did not elaborate on the bases for her
opinions provided on a pre-typed form). Moreover, any speculation about Dr. Woodard’s
intentions is irrelevant in this case because the ALJ’s evaluation of Dr. Woodard’s opinion has a
basis in substantial record evidence.
Finally, Malone argues that instead of discounting the only treating source opinion, the
ALJ should have questioned Dr. Woodard further regarding the inconsistencies between her RFC
assessment and the medical record. But because substantial evidence existed in the record to
support the ALJ’s decision, the ALJ did not need to do so. See Skinner v. Astrue, 478 F.3d 836,
843–44 (7th Cir. 2007) (ALJ need not obtain further information from doctor where the record
includes sufficient information to render a decision); Nelms v. Astrue, 553 F.3d 1093, 1098 (7th
Cir. 2009) (“This court generally upholds the reasoned judgment of the Commissioner on how
much evidence to gather, even when the claimant lacks representation.”). Because the record did
not support the extent of the limitations Dr. Woodard indicated, the ALJ could give only slight
weight to Dr. Woodard’s opinion without recontacting her for additional evidence. See Simila,
573 F.3d at 516–17 (“An ALJ is entitled to evaluate the evidence and explanations that support a
medical source’s findings. And she need not recontact the source every time she undertakes such
an evaluation, but only if . . . ‘the medical support is not readily discernable.’” (quoting Barnett
v. Barnhart, 381 F.3d 664, 669 (7th Cir. 2004)). Therefore, the Court finds that the ALJ did not
err in assigning Dr. Woodard’s opinion only slight weight.

fact that relevant evidence has been solicited by the claimant or her representative is not a sufficient
justification to belittle or ignore that evidence.”). Instead, it appears that the ALJ found Dr. Woodard’s
answers to the form contrary to the record without sufficient information to explain the inconsistencies.
See id. at 713 (noting that the ALJ must determine whether the treating source’s opinion is well supported
and consistent with the evidence in the record to ensure the doctor is not “bend[ing] over backwards to
assist a patient in obtaining benefits”).

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II.

Family Members’ Seizure Reports
Next, Malone argues that the ALJ incorrectly evaluated the three seizure reports his

family members submitted. The ALJ did not give these reports “significant weight,” noting their
inconsistencies with respect to the frequency of Malone’s seizures. AR 21. Further, the ALJ
stated that, as non-medical professionals, Malone’s family members had not established they had
the capability to evaluate the severity of Malone’s symptoms or to build a causal connection
between those symptoms and a “medically determinable impairment.” Id.
Malone first argues that any inconsistencies in his family members’ reports were trivial.
His sister and mother indicated Malone experienced one or less seizure per month and his
brother-in-law stated Malone experienced more than one seizure per month. AR 428–30. But
they also noted the number of seizures they had witnessed, with his sister and mother indicating
they had most recently witnessed seizures in July and October 2012 and his mother stating she
had witnessed all of his seizures. Id. Using his mother’s report, Malone had a seizure once
every three months, while using his brother-in-law’s statements, Malone purportedly suffered at
least six seizures over that same period. Id. And the evidence in the record also suggested that
these family members’ reports did not necessarily correlate with the number of seizures Malone
himself reported, both to doctors and to the ALJ. While Malone argues that the ALJ should have
inquired further of him about the number of seizures he suffered, this argument does not hold up:
Malone testified at the hearing that he had suffered only two seizures between January and
August 2015. AR 51. The Court therefore does not find that the ALJ overly relied on trivial
inconsistencies in the record about the frequency and intensity of Malone’s seizures in deciding
not to accord significant weight to Malone’s family members’ reports.

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Malone also argues that the ALJ should have given more weight to their evaluation of
Malone’s symptoms when he had a seizure. Malone relies on Listing 11.00(B)(1), for
neurological disorders, which provides that the ALJ should consider “non-medical evidence such
as statements [the claimant] or others made about [the claimant’s] impairments” in documenting
the claimant’s neurological disorder. 10 C.F.R. Pt. 404, Subpt. P, Appendix 1, § 11.00(B)(1).
But the ALJ found at step three that Malone’s epilepsy did not meet or medically equal the
requirements of the specific epilepsy listings, AR 16, a finding that Malone does not challenge.
Instead, he challenges the ALJ’s determination at step four not to give the seizure reports
significant weight in determining Malone’s RFC. Although the ALJ may not have accorded
these reports the weight Malone believes they deserved, the ALJ did consider them in making his
RFC determination, which is all that Listing 11.00(B)(1) requires. See Skinner, 478 F.3d at 841
(“When reviewing for substantial evidence, we do not displace the ALJ’s judgment by
reconsidering facts or evidence or making credibility determinations.”).
III.

Credibility Assessment
Malone argues that the ALJ did not properly evaluate his credibility in conducting the

symptom evaluation. The ALJ must, pursuant to Social Security Ruling 96-7p, 1996 WL
374186 (July 2, 1996), engage in a two-part analysis for symptom evaluation. 5 First, the ALJ
determines whether the claimant has an “underlying medically determinable physical or mental

The Social Security Administration rescinded SSR 96-7p and issued SSR 16-3p on March 16, 2016,
eliminating the use of the term “credibility” from the symptom evaluation process. SSR 16-3p, 2016 WL
1119029, at *1 (Mar. 16, 2016). “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). Although Malone claims that SSR 16-3p should apply, SSR 96-7p continues to govern
his case at this point. SSR 16-3p applies only to ALJ determinations made on or after March 28, 2016,
and the ALJ issued his decision in this case on September 1, 2015. See Notice of Social Security Ruling
(SSR), 82 F.R. 49462-03, 2017 WL 4790249, at 49468 n.27 (Oct. 25, 2017).

5

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impairment(s) that could reasonably be expected to produce the individual’s pain,” and, if so, the
ALJ must “evaluate the intensity, persistence, and limiting effects of the individual’s symptoms.”
SSR 96-7p, 1996 WL 374186, at *2. In doing so, he must assess the credibility of a claimant’s
statements about pain and other symptoms. Id. When these statements are not substantiated by
objective medical evidence, the ALJ must “consider the entire case record and give specific
reasons for the weight given to the individual’s statements.” Id. at *2, 4. The ALJ may not
disregard “allegations concerning the intensity and persistence of pain or other symptoms . . .
solely because they are not substantiated by objective medical evidence.” Id. at *6. But “[a]
report of negative findings from the application of medically acceptable clinical and laboratory
diagnostic techniques is one of the many factors that appropriately are to be considered in the
overall assessment of credibility.” Id. The ALJ must justify his credibility finding with “specific
reasons supported by the record,” Pepper v. Colvin, 712 F.3d 351, 367 (7th Cir. 2013), and build
“an ‘accurate and logical bridge’ between the evidence and the conclusion.” Craft, 539 F.3d at
673; see also Shideler, 688 F.3d at 311; Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009);
SSR 96-7p, 1996 WL 374186, at *4.
A credibility finding is entitled to substantial deference from a reviewing court and will
be overturned only if “patently wrong,” Pepper, 712 F.3d at 367 (quoting Craft, 539 F.3d at
678), or if the trier of fact “grounds his credibility finding in an observation or argument that is
unreasonable or unsupported,” Sims v. Barnhart, 442 F.3d 536, 538 (7th Cir. 2006). A decision
is “patently wrong” “when the ALJ’s determination lacks any explanation or support.” Elder v.
Astrue, 529 F.3d 408, 413 (7th Cir. 2008).
Malone generally argues that the ALJ failed to provide any explanation for finding
Malone’s statements concerning his symptoms “not entirely credible.” AR 17; see Martinez v.

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Astrue, 630 F.3d 693, 696 (7th Cir. 2011) (criticizing ALJ for his “perfunctory” credibility
analysis). Malone complains that the ALJ did not specify which allegations he found consistent
with the record and which he did not. But “an ALJ’s credibility findings need not specify which
statements were not credible.” Shideler, 688 F.3d at 312. In contrast to Martinez, the ALJ here
examined a considerable amount of medical and other evidence in determining Malone’s
credibility, comparing Malone’s testimony and other statements to his treatment history. AR 17–
22. This discussion provides adequate support for the ALJ’s credibility finding, and so Malone’s
complaint that the ALJ did not specifically identify which statements were not credible “does not
demonstrate that the ALJ’s credibility finding is not supported by substantial evidence.” Jens v.
Barnhart, 347 F.3d 209, 213 (7th Cir. 2003).
More specifically, Malone complains that the ALJ did not explain whether or how much
Malone’s alleged alcohol use undermined his symptoms. But the ALJ’s decision indicates that
the ALJ discounted the severity of Malone’s reported seizure symptoms based on Malone’s
continued alcohol use despite being cautioned by his doctors to avoid excessive drinking. AR
18, 20. Malone’s treatment notes, which indicate that his doctors drew a connection between his
alcohol consumption and the severity of his seizures and the prescribed treatment, support the
ALJ’s consideration of his alcohol use and its effect on the frequency of Malone’s symptoms.
See SSR 96-7p, 1996 WL 374186, at *3 (noting that in addition to objective medical evidence,
the ALJ can consider other factors in assessing the credibility of the claimant’s statements,
including aggravating factors, the frequency of pain and symptoms, and the effectiveness of
medication). The ALJ’s discussion of Malone’s alcohol use and doctors’ advice against such use
was sufficiently specific to allow this Court to assess the ALJ’s reasoning in finding this factor
undermined Malone’s reported symptoms.

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Malone also complains that the ALJ based his credibility assessment on his observations
of Malone at the hearing, where the ALJ stated that Malone could “walk into the hearing room
without difficulty, and appeared to sit comfortably during the hearing.” AR 18. If the ALJ had
based his entire opinion on such a “sit and squirm” test, the Court would agree the ALJ rendered
his decision on an improper basis. See Powers v. Apfel, 207 F.3d 431, 436 (7th Cir. 2000)
(“Many courts have condemned the ‘sit and squirm’ test, and we are uncomfortable with it as
well.”). But the ALJ specifically qualified his observations, noting that they were “not
dispositive” and that he factored them into his consideration of Malone’s claimed limitations
along with “the other evidence in the record, including [Malone’s] subjective complaints to his
treating sources.” AR 18. Malone argues further that the ALJ should not have taken into
account his ability to sit or walk because his case “is based primarily on seizures.” Doc. 18 at
17. But Malone also complained of hip and leg pain, testifying that on some days he “barely can
walk.” AR 60. The ALJ thus validly took Malone’s ability to sit and walk into account in
crafting the RFC. And because the ALJ’s observations of Malone during the hearing were only
one factor in the ALJ’s credibility determination, the Court does not find it requires remand. See
Powers, 207 F.3d at 436 (further noting that even courts that oppose the “sit and squirm” test
“endorse the validity of a hearing officer’s observations of the claimant” and that it could not
find the ALJ’s credibility determination “patently wrong” where the ALJ also considered other
factors).
Finally, Malone claims that the ALJ improperly relied on Malone’s part-time work after
his alleged date of disability to discount his subjective complaints. An ALJ may consider a
claimant’s part-time work as a factor in the credibility analysis. See 20 C.F.R. § 416.929(c)(3)(i)
(noting that a claimant’s daily activities may be considered in evaluating credibility); Berger v.

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Astrue, 516 F.3d 539, 546 (7th Cir. 2008) (“Although the diminished number of hours per week
indicated that Berger was not at his best, the fact that he could perform some work cuts against
his claim that he was totally disabled.”). Although Malone claims that the ALJ did not consider
that part-time work does not translate into full-time work, the ALJ specifically noted that
Malone’s ability to work part-time was only one factor among many in reaching the RFC
determination. AR 18 (noting that the evidence of Malone’s part-time jobs “does not prove the
claimant is able to work”). Therefore, the Court does not find that the ALJ erred in his
evaluation of Malone’s symptoms.
IV.

Support for RFC Finding
Finally, Malone argues that the ALJ did not sufficiently support his RFC finding. An

ALJ must explain how he reaches his conclusion about the RFC of a claimant and support that
conclusion with evidence from the record. See, e.g., SSR 96-8p, 1996 WL 374184, at *7 (“The
RFC assessment must include a narrative discussion describing how the evidence supports each
conclusion, citing specific medical facts . . . and nonmedical evidence[.]”); Scott v. Astrue, 647
F.3d 734, 740 (7th Cir. 2011) (“The ALJ needed to explain how she reached her conclusions
about Scott’s physical capabilities[.]”); Eakin v. Astrue, 432 F. App’x 607, 611 (7th Cir. 2011)
(“The RFC determination should include a discussion describing how the evidence, both
objective and subjective, supports the ultimate conclusion.”).
Here, the ALJ adequately explained and supported his RFC determination. Initially, the
Court does not find merit in Malone’s argument that the ALJ did not properly evaluate the
impact of his seizures. The ALJ reviewed both the medical and nonmedical evidence presented
to him and found that the evidence, including his seizure disorder, limited Malone to light work.
The ALJ also added a specific restriction in light of Malone’s seizures, finding that Malone

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“should avoid all exposure to hazards, such as dangerous machinery or unprotected heights,” and
that his seizures, in addition to other impairments “would prevent him from climbing ladders,
ropers, or scaffolds.” AR 21.
Malone also makes several arguments in which he essentially asks the Court to reweigh
the ALJ’s credibility assessment. But, as discussed above, the Court will only overturn the
ALJ’s credibility assessment if “patently wrong,” Pepper, 712 F.3d at 367 (quoting Craft, 539
F.3d at 678), or if the trier of fact “grounds his credibility finding in an observation or argument
that is unreasonable or unsupported,” Sims, 442 F.3d at 538. Malone claims the ALJ did not
sufficiently explain why he did not credit Malone’s testimony or Dr. Woodard’s opinion
regarding his seizures, but the ALJ explained how the other evidence in the record did not
substantiate the severity of Malone’s claimed seizure disorder, giving more weight to the
evaluations of the state agency consultants and neurologist on the issue. AR 21–22. Malone also
argues that the ALJ did not explain how Malone’s course of treatment and compliance with
treatment affected specific functional limitations. But the ALJ discussed how Malone’s
compliance or lack thereof with his seizure medicine affected the frequency and severity of his
seizures, noting that when Malone regularly took his medicine, he reported his seizures were
well-controlled with few significant side effects. AR 18. The ALJ took this into account in
making his credibility finding, as allowed by the regulations. See 20 U.S.C. § 416.929(c) (one of
the relevant factors to a claimant’s symptoms is “[t]he type, dosage, effectiveness, and side
effects of any medication [the claimant] take[s] or ha[s] taken to alleviate [his] pain or other
symptoms”).
Finally, Malone contends that the ALJ created an evidentiary deficit by giving only
partial weight to the medical opinions. The ALJ gave Dr. Woodard’s opinion slight weight and

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the state agency consultants’ opinions partial weight. This, however, does not mean that the ALJ
did not rely on any medical evidence to come to his RFC finding. The ALJ supported his
determination with substantial evidence, properly weighing the medical opinions and considering
the entire record, including Malone’s treatment notes and other medical records and his own
testimony, in reaching the RFC determination. See Schmidt v. Astrue, 496 F.3d 833, 845 (7th
Cir. 2007) (“[A]n ALJ must consider the entire record, but the ALJ is not required to rely
entirely on a particular physician’s opinion or choose between the opinions [of] any of the
claimant’s physicians.”). And while Malone argues that the ALJ added limitations not assessed
by the state agency consultants, these limitations were to Malone’s benefit and based on his own
evaluation of his restrictions. See SSR 96-7p, 1996 WL 374186, at *4 (ALJ “may . . . find an
individual’s statements, such as statements about the extent of functional limitations or
restrictions due to pain or other symptoms, to be credible to a certain degree” (emphasis added));
Cabrera v. Astrue, No. 10 C 4715, 2011 WL 1526734, at *12 (N.D. Ill. Apr. 20, 2011) (“Plaintiff
is correct that this is more restrictive than the state agency consultants’ findings of no
manipulative limitations whatsoever, but the ALJ fairly credited Plaintiff’s testimony in that
regard and modified the RFC assessment accordingly.”). Nor did the ALJ need to further
develop the evidentiary record here; the ALJ did not completely reject every medical opinion so
as to create an evidentiary deficit and the Court “generally respect[s] the [ALJ’s] reasoned
judgment” on how much evidence must be gathered. Smith v. Apfel, 231 F.3d 433, 443 (7th Cir.
2000) (alterations in original) (quoting Luna v. Shalala, 22 F.3d 687, 693 (7th Cir. 1994)). This
is further underscored by the fact that Malone’s counsel at the hearing did not suggest that the
ALJ needed additional evidence, such as an expert, to decide the claim. See Buckhanon ex rel.
J.H. v. Astrue, 368 F. App’x 674, 679 (7th Cir. 2010) (where a claimant is represented by

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counsel, an ALJ is “free to assume that [she] has presented her strongest case for benefits,” and
counsel’s failure to request additional medical opinion evidence suggests that it “would not help”
the claimant). Because the ALJ appropriately weighed the physicians’ opinions in developing
the RFC, giving some weight to Dr. Woodard’s and the state agency consultants’ opinions, the
Court cannot find that the ALJ improperly substituted his own lay assessment so as to require
remand. See McReynolds v. Berryhill, --- F. Supp. ----, 2018 WL 5574174, at *7 (N.D. Ill. Oct.
30, 2018) (finding that remand was not required because the ALJ considered the physicians’
opinions, resolving conflicts among them, and incorporated additional limitations to address
some of the claimant’s subjective symptoms).
CONCLUSION
For the foregoing reasons, the Court affirms the ALJ’s decision. The Court grants the
Commissioner’s motion for summary judgment [28] and enters judgment in favor of the
Commissioner and against Malone.

Dated: December 12, 2018

______________________
SARA L. ELLIS
United States District Judge

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