Falls v. Berryhill

Filing 33

MEMORANDUM Opinion and Order Signed by the Honorable Maria Valdez on 11/1/2018: Mailed notice (lp, )

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

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No. 17 C 2805
Magistrate Judge
Maria Valdez

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 denying Plaintiff Marcia
C. Falls’s claims for Disability Income Benefits (“DIB”) under Title II 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 following reasons,
Plaintiff’s motion for summary judgment is denied.
BACKGROUND
I.

PROCEDURAL HISTORY
In August 2012, Plaintiff filed her application for DIB, alleging disability

since November 1, 2011 due to anxiety, depression, a back condition, and arthritis
in the right knee. (R. 120, 149, 230.) Her application was denied initially and again
upon reconsideration. (R. 145–54.) Plaintiff then requested a hearing and appointed
Verlee Nathaniel (who is not an attorney) as her representative. (R. 155–56, 167.)

On March 7, 2014, Plaintiff appeared for a hearing before an ALJ. (R. 109–
19.) Although Plaintiff was accompanied by Ms. Nathaniel, she was not represented
by counsel. (R. 111–12.) During the hearing, the ALJ did not take substantive
testimony related to Plaintiff’s disability claim; instead, she discussed Plaintiff’s
rights regarding representation, provided Plaintiff with a list of legal service
organizations, and gave Plaintiff a computer disc containing her medical records to
review. (R. 112–17.) The ALJ then continued the hearing. (R. 117–19.)
The hearing resumed over a year later, on May 13, 2015. (R. 42–108.)
Plaintiff, intending to be represented by Ms. Nathaniel, again appeared without
counsel. (R. 44–47.) However, after the ALJ explained that Ms. Nathaniel could not
testify on Plaintiff’s behalf while representing her, Plaintiff decided to represent
herself. (R. 49–50.) Plaintiff and Ms. Nathaniel both gave testimony at the hearing.
(R. 52–80, 93–94.) In addition, two medical experts (“ME”) testified: Joseph
McKenna, M.D., testified regarding Plaintiff’s physical limitations, and Michael
Carney, Ph.D., testified regarding Plaintiff’s mental limitations. (R. 80–97, 1694–
95.) Thomas Dunleavy, a vocational expert (“VE”), also testified. (R. 98–106.) On
July 30, 2015, the ALJ issued an unfavorable decision finding that Plaintiff was not
disabled. (R. 16–41.) The Appeals Council denied review on February 13, 2017. (R.
1–5.)

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II.

ALJ DECISION
In determining that Plaintiff was not disabled, the ALJ analyzed Plaintiff’s

claim according to the five-step sequential evaluation process established under the
Act. (R. 20–21.) At step one, the ALJ determined that Plaintiff had not engaged in
substantial gainful activity since November 1, 2011, her alleged disability onset
date. (R. 21.) At step two, the ALJ found that Plaintiff suffered from the following
severe impairments: obesity, degenerative disc disease, right knee arthritis, mild
obstructive sleep apnea, major depressive disorder, anxiety disorder, post-traumatic
stress disorder (“PTSD”), personality disorder, and alcohol abuse. (Id.) 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 in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 22.)
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. 1 (R. 24.) At step four, the ALJ concluded that Plaintiff was not capable
of performing her past relevant work. (R. 35.) At step five, the ALJ found that,

1

At this stage, the ALJ limited Plaintiff to
no climbing of ladders, ropes, or scaffolds; no more than occasional climbing of
ramps and stairs, balancing, stooping, crouching, kneeling, and crawling;
avoid[ing] concentrated exposure to hazards; no more than simple, routine,
repetitive tasks in a work environment free of fast paced production
requirements; no more than simple work-related decision making with few, if
any, changes in the work setting; and no more than occasional contact with
supervisors, co-workers, and the public.

(R. 24.)

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considering Plaintiff’s age, education, work experience, RFC, and the MedicalVocational Guidelines, there are jobs existing in significant numbers in the national
economy that she can perform, including housekeeping cleaner, cafeteria attendant,
and laundry sorter. (R. 36–37.) Because of this determination, the ALJ found that
Plaintiff was not disabled under the Act. (R. 37.)
DISCUSSION
I.

ALJ STANDARD
Under the Act, a person is disabled if she 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). To determine disability, the ALJ considers five questions in
the following 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 her former occupation (i.e., past work)? and (5) Is the plaintiff
unable to perform any other work? See Young v. Sec’y of Health & Human Servs.,
957 F.2d 386, 389 (7th Cir. 1992); 20 C.F.R. § 404.1520(a)(4).
An affirmative answer at either step three or step five leads to a finding of
disability. Young, 957 F.2d at 389. A negative answer at any step, other than at step
three, precludes a finding of disability. Id. The plaintiff bears the burden of proof at
steps one through four. Id. If the plaintiff meets this burden, the burden then shifts

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to the Commissioner to show the plaintiff’s ability to engage in other work existing
in significant numbers in the national economy. See Weatherbee v. Astrue, 649 F.3d
565, 569 (7th Cir. 2011).
II.

JUDICIAL REVIEW
Because the Appeals Council denied review, the ALJ’s decision became the

final decision of the Commissioner, which is reviewable by this Court. 42 U.S.C. §
405(g); Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005). “The 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). Thus, 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). “Substantial evidence means ‘such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” Id. (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971)). This Court may not substitute its judgment for
that of the ALJ, reweigh evidence, resolve conflicts, or decide questions of
credibility. Id.; 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” so
long as “the decision is adequately supported”) (internal citation and quotations
omitted).
Although the ALJ need not “address every piece of evidence or testimony in
the record, 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).

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This requires the building of “an accurate and logical bridge from the evidence to
[the ALJ’s] conclusion.” Clifford, 227 F.3d at 872. The ALJ must explain the
“analysis of the evidence with enough detail and clarity to permit meaningful
appellate review.” Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 351 (7th Cir.
2005); see also 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.”) (internal
citations omitted).
In reviewing the ALJ’s decision, the Court plays an “extremely limited” role.
Elder, 529 F.3d at 413. Where conflicting evidence would allow reasonable minds to
differ, the responsibility for determining disability falls upon the ALJ, not the
Court. See Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir. 1990). Even so, an ALJ
must consider all relevant evidence, and it cannot “select and discuss only that
evidence that favors his ultimate conclusion.” Herron v. Shalala, 19 F.3d 329, 333
(7th Cir. 1994).
III.

ANALYSIS
Plaintiff argues that remand is appropriate because the ALJ: (1) did not

obtain a valid waiver of Plaintiff’s right to counsel and did not ensure that the
record was fully developed; (2) failed to support her physical and mental RFC
assessments with substantial evidence; (3) improperly assessed Plaintiff’s
credibility. For the reasons that follow, the Court disagrees.

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A.

Waiver and the ALJ’s Development of the Record

A disability claimant has the statutory right to be represented by counsel at
an administrative hearing. Binion v. Shalala, 13 F.3d 243, 245 (7th Cir. 1994). If
properly informed, though, the claimant may waive this right. Id. To ensure that a
claimant validly waives her right to counsel, the Seventh Circuit requires an ALJ to
explain “(1) the manner in which an attorney can aid in the proceedings, (2) the
possibility of free counsel or a contingency arrangement, and (3) the limitation on
attorney fees to 25 percent of past due benefits and required court approval of the
fees.” Id.
Although Plaintiff concedes that the ALJ described her right to
representation at both hearings, she contends that the ALJ did not obtain a valid
waiver of this right because she did not (1) inform Plaintiff that attorney fees are
capped or (2) explain how an attorney could present Plaintiff’s case in the best
possible light. 2 Plaintiff also contends that her waiver of counsel was invalid
because the ALJ failed to inform her at the first hearing that Ms. Nathaniel could
not testify as a witness if she was also representing Plaintiff.
Plaintiff’s contentions are unpersuasive. First, Plaintiff ignores the
documents the ALJ sent to her in January 2014 and April 2015 about her upcoming
hearings. (R. 168–82, 185–200.) Both sets of documents included a two-page

Plaintiff does not cite any legal authority requiring an ALJ to explain how an
attorney could present a claimant’s case “in the best possible light.” Instead, an ALJ
is only required to explain “the manner in which an attorney can aid in the
proceedings.” Binion, 13 F.3d at 245. The Court addresses Plaintiff’s waiver
argument in accordance with this standard.

2

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pamphlet entitled “Your Right to Representation” (R. 174–75, 191–92), which
explains “the right to counsel, the benefits of representation, and limitations on
fees—including the 25%-limitation—in rather simple and straightforward
language.” Moore v. Astrue, 851 F. Supp. 2d 1131, 1141 (N.D. Ill. 2012). Regarding
the 25 percent cap, the “Your Right to Representation” pamphlet explains:
•

that the Social Security Administration (“SSA”) will approve a fee agreement
with a representative if, among other things, the fee “is no more than 25
percent of past-due benefits or $6,000, whichever is less”;

•

that if a representative is eligible for direct payment, the SSA will “usually
withhold 25 percent (but never more) of your past-due benefits to pay toward
the fee” and that the SSA pays “all or part of the representatives from the
money and send[s] you any money left over”; and

•

that if a claimant appeals her claim to federal court, the fee allowed by the
court will usually “not exceed 25 percent of all past-due benefits that result
from the court’s decision.”

(R. 174–75, 191–92.) The pamphlet further explains the ways “in which an attorney
can aid in the proceedings.” Binion, 13 F.3d at 245. Specifically, it explains that a
representative, such as an attorney, can help a claimant by getting information
from her Social Security file; obtaining medical records or other information to
support her claim; accompanying her to any interviews, conferences, or hearings;
requesting reconsideration, hearing, or Appeals Council review; preparing her and
her witnesses for a hearing; and questioning any witnesses. (R. 174, 191.)
Plaintiff acknowledged receipt of the “Your Right to Representation”
pamphlet on both occasions via signed and returned acknowledgements, (R. 183,
206), and in her briefs, Plaintiff does not deny having received them. In these
circumstances, the ALJ satisfied her obligation to inform Plaintiff of the twenty-five
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percent cap on attorneys’ fees and the ways “in which an attorney can aid in the
proceedings.” Binion, 13 F.3d at 245; see, e.g., Moore, 851 F. Supp. 2d at 1141
(finding a valid waiver where the claimant acknowledged receipt of “Your Right to
Representation” via a signed and returned receipt); Peters v. Berryhill, No. 16 C
6901, 2018 WL 1762442, at *6 (N.D. Ill. Apr. 12, 2018) (finding a valid waiver
“where there is a signed acknowledgement of receipt” of “Your Right to
Representation” and the claimant conceded that he received the pamphlet).
Second, the ALJ explained to Plaintiff how an attorney representative could
help her with her case at both hearings. At the first hearing, the ALJ explained that
an attorney or non-attorney representative could help Plaintiff obtain information
about her disability claim, submit evidence, explain medical terms to her, help
protect her rights, make requests and give notices about the proceedings, and file
briefs explaining the legal theory of the case. (R. 113–14.) At the second hearing, the
ALJ reiterated that an attorney or non-attorney representative could help Plaintiff
obtain information about her claim, submit evidence, explain medical terms, help
protect her rights, and make any request or give any notice about the proceedings.
(R. 47–48.) Plaintiff indicated that she understood these explanations (R. 48–49,
113–15), which all identify ways “in which an attorney can aid in the proceedings.”
Binion, 13 F.3d at 245.
Third, Plaintiff does not cite any legal authority that required the ALJ to
inform her that Ms. Nathaniel could not serve as both a witness and her
representative. Nor is there any indication that Plaintiff would have obtained

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attorney representation had she been so informed at the first (as opposed to the
second) hearing. To the contrary, after informing Plaintiff that Ms. Nathaniel could
not be both a witness and a representative, the ALJ explained that Plaintiff could
choose to continue the case so that she could “find somebody else to represent” her.
(R. 49.) Plaintiff, instead, opted to represent herself and proceed. (Id.) Thus,
Plaintiff specifically declined the chance to seek attorney representation even after
she knew that Ms. Nathaniel could not represent her and testify at the same time.
Plaintiff has failed to show that her waiver of counsel was invalid. That,
however, does not end the Court’s inquiry, as Plaintiff further contends that the
ALJ failed to fully develop the record. Regardless of whether a claimant validly
waives her right to counsel, the ALJ must “scrupulously and conscientiously probe
into, inquire of, and explore for all the relevant facts” when a claimant proceeds
unrepresented. Nelms v. Astrue, 553 F.3d 1093, 1098 (7th Cir. 2009) (internal
quotations and alterations omitted); Binion, 13 F.3d at 245. Nonetheless, if a
claimant validly waives her right to counsel, she then bears the burden to show that
the ALJ failed to fulfill her duty to fully and fairly develop the record. Peters, 2018
WL 1762442, at *6. To meet this burden, Plaintiff must demonstrate a prejudicial
omission in the record; otherwise, the Court will generally uphold the ALJ’s
determination regarding the gathering of evidence. Nelms, 553 F.3d at 1098;
Johnson v. Colvin, No. 15 C 2155, 2016 WL 5940927, at *3 (N.D. Ill. Oct. 13, 2016).
Plaintiff contends that three types of documents were omitted from the
evidentiary record: (1) a sleep study and prescription for a continuous positive air

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pressure (“CPAP”) machine; (2) approximately fourteen months’ worth of
psychiatric records from the Department of Veterans Affairs (“VA”); and (3) records
regarding classes she took at the University of Phoenix. But Plaintiff makes no
attempt to demonstrate how the purported absence of these documents prejudiced
her. She does not explain how documentation regarding her sleep study or her
CPAP prescription would offer anything different from Ms. Nathaniel’s testimony
that Plaintiff suffered from mild sleep apnea and was given a CPAP machine. (R.
79.) Nor does Plaintiff explain how the purportedly missing VA records would have
impacted the ALJ’s findings regarding her mental symptoms and limitations.
Similarly, she does not even try to explain how her University of Phoenix records
would have affected the ALJ’s findings regarding her limitations.
The record also contradicts Plaintiff’s assertion that “[t]here is no indication
in the file that the ALJ attempted to obtain documents and that there were none
available.” (Pl.’s Br. in Supp. at 7.) At the end of the first hearing, the ALJ stated
that she would have her clerks contact the VA “to request any updated treatment
records between now and the next hearing.” (R. 117.) At the second hearing, after
the psychological ME’s testimony about an apparent lack of post-February 2014 VA
psychiatric records, the ALJ again stated that she would request updated records
from the VA. (R. 92–93, 106–07.) The ALJ also indicated that she would make her
decision once she obtained these additional records. (R. 107.) It appears the ALJ did
so: she obtained records from the VA after the second hearing yet before she
rendered her decision. (See R. 41 (identifying Exhibit 11F with her decision); R. 50–

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51 (moving Exhibits 1F through 10F into evidence).) Although Exhibit 11F consists
of only four pages of records, these records are from October 2013 and March 2015;
in other words, they span most of the period (between February 2014 and the May
2015 hearing) for which the psychological ME believed VA records might be
missing. (R. 42, 92–93, 1696–99.) Contrary to Plaintiff’s claim, it appears the ALJ
requested and received additional documents from the VA that were not in the
record at the time of the second hearing.
In conclusion, Plaintiff has failed to demonstrate that the ALJ obtained an
invalid waiver of counsel. Because of this failure, it was Plaintiff’s burden to show
that the ALJ failed to fully and fairly develop the record by explaining how the
omission of evidence prejudiced her. See Peters, 2018 WL 1762442, at *6; Johnson,
2016 WL 5940927, at *3. She did not do so. As such, the Court finds no error in the
ALJ’s development of the evidentiary record.
B.

The ALJ’s RFC Assessment

The RFC is an administrative assessment of what work-related activities a
claimant can perform despite her physical and mental limitations. Young v.
Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004); SSR 96-8p, 1996 WL 374184, at *2
(July 2, 1996). The ALJ makes this assessment “based upon medical evidence in the
record and other evidence, such as testimony by the claimant or [her] friends and
family.” Craft v. Astrue, 539 F.3d 668, 676 (7th Cir. 2008).
Here, the ALJ’s RFC assessment of Plaintiff’s physical limitations restricts
her to “light work” as defined in 20 C.F.R. § 404.1567(b) subject to various postural

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and environmental limitations. (R. 24.) As for Plaintiff’s mental limitations, the
ALJ’s RFC assessment restricts her to “simple, routine, repetitive tasks in a work
environment free of fast paced production requirements,” “simple work-related
decision making with few, if any changes in the work setting,” and “occasional
contact with supervisors, co-workers, and the public.” (Id.) Although Plaintiff
alleges several errors regarding these restrictions, none warrant remand.
1.

Physical RFC

Plaintiff first attacks the ALJ’s assessment of her physical limitations by
arguing that it is not consistent with any medical opinion in the record. The ALJ’s
assessment, however, largely follows the medical opinion of Lenore Gonzalez, M.D.,
a non-examining state agency consultant who reviewed the medical evidence. Even
where it deviates from Dr. Gonzalez’s opinion, the physical RFC is still supported,
as it is more restrictive than Dr. Gonzalez’s opinion in these instances. See Poole v.
Colvin, No. 12 C 10159, 2016 WL 1181817, at *9 (N.D. Ill. Mar. 28, 2016) (“[T]he
medical opinions of record supported the ALJ’s determination because those
opinions found Plaintiff to have a greater capacity than that ultimately ascribed by
the ALJ.”) (emphasis in original).
Dr. Gonzalez opined that Plaintiff was capable of occasionally lifting and
carrying twenty-five pounds; frequently lifting and carrying ten pounds; and
standing or walking for a total of six hours in an eight-hour workday. (R. 138.) This
opinion supports the physical RFC’s restriction to light work, which requires lifting
no more than twenty pounds at a time (a restriction more favorable to Plaintiff than

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Dr. Gonzalez’s opinion), frequent lifting or carrying of up to ten pounds, and
standing or walking for a total of approximately six hours. See 20 C.F.R. §
404.1567(b); SSR 83-10, 1983 WL 31251, at *6 (1983). Dr. Gonzalez also opined that
Plaintiff could occasionally climb ramps and stairs, but never ladders, ropes, or
scaffolds; could occasionally stoop, crouch, kneel, and crawl; had no limitations on
balancing; and should avoid concentrated exposure to hazards. (R. 138–39.) The
physical RFC similarly restricts Plaintiff to occasional climbing of ramps and stairs,
but never ladders, ropes, or scaffolds; occasional stooping, crouching, kneeling, and
crawling; and avoiding concentrated exposure to hazards. (R. 24.) The physical
RFC’s occasional balancing restriction is also supported by Dr. Gonzalez’s opinion,
as Dr. Gonzalez opined that Plaintiff had no limitations on balancing. (R. 24, 139);
see Poole, 2016 WL 1181817, at *9. Accordingly, Dr. Gonzalez’s opinion provides a
proper foundation for the ALJ’s physical RFC assessment. See Dampeer v. Astrue,
826 F. Supp. 2d 1073, 1085 (N.D. Ill. 2011) (finding that an RFC limiting plaintiff to
sedentary work was supported by substantial evidence where state agency doctors
concluded that the plaintiff could perform light work with certain limitations). 3

The Court notes that the ALJ incorrectly characterized Dr. Gonzalez’s findings as
limiting Plaintiff to medium work and, based on this characterization, stated that
she could not give much weight to the findings. (R. 33.) This mischaracterization
notwithstanding, the ALJ’s physical RFC assessment tracks many aspects of Dr.
Gonzalez’s opinion, which indicates that the ALJ did in fact rely upon this opinion.
Plaintiff also does not contend that the ALJ’s mischaracterization precludes Dr.
Gonzalez’s opinion from supporting the ALJ’s physical RFC assessment. As such, the
ALJ’s mischaracterization is, at most, harmless error, as the Court is confident that,
on remand, the ALJ would accurately describe Dr. Gonzalez’s opinion and note how
it supports her physical RFC assessment, leading to the same result here. See
McKinzey v. Astrue, 641 F.3d 884, 892 (7th Cir. 2011).

3

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Next, Plaintiff contends that Dr. Coulson, a VA physician who examined her,
concluded that her physical impairments limited her functionality (particularly
weightbearing activities), and later opined that Plaintiff had range of motion
limitations that precluded rigorous physical activity (although not sedentary work).
Plaintiff also identifies a 2013 VA examination purportedly showing that the range
of motion in her affected joints decreased with repetitive use testing. The problem
with this argument, however, is that Plaintiff does not explains how these opinions
or examinations justify a physical RFC more restrictive than the ALJ’s. See Penrod
ex rel. Penrod v. Berryhill, 900 F.3d 474, 478 (7th Cir. 2018) (rejecting as conclusory
and meritless plaintiff’s argument regarding the ALJ’s failure to consider a medical
opinion where she failed to “say what additional limitations the ALJ should have
included in the RFC analysis”); Weaver v. Berryhill, --- F. App’x ----, 2018 WL
3996853, at *3 (7th Cir. Aug. 20, 2018) (unpublished decision) (stating that the
plaintiff must provide evidence that her conditions “support specific limitations
affecting her capacity to work”). Nor does Plaintiff challenge the ALJ’s decision to
give “little weight” to the one finding that, on its face, could be more restrictive than
the physical RFC: Dr. Coulson’s conclusion that Plaintiff would not be prevented
from sedentary work. (R. 33, 1282.) Thus, Plaintiff has not shown how the ALJ
erred in her treatment of Dr. Coulson’s opinion or the 2013 VA examination.
Finally, Plaintiff has waived any contention that the ALJ improperly failed to
include any limitations related to sitting. Although Plaintiff’s opening brief asserted
that the physical RFC improperly omitted sitting limitations in the “Issues

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Presented” section and in an argument header, Plaintiff failed to substantively
develop this assertion in any way. Only after the Commissioner pointed out this
failure did Plaintiff, in her reply, set forth argument and identify supporting
evidence on this issue. Because there was no reason Plaintiff could not have done
this in her opening brief, this argument is waived. See Rogers v. Barnhart, 446 F.
Supp. 2d 828, 851 (N.D. Ill. 2006) (applying waiver to an argument that was first
advanced in a reply brief); see also Crespo v. Colvin, 824 F.3d 667, 674 (7th Cir.
2016) (holding that perfunctory and undeveloped arguments are waived).
Accordingly, Plaintiff has failed to show any reversible error in the ALJ’s physical
RFC assessment.
2.

Mental RFC

Turning to Plaintiff’s mental RFC arguments, Plaintiff first contends that the
ALJ’s mental RFC assessment is erroneous because the ALJ did not properly
evaluate the evidence underlying Plaintiff’s VA disability rating. In early 2012,
after she was discharged from the United States Army, Plaintiff underwent
treatment and presented for examinations at the VA. (R. 54–55, 850–51.) In June
2012, the VA issued a disability rating decision, which assigned Plaintiff an overall
90 percent service-connected disability rating. (R. 850–57, 861.) Relevant to
Plaintiff’s mental capabilities, the VA assigned Plaintiff a 50 percent serviceconnected disability rating based on her major depressive disorder with anxiety
disorder. (R. 851–52, 860.) Although the ALJ considered the VA disability rating
decision, she found it unpersuasive. (R. 30.) With respect to the VA’s 50 percent

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disability rating based on Plaintiff’s depression and anxiety, the ALJ determined
that the evidence as a whole showed that Plaintiff’s “functioning improves with
treatment and compliance and that she can perform work-related functions with
some mental limitations.” (Id.) The ALJ also discounted the VA’s disability ratings
because the VA used a “more deferential standard for evaluating subjective
complaints” than that used by the SSA. (Id.) This meant that the VA’s ratings were
skewed by Plaintiff’s subjective complaints, which the ALJ found were not fully
credible under the “more rigorous credibility standards required by SSA regulations
and policy.” (See R. 30–31.)
Plaintiff argues that remand is necessary because, in evaluating the VA
disability rating, the ALJ improperly ignored records demonstrating that Plaintiff
still experienced significant, ongoing psychological symptoms even when she
complied with her psychiatric medications and other treatments. The Court
disagrees. The ALJ indicated that she considered the evidence of record as a whole
and in any event, the ALJ was not required to mention every piece of evidence, so
long as she built a logical bridge from the evidence to her conclusion. Denton v.
Astrue, 596 F.3d 419, 425 (7th Cir. 2010). The ALJ did that: she indicated that the
VA disability ratings were undermined by evidence of Plaintiff’s improved
functioning with treatment and her ability to perform work-related functions with
some mental limitations, and she further explained that Plaintiff’s less-thancredible subjective complaints, which impacted the VA ratings decisions, caused her
to question these ratings.

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Plaintiff also fails to explain how the allegedly ignored evidence would have
affected the ALJ’s evaluation. As noted above, the ALJ reasoned, in part, that the
evidence showed functional improvement with treatment and compliance. Even if
the evidence also showed continued psychological symptoms (despite treatment and
compliance), ongoing symptomology does not equate to functional impairment. In
other words, the mere existence of those symptoms did not necessarily preclude
Plaintiff from performing work-related functions or improving in her performance of
these functions. See Gentle v. Barnhart, 430 F.3d 865, 868 (7th Cir. 2005) (“A person
can be depressed, anxious, and obese yet still perform full-time work.”). Notably,
Plaintiff does not argue that the allegedly ignored evidence demonstrates that her
work-related functioning, as opposed to her symptoms, failed to improve with
treatment and compliance.
Presumably, Plaintiff believes that had the ALJ considered the evidence at
issue, she would have given the VA disability ratings greater weight. But Plaintiff
does not explain how these ratings, expressed in percentages, would translate into
additional restrictions that should have been included in the mental RFC or would
support “specific limitations affecting her capacity to work,” as was her burden. See
Weaver, 2018 WL 3996853, at *3.
Next, Plaintiff contends that the ALJ failed to adequately explain her failure
to restrict Plaintiff in a manner consistent with the opinions of the state agency
psychological consultants, Darrell Snyder, Ph.D. and Howard Tin, Psy.D. Both
consultants opined that Plaintiff’s “ability to sustain concentration and carry out

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routine, repetitive tasks of 1-2 steps would be intact but she would make increasing
errors with more difficult tasks.” (R. 128, 142 (emphasis added).) The consultants
further opined that Plaintiff’s contacts with the public and supervisors must be
“brief and superficial.” (Id.) Although the ALJ limited Plaintiff to “simple, routine,
repetitive tasks” in her RFC assessment and hypothetical questions to the VE, she
did not explicitly restrict Plaintiff to one-to-two step tasks. (R. 24, 101, 103–04.) Nor
did the ALJ include a “brief and superficial” restriction for contact with the public
and supervisors; instead, she limited Plaintiff to occasional contact with
supervisors, coworkers, and the public. (Id.)
The ALJ’s omission of the consultants’ one-to-two step task and “brief and
superficial” contact restrictions does not require remand. The ALJ was not obligated
to adopt every restriction offered by the state agency consultants. See Schmidt v.
Astrue, 496 F.3d 833, 845 (7th Cir. 2007) (“[T]he ALJ is not required to rely entirely
on a particular physician’s opinion[.]”); Reyes v. Colvin, No. 14 C 7359, 2015 WL
6164953, at *13 (N.D. Ill. Oct. 20, 2015) (“The rule in this circuit is that an ALJ may
choose to adopt only parts of a medical opinion[.]”) (internal quotations and
alteration omitted). Indeed, the ALJ only gave the consultants’ opinions “some
weight” (R. 33), indicating her intention to adopt some, but not all, of their proposed
restrictions. See Maxwell v. Berryhill, No. 16 C 6101, 2017 WL 4180340, at *8 (N.D.
Ill. Sept. 21, 2017) (finding that the ALJ’s adoption of some, but not all, of a
consultant’s limitations indicated that she gave “some weight” to the consultant’s
findings). She was permitted to do so. See id.; Reyes, 2015 WL 6164953, at *13.

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Furthermore, the ALJ specifically explained why she rejected the
consultants’ “brief and superficial” contact restriction: it seemed to contradict their
finding that Plaintiff only exhibited mild limitations in her daily living activities
and because Plaintiff “attends classes in person at the University of Phoenix, lives
with her partner and four young children, and at least at times, watches the
children while her partner works.” (R. 33–34.) This explanation was not illogical, as
Plaintiff contends. In analyzing Plaintiff’s daily living activities, the ALJ considered
that Plaintiff attended classes in person for five to six weeks at a time and watched
her partner’s children. (R. 23.) The ALJ could have reasonably found that Plaintiff’s
ability to attend classes in person, live with five other people, and watch and take
care of four children was inconsistent with a purported inability to be around others
for more than a “brief and superficial” amount of time.
In any event, Plaintiff has not shown that any error in the ALJ’s failure to
explicitly adopt the restrictions at issue requires remand. See McKinzey, 641 F.3d at
892 (“[A]dministrative error may be harmless.”). To start, Plaintiff makes no
attempt to explain how a brief and superficial contact restriction would preclude
any of the jobs identified by the ALJ. As for the one-to-two step task restriction, the
VE testified that an individual with Plaintiff’s restrictions could work as a
housekeeping/cleaner, which, as Plaintiff concedes, has a Reasoning Development
Level of 1. (R. 36, 101–04). And even those claimants that are limited to performing
one-to-two step tasks can perform Reasoning Development Level 1 occupations such
as housekeeping/cleaner. See Perry v. Colvin, 945 F. Supp. 2d 949, 964 (N.D. Ill.

20

2013) (explaining that a one-to-two step task restriction “translates to reasoning
level 1”); Tincher v. Berryhill, No. 16 C 7305, 2018 WL 472447, at *6 (N.D. Ill. Jan.
18, 2018) (noting that several courts in this District have concluded that a one-totwo-step task limitation is consistent with Reasoning Development Level 1). 4 The
VE further testified that there are a significant number of housekeeping/cleaner
jobs—over 10,000—in Illinois. (R. 102); see Liskowitz v. Astrue, 559 F.3d 736, 743
(7th Cir. 2009) (finding 4,000 jobs significant and noting that “it appears to be wellestablished that 1,000 jobs is a significant number”). Thus, even if Plaintiff were
restricted to one-to-two step tasks, there still existed a significant number of jobs
that she could perform. See Zblewski v. Astrue, 302 F. App’x 488, 494 (7th Cir. 2008)
(unpublished decision) (finding harmless error because 2,000 jobs would remain
available); Baker v. Colvin, No. 13 C 311, 2015 WL 719604, at *5 (N.D. Ill. Feb. 18,
2015) (“[E]ven if the ALJ had adopted the RFC limitations in the state agency
consultants’ reports, the ALJ would still find that [the claimant] is not disabled
because jobs exist in the regional economy for someone with those limitations.”).
Lastly, Plaintiff contends that the ALJ failed to explain how the mental RFC
adequately accommodated her moderate limitations in social functioning and
maintaining concentration, persistence, or pace. Plaintiff, however, fails to explain
why these limitations are not adequately accommodated by the mental RFC or to
identify additional restrictions that would adequately accommodate her limitations.
Plaintiff does not argue otherwise; she merely contends that the housekeeping/
cleaner occupation requires light work, which is not supported by substantial
evidence. The Court has already rejected Plaintiff’s argument that the ALJ’s light
work restriction is not supported.

4

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See Penrod, 900 F.3d at 478; see also Allord v. Astrue, 631 F.3d 411, 416 (7th Cir.
2011) (the claimant “bears the burden of proof regarding [her] disabling
conditions”). For instance, although Plaintiff appears to contend that the “simple”
instruction and task restrictions do not adequately address her moderate
limitations in concentration, persistence, or pace, she does so without any further
elaboration. Similarly, Plaintiff sets forth specific examples that purportedly reflect
her troubles interacting with others, but she never provides any developed
argument as to why these troubles are not sufficiently accommodated by the mental
RFC’s restriction to occasional contact with the public, coworkers, and supervisors.
Simply asserting error without more, as Plaintiff has done, is not enough. See
Crespo, 824 F.3d at 674 (perfunctory and undeveloped arguments are waived);
McMurtry v. Berryhill, No. 16 C 8462, 2018 WL 2320929, at *3 (N.D. Ill. May 22,
2018) (“Due to the conclusory nature of Plaintiff’s argument, and her lack of
analysis, the Court finds that no error occurred.”).
Furthermore, the ALJ adequately accounted for Plaintiff’s moderate
limitations in social functioning and concentration, persistence, or pace because she
formulated an RFC and asked hypothetical questions that were consistent with the
RFC assessment of psychological ME Dr. Carney, who did account for these
moderate limitations. See Milliken v. Astrue, 397 F. App’x 218, 221–22 (7th Cir.
2010) (unpublished decision). In Milliken, an ME testified that despite the
claimant’s limitations in concentration, persistence, and pace, she could perform
unskilled work tasks. Id. at 219–20. The ALJ’s RFC assessment and hypothetical

22

questions to the VE, however, did not explicitly address the claimant’s moderate
concentration, persistence, and pace limitations. Id. at 221–22. Instead, the ALJ
limited the claimant to unskilled work, which the claimant argued did not
sufficiently account for her moderate mental limitations. Id. at 221. The Seventh
Circuit disagreed. It found that the ME, by testifying that the claimant could
perform unskilled work despite her limitations in concentration, persistence, and
pace, “effectively translated” his opinion regarding these limitations into an RFC
assessment. Id. at 221–22. Then, by asking a hypothetical question limited to
unskilled work, the ALJ incorporated the ME’s assessment that the claimant could
perform unskilled work despite her moderate mental limitations. Id. at 222. This
sufficiently accounted for the claimant’s limitations in concentration, persistence,
and pace. Id.
Similarly, ME Dr. Carney, who recognized Plaintiff’s moderate limitations in
social functioning and concentration, persistence, or pace, testified that Plaintiff
was restricted to very occasional contact with the public, occasional contact with
supervisors, simple tasks, and a low-stress work setting. (R. 95-97.) By doing so, Dr.
Carney “effectively translated” his opinion regarding the moderate mental
limitations at issue into an RFC assessment. See Milliken, 397 F. App’x at 221. The
ALJ’s mental RFC assessment likewise limits Plaintiff to simple tasks (although
also routine and repetitive) and occasional contact with the public and supervisors.
(R. 24, 97.) The mental RFC accommodates Dr. Carney’s low-stress work setting
restriction by prohibiting fast-paced production requirements, minimizing changes

23

in the work setting, and limiting Plaintiff to simple work-related decision making.
(Id.) The ALJ’s hypothetical questions, in turn, incorporated these mental RFC
restrictions. (R. 101, 103–04.) Thus, by crediting the mental RFC restrictions
described by Dr. Carney, who acknowledged Plaintiff’s moderate limitations in
social functioning and concentration, persistence, or pace, the ALJ adequately
accounted for these limitations. See Milliken, 397 F. App’x at 222. Therefore,
Plaintiff has failed to show any error in the ALJ’s mental RFC assessment that
requires remand.
C.

Credibility

Finally, Plaintiff argues that the ALJ improperly assessed her subjective
complaints, which the ALJ found “not entirely credible.” (R. 33.) An ALJ must give
specific reasons for discrediting a claimant. Lopez ex rel. Lopez v. Barnhart, 336
F.3d 535, 539 (7th Cir. 2003). “Those reasons must be supported by record evidence
and must be sufficiently specific to make clear . . . the weight the adjudicator gave
to the individual’s statements and the reasons for that weight.” Id. at 539–40
(internal quotations omitted); see SSR 96-7p, 1996 WL 374186, at *4 (July 2, 1996). 5

In 2016, the SSA 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 (Mar.
16, 2016). Although the ruling makes clear that ALJs “aren’t in the business of impeaching
claimants’ character,” it 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). 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 March 28, 2016. See Notice of Social Security Ruling, 82 Fed. Reg. 49462-03, 2017
WL 4790249, at n.27 (Oct. 25, 2017). The ALJ issued her opinion on July 30, 2015. (R. 37.)
Therefore, contrary to Plaintiff’s argument, the ALJ’s finding was subject to SSR 96-7p, not
5

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Nonetheless, this Court defers to an ALJ’s credibility determination unless it is
“patently wrong.” Schmidt, 496 F.3d at 843. And contrary to Plaintiff’s contention,
the Seventh Circuit’s “patently wrong” standard continues to govern the Court’s
review of an ALJ’s credibility determination even after the issuance of SSR 16-3p.
See, e.g., Simon-Leveque v. Colvin, 229 F. Supp. 3d 778, 790–92 (N.D. Ill. 2017);
Spaulding v. Berryhill, No. 16 C 6298, 2017 WL 3922878, at *10 (N.D. Ill. Sept. 7,
2017) (citing cases); Bellamy v. Berryhill, No. 2:17-cv-02013, 2018 WL 2077734, at
*3 (C.D. Ill. Mar. 8, 2018).
Here, the ALJ’s credibility determination, as Plaintiff points out, relied on
inconsistent statements made to Plaintiff’s treating physicians, the SSA, and to the
ALJ at the administrative hearing. Inconsistencies in the evidence can support an
ALJ’s decision to find a claimant less credible. See, e.g., Curvin v. Colvin, 778 F.3d
645, 651 (7th Cir. 2015) (upholding credibility determination based on various
inconsistencies between the plaintiff’s alleged symptoms and the other evidence);
Michalec v. Colvin, 629 F. App’x 771, 775 (7th Cir. 2015) (unpublished decision) (“In
light of the inconsistencies between Michalec’s statements to his doctors and his
testimony at the hearing, Michalec has not shown that the ALJ’s credibility
assessment is patently erroneous.”). And with one exception discussed below,
Plaintiff does not contest the existence of the inconsistencies identified by the ALJ

SSR 16-3p. Nonetheless, the Court recognizes that SSR 16-3p and SSR 96-7p are not
substantively different, see Cole, 831 F.3d at 412, and it will refer to the ALJ’s evaluation of
Plaintiff’s subjective allegations as a “credibility” determination.

25

or the ALJ’s reliance on them to assess her credibility. This alone weighs against
overturning the ALJ’s credibility determination.
The only alleged inconsistency disputed by Plaintiff relates to her statements
about driving. Although the ALJ recognized that Plaintiff and Ms. Nathaniel
claimed that Plaintiff does not drive, she identified a December 2013 treatment note
reporting that “[w]hen driving, [Plaintiff] is easily triggered and argues with other
drivers frequently.” (R. 30–31, 1407.) The ALJ believed this was one of several
purported inconsistencies that “cast great doubt upon [Plaintiff’s] credibility.” (R.
30–31.) According to Plaintiff, however, this note is not inconsistent with her
driving claims, because it explains that anxiety and anger prevent her from driving.
The Court’s role is not to reinterpret this evidence, but to merely ensure that
the ALJ’s interpretation was reasonable. See Elder, 529 F.3d at 413. Even if
Plaintiff’s interpretation of the December 2013 treatment note is the correct one,
that does not make the ALJ’s interpretation unreasonable. To the contrary, the ALJ
could reasonably have interpreted the note as evidence that, as of December 2013,
Plaintiff drove despite being “easily triggered” and arguing frequently with other
drivers. (R. 1407.) And the statement is phrased in the present tense, which
suggests that Plaintiff was still driving when the note was recorded. Because the
ALJ’s apparent interpretation of the December 2013 treatment note was
reasonable, her finding that Plaintiff offered inconsistent statements about driving
was not erroneous.

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As noted above, Plaintiff does not otherwise contest the existence of the
inconsistencies identified by the ALJ or the ALJ’s reliance on them to determine
credibility. Instead, Plaintiff contends that Craft v. Astrue, 539 F.3d 668 (7th Cir.
2008), required the ALJ to provide her or Ms. Nathaniel an opportunity to explain
these inconsistencies. Plaintiff’s reliance on Craft, though, is misplaced. In Craft,
the Seventh Circuit, relying upon SSR 96-7p, explained that before an ALJ can
make an adverse credibility finding based on a claimant’s failure to seek medical
treatment, she is required to “explore[ ] the claimant’s explanations as to the lack of
medical care.” 539 F.3d at 678–79. Here, however, Plaintiff does not contend that
any aspect of the ALJ’s credibility finding is based on a lack of medical treatment.
Nor did Craft even address a credibility determination based on inconsistent
statements. As such, Craft did not require the ALJ to give Plaintiff the chance to
explain away every inconsistent statement or allegation in the record.
Plaintiff’s last challenge regarding credibility faults the ALJ for discounting
Plaintiff’s limitations based on evidence related to her taking of classes through the
University of Phoenix. Specifically, Plaintiff argues that the ALJ failed to explain
how Plaintiff’s limited class load, low grade point average, difficulty sitting longer
than thirty minutes during classes, and problems getting along with other students
warranted an adverse credibility determination. 6 The ALJ, however, was not
required to discuss every University of Phoenix-related piece of evidence in

Although Plaintiff also asserts that the ALJ should have requested records from
the University of Phoenix, she fails to explain how these records would have affected
to the ALJ’s credibility determination.

6

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determining Plaintiff’s credibility. Sawyer v. Colvin, 512 F. App’x 603, 608 (7th Cir.
2013) (unpublished decision). Nor does Plaintiff’s apparent disagreement with the
ALJ’s decision to emphasize other aspects of the University of Phoenix evidence
over the above-identified evidence constitute grounds for reversal. Such a decision
simply reflects the ALJ’s weighing of the evidence, which this Court will not disturb
on appeal. See Clifford, 227 F.3d at 869 (reviewing courts “do not reweigh the
evidence”).
Moreover, the ALJ explained why the University of Phoenix evidence she did
rely upon supported her credibility determination. See Pepper v. Colvin, 712 F.3d
351, 367 (7th Cir. 2013) (“[A]n ALJ must adequately explain his credibility finding
by discussing specific reasons supported by the record.”). For instance, the ALJ
explained that Plaintiff’s ability to attend, in person and without accommodation,
five-to-six-week classes that required substantial concentration and out of class
work cast doubt on her reports of extremely limited activities of daily living. (R. 23,
31–32.) The ALJ also noted that it was likely that Plaintiff attended these classes
unaccompanied, which contradicted her report that she never goes out alone. (R.
31.) These explanations sufficiently support the ALJ’s treatment of the University
of Phoenix evidence in her credibility assessment.
Ultimately, Plaintiff not shown that the ALJ’s evaluation of her credibility
based on her inconsistent statements was “patently wrong.” Accordingly, the Court
upholds the ALJ’s credibility determination. See Schmidt, 496 F.3d at 843.

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CONCLUSION
For the foregoing reasons, Plaintiff’s motion for summary judgment is denied.

SO ORDERED.

ENTERED:

DATE:

___________________________
HON. MARIA VALDEZ
United States Magistrate Judge

November 1, 2018

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