Cervantes v. Berryhill
Filing
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MEMORANDUM Opinion and Order: The Court denies plaintiff's motion for summary judgment 8 and grants the Commissioner's summary judgment motion 15 . The Court affirms the ALJ's decision. Civil case terminated. Signed by the Honorable Sharon Johnson Coleman on 10/1/2020. Mailed notice. (ym, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
WENDY C.,1
Plaintiff,
v.
ANDREW M. SAUL, Commissioner of Social
Security,
Defendant.
)
)
) Case No. 17-cv-8347
)
) Judge Sharon Johnson Coleman
)
)
)
)
)
MEMDORANDUM OPINION AND ORDER
Plaintiff Wendy C. brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the
final decision of the Commissioner of Social Security denying her application for Disability
Insurance Benefits (“DIB”), 42 U.S.C. §§ 416(i), 423, and Supplemental Security Income (“SSI”), 42
U.S.C. §§ 1381a, 1382c. Wendy, by counsel, has filed a motion for summary judgment asking the
Court to reverse or remand the Administrative Law Judge’s (“ALJ”) decision and the Commissioner
has filed a cross-motion for summary judgment in response. After careful review of the record and
the parties’ respective arguments, the Court concludes that substantial evidence supports the ALJ’s
residual functional capacity assessment, the ALJ properly assessed Wendy’s credibility, and the ALJ
reasonably assessed the medical opinions that Wendy specifically challenges. The Court therefore
denies Wendy’s motion for summary and grants the Commissioner’s motion.
Background
Wendy filed applications for benefits on March 10, 2014, alleging a disability onset date of
Northern District of Illinois Internal Operating Procedure 22 prohibits listing the full name of the Social
Security applicant in an opinion. Therefore, the plaintiff shall be listed using only their first name and the
first initial of their last name.
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January 10, 2014. Wendy was 36-years-old when she filed her applications. At the time she stopped
working, Wendy was a medical assistant in a physician’s group. Her applications for benefits were
denied initially and upon reconsideration. Wendy then requested a hearing before an ALJ, which
was held on October 3, 2016. At the hearing, a medical expert and vocation expert testified, along
with Wendy. On February 24, 2017, the ALJ issued a decision denying Wendy’s applications. The
Appeals Council then declined review, leaving the ALJ’s February 2017 decision as the
Commissioner’s final decision reviewable by this Court under 42 U.S.C. § 405(g).2
Judicial Standard of Review
Courts uphold an ALJ’s disability determination if the ALJ uses the correct legal standards,
the decision is supported by substantial evidence, and the ALJ builds an accurate and a logical bridge
from the evidence to the conclusion. Jeske v. Saul, 955 F.3d 583, 587 (7th Cir. 2020); 42 U.S.C. §
405(g). “Substantial evidence” means “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Surprise v. Saul, 968 F.3d 658, 662 (7th Cir. 2020) (citation
omitted). A federal court’s review of an ALJ’s decision is deferential, which means that courts do
not reweigh the evidence or substitute their judgment for that of the ALJ. Wagner v. Berryhill, 920
F.3d 1146, 1152 (7th Cir. 2019).
Disability Determination Standard
A person is disabled under the Social Security Act if 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
The Court notes that the decision in this matter has been delayed due, in part, to a partial government
shutdown and the COVID-19 public emergency, at which time this matter was inadvertently overlooked.
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continuous period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(A). The Social Security
Administration has set forth a five-step sequential evaluation for determining whether an individual
is disabled. Krell v. Saul, 931 F.3d 582, 584 (7th Cir. 2019). This evaluation considers whether (1) the
claimant has engage in substantial gainful activity during the period for which she claims disability;
(2) the claimant has a severe impairment or combination of impairments; (3) the claimant’s severe
impairment or combination of impairments is one that the Commissioner considers conclusively
disabling as enumerated in the regulations; (4) if the claimant does not have a conclusively disabling
impairment, whether she can perform past relevant work; and (5) the claimant is capable of
performing any work in the national economy. 20 C.F.R. § 404.1520.
ALJ’s Disability Determination
Here, at step one, the ALJ found that Wendy had not engaged in substantial gainful activity
since the alleged onset date of January 10, 2014. At step two, the ALJ determined Wendy had the
severe impairments of anxiety disorder, post-traumatic stress disorder, depressive disorder, bipolar
disorder, seizure disorder, fibromyalgia, obesity, and degenerative disc disease of the cervical spine
(status post discectomy and fusion). The ALJ also determined that Wendy suffered from non-severe
obstructive sleep apnea, foot problems, and a rotator cuff tear. At step three, the ALJ concluded
that Wendy did not have an impairment or combination of impairments that meets or medically
equals the severity of one of the listed impairments. 20 C.F.R. § 404.1594(f)(2).
At step four, the ALJ decided that Wendy has the residual functional capacity (“RFC”) to
perform light work except “she can never climb ladders, ropes or scaffolds; can only occasionally
climb ramps and stairs, balance, stoop, kneel, crouch and crawl; can only occasionally be exposed to
unprotected heights and dangerous heavy moving machinery; and can never perform commercial
driving.” The ALJ further concluded that Wendy “is limited to understanding, remembering and
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carrying out no more than simple, routine and repetitive tasks” and that she “is not able to meet
hourly production goals, but is able to meet end-of-day goals.” In addition, the ALJ stated that
Wendy “can use judgment but is limited to simple work-related decisions” and is “also limited to
work involving no more than brief and superficial interaction with coworkers and the public.” As
such, the ALJ concluded that Wendy was unable to perform her past relevant work. At step five,
considering Wendy’s age, education, work experience, and RFC, the ALJ concluded there are jobs in
significant numbers in the national economy Wendy can perform that have light exertional levels,
including cleaner-housekeeper, mailroom clerk, and dishwasher.
Analysis
Wendy contends that the ALJ erred for several reasons, including (1) the limitations included
in her RFC assessment cannot be reconciled with her exertional and non-exertional deficits, (2) the
ALJ improperly rejected her subjective statements about her symptoms and limitations, and (3) there
is no logical support for the ALJ’s assessment of certain medical opinions.
RFC Limitations
First, Wendy argues that the ALJ’s RFC assessment made at step four failed to incorporate
all of her limitations supported by the medical record, including limitations in concentration,
persistence, or pace. Crump v. Saul, 932 F.3d 567, 570 (7th Cir. 2019). Specifically, Wendy asserts
that the ALJ failed to take into consideration her limitations arising from her fibromyalgia, her
obesity (BMI 43) in tandem with her left foot impairment, and her seizures. Also, Wendy takes issue
with the ALJ’s failure to sufficiently take into account her limitations as to concentration,
persistence, or pace.
As to Wendy’s fibromyalgia, the ALJ considered the September 2014 physical examination
by Dr. Ximena Chavez, M.D., in which the physician noted that a neurologist had diagnosed Wendy
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as having fibromyalgia. Dr. Chavez’s examination reflected that Wendy was moving all extremities
freely, her reflexes were intact, and that there was “no obvious swelling tenderness, misalignment or
other abnormalities” except for “tenderness on palpation of her paracervical muscles, paralumbar
muscles, arms, and legs.” After reviewing this report, the ALJ concluded that Dr. Chavez’s
September 2014 evaluation was “essentially benign” as to Wendy’s fibromyalgia, but the ALJ gave
Wendy the benefit of the doubt concluding that “her fibromyalgia-like symptoms have contributed
to the RFC limitations.”
Wendy relies on this same September 2014 examination by Dr. Chavez to support her
argument that “the ALJ practically dismissed the existence of the impairment.” Wendy argues that
the September 2014 evaluation listed many symptoms that the ALJ ignored, including chronic
fatigue, muscle pain and multi-joint pain, unrefreshing sleep, post-exertional malaise, joint swelling,
widespread pain for three or more months, pain in eleven pressure points, stiffness, tension
headaches, sleep disturbance, memory loss, and inability to ambulate effectively. Dr. Chavez,
however, did not observe or conclude that Wendy had any of these symptoms. In other words, the
September 2014 examination is silent as to these other symptoms that Wendy now lists. Because the
ALJ did not ignore the symptoms of which the ALJ was aware, and adequately included them in the
RFC determination, the ALJ did not err in this respect.
Next, Wendy asserts that the ALJ failed to properly take into account her obesity and left
foot impairment when concluding she could work at a light exertional level. Wendy’s counsel,
however, fails to provide any rationale or support for how the ALJ erred. Despite the lack of
argument, for the sake of completeness, the Court reviews the ALJ’s decision in this regard. In the
decision, the ALJ sufficiently discussed Wendy’s left foot problems and surgeries in detail noting
that Wendy continued to work at her job as a medical assistant that required time on her feet until
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her onset date. The ALJ further considered the treatment notes after the second foot surgery, which
did not show any significantly abnormal gate or foot-related problems. As to Wendy’s obesity, the
ALJ recognized that it contributed to Wendy’s musculoskeletal pain and exertional and postural
limitations, but that the absence of more serious musculoskeletal findings suggested Wendy’s obesity
had yet to cause major deterioration. In sum, the ALJ sufficiently considered Wendy’s obesity and
foot problems when evaluating her work-related impairments despite counsel’s conclusory argument
to the contrary.
Furthermore, Wendy challenges the ALJ’s conclusion in relation to her seizure disorder,
which the ALJ found to be a severe impairment. In the decision, the ALJ noted Wendy had normal
EEG (electrophysiological) results in both February 2011 and August 2013, but that an EEG in July
2011 showed rhythmic sharp and slow activity over the frontal regions waxing and waning during
sleep. Also, the ALJ noted that in July 2014, there was a partial episode involving the frontal lobe.
The ALJ, however, reasoned that there was no medical evidence of ongoing or consistent seizure
activity. Therefore, the ALJ concluded that the seizure disorder was mild, well-controlled, or both
and that the RFC limitations included restrictions regarding dangerous activities should Wendy
experience a seizure at work.
Wendy argues the ALJ’s RFC limitations do not eliminate the likelihood that she will be off
task at work in relation to her seizure disorder. Wendy, however, does not suggest how the medical
record demonstrates that greater functional limitations should be included in her RFC assessment.
Because Wendy has not explained what work restrictions would address her limitations in relation to
her seizure disorder, any alleged error is harmless. See Jozefyk v. Berryhill, 923 F.3d 492, 498 (7th Cir.
2019).
Next, Wendy contends that the ALJ ignored the opinion of testifying medical expert Dr.
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Allen Heinemann where he stated that Wendy would need to take frequent, unscheduled breaks.
Wendy mischaracterizes Dr. Heineman’s testimony, in which he stated that Wendy could perform
simple tasks for two-hour periods without the need for a break, not that she would need to take
frequent, unscheduled breaks. In fact, the ALJ relied recognized Dr. Heineman’s testimony
concerning Wendy’s need for fifteen minute breaks every two hours in the February 2017 decision.
Credibility Determinations
Wendy also challenges the ALJ’s credibility determinations in relation to her subjective
statements about her symptoms and limitations. Federal courts give an ALJ’s credibility findings
special deference unless they are patently wrong. Burmester v. Berryhill, 920 F.3d 507, 510 (7th Cir.
2019). Here, Wendy argues the ALJ improperly expressed skepticism about her reason for quitting
her job. In the February 2017 decision, the ALJ noted Wendy had reported to Dr. Julie Kogan,
M.D., a consultative examiner, that she stopped working in January 2014 because of a conflict at
work. The ALJ concluded that this statement “clearly suggest[ed] it was not her physical condition
(and not necessarily a mental impairment either) that was the reason she stopped working.” Indeed,
Wendy similarly testified at the October 2016 hearing that she quit work based on an incident at
work that made her cry and call her psychiatrist. Because Wendy’s testimony is consistent with her
statement to Dr. Kogan that a conflict at work was her reason for leaving work, the ALJ’s weighing
of the evidence, although not flawless, was not patently wrong. See Murphy v. Colvin, 759 F.3d 811,
816 (7th Cir. 2014) (patently wrong “means that the decision lacks any explanation or support.”).
Moreover, the ALJ largely credited Wendy’s mental complaints and symptoms as reflected in
significant limitations included in the RFC, and thus any alleged “skepticism” was harmless error,
especially because counsel does not explain how the ALJ’s discussion affected the outcome of her
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RFC or other aspects of her disability claims. See Penrod v. Berryhill, 900 F.3d 474, 478 (7th Cir. 2018)
(per curiam).
Further, Wendy maintains that the ALJ dismissed her psychiatric complaints because she had
never been hospitalized. Wendy misstates the ALJ’s findings and ignores the ALJ’s reliance on
Wendy’s mental complaints and symptoms in fashioning the RFC. In the decision, the ALJ noted
that that Wendy has never been hospitalized, but did not dismiss Wendy’s complaints about her
mental condition based on the lack of hospitalization. Rather, the ALJ largely credited the medical
evidence of Wendy’s mental condition and her own self-reported symptoms when limiting Wendy to
simple work with only incidental contact with the public and co-workers.
Next, Wendy asserts that the ALJ made an unsubstantiated leap by not properly considering
her daily activities and suggesting that activities such as showering, eating, and watching television
would translate into her ability to sustain full-time work. The Court disagrees with Wendy’s
characterization of the ALJ’s decision. The ALJ did not connect Wendy’s daily activities to her
ability to sustain full-time work, but instead, considered Wendy’s daily activities as required under 20
C.F.R. § 404.1529(c)(3)(i), along with all of the evidence in the record when evaluating the severity
of Wendy’s symptoms. In sum, it is “entirely permissible to examine all of the evidence, including a
claimant’s daily activities, to assess whether ‘testimony about the effects of [the claimant’s]
impairments was credible.’” Alvarado v. Colvin, 836 F.3d 744, 750 (7th Cir. 2016) (citation omitted).
As to Wendy’s last argument about the ALJ’s credibility determinations, which concerned
her boyfriend’s credibility, the ALJ’s credibility reasoning that the boyfriend crossed out certain
aspects on the function report to be consistent with Wendy’s report was not patently wrong because
this reasoning had support in the record.
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Medical Opinions
Next, Wendy takes issue with the ALJ’s assessment of her treating psychiatrist’s opinion.
For claims filed before March 2017, a treating physician’s opinion is entitled to controlling weight if
it is consistent with the record. Burmester, 920 F.3d at 512. As such, an ALJ cannot reject a treating
physician’s opinion without a sound explanation. Hardy v. Berryhill, 908 F.3d 309, 312 (7th Cir.
2018); 20 C.F.R. § 404.1527(c)(2).
Wendy submits that Dr. Serge Sorokin was her treating psychiatrist. She argues that the ALJ
criticized Dr. Sorokin’s October 2014 narrative synopsis of her mental health issues because Dr.
Sorokin did not articulate any work restrictions or offer an opinion about Wendy’s ability to work in
general. The ALJ did not reject his narrative, but noted that Dr. Sorokin simply did not give an
opinion on work restrictions.
Further, Wendy asserts that the ALJ’s conclusion regarding contact with a supervisor was
flawed. In making this argument, Wendy points to the testifying medical expert Dr. Heinemann’s
opinion that Wendy could interact with a supervisor. Specifically, at the October 2016 hearing,
Wendy’s counsel asked Dr. Heinemann why he thought Wendy’s interactions with her co-workers
and the public should be limited, but that there were no limitations on interactions with a supervisor.
Dr. Heinemann explained that interactions with a supervisor would be less frequent than co-workers
and that if the supervisor presented criticisms to Wendy in a factual manner, and not emotionally,
Wendy would be able to deal with a supervisor’s feedback. As such, the ALJ’s conclusion that
Wendy could interact with a supervisor is reasonable and supported by substantial evidence in the
record.
Wendy next argues that the ALJ assigned significant weight to Dr. Kogan’s physical RFC
assessment, even though Dr. Kogan’s assessment was inconsistent with the ALJ’s own findings.
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Wendy misunderstands the ALJ’s discussion related to Dr. Kogan’s report. The ALJ relied on Dr.
Kogan’s observations during Wendy’s examination noting that Dr. Kogan thought that Wendy had
no difficulties with respect to any physical activities. Yet, the ALJ qualified this statement that Dr.
Kogan’s opinion “did not appear to be an opinion in the sense of estimating what the claimant’s
capacities would be in a work setting.” And, as Wendy acknowledges, the ALJ did conclude that
Wendy had difficulties as to certain physical activities – despite Dr. Kogan’s report to the contrary.
The ALJ therefore did not err in this respect.
The remainder of Wendy’s arguments concerning the medical opinions and the ALJ’s
reliance on them are conclusory and unsubstantiated. Counsel merely asserts that the “ALJ’s
assignment of weight to the opinions of various non-examining state agency consultants is
completely arbitrary,” but does not explain which medical opinions and the resultant ALJ
conclusions she is challenging. Wendy, who is represented by counsel, has waived these
unsubstantiated arguments. See Crespo v. Colvin, 824 F.3d 667, 674 (7th Cir. 2016); see, e.g., Linda T. v.
Saul, Case No. 19 C 3950, 2020 WL 5210846, at *6 (N.D. Ill. Sept. 1, 2020) (Kim, J.).
Conclusion
For the foregoing reasons, the Court denies plaintiff’s motion for summary judgment [8] and
grants the Commissioner’s summary judgment motion [15]. The Court affirms the ALJ’s decision.
Civil case terminated.
IT IS SO ORDERED.
Date: 10/1/2020
Entered: _____________________________
SHARON JOHNSON COLEMAN
United States District Court Judge
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