Ingram v. Saul
Filing
24
MEMORANDUM Opinion and Order: For the reasons set forth in the attached Opinion, Plaintiff's motion for summary judgment is denied, and the Commissioner's motion is granted. The Commissioner's decision is affirmed. Civil case terminated. Signed by the Honorable Lisa A. Jensen on 1/7/2022. Mailed notice. (jxk)
Case: 3:20-cv-50327 Document #: 24 Filed: 01/07/22 Page 1 of 21 PageID #:757
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
Tina I.,
Plaintiff,
v.
Kilolo Kijakazi,
Acting Commissioner of Social Security, 1
Defendant.
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Case No. 3:20-cv-50327
Magistrate Judge Lisa A. Jensen
MEMORANDUM OPINION AND ORDER
Plaintiff Tina I. brings this action under 42 U.S.C. § 405(g) seeking reversal or a remand
of the decision denying her social security benefits. 2 For the reasons set forth below, the
Commissioner’s decision is affirmed.
I. Background
Plaintiff was diagnosed with multiple sclerosis (“MS”) in 2004. R. 415. She has been
receiving monthly Tysabri infusion treatments for the MS for over 10 years and she has been in a
long-term remission on this therapy. R. 415-16, 497, 527. She also has struggled with depression
and anxiety throughout her life, though she indicated that it worsened around 2011. R. 357, 376.
Plaintiff’s most recent job was working as a food service worker at Swedish American Hospital.
R. 232. She quit her job in 2016 because her MS symptoms made it too physically exhausting. R.
66. In 2019, Plaintiff began going to school full-time to pursue her bachelor’s degree. R. 53.
Kilolo Kijakazi has been substituted for Andrew Marshall Saul. Fed. R. Civ. P. 25(d).
The parties have consented to the jurisdiction of a United States Magistrate Judge for all proceedings
pursuant to 28 U.S.C. § 636(c).
1
2
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In April 2017, Plaintiff filed an application for supplemental security income alleging a
disability beginning on January 15, 2016 because of MS, chronic pain and fatigue, depression, and
anxiety. R. 83. She was 44 years old at the time she filed her application. Id. Her claim was denied
initially and upon reconsideration. R. 28. Thereafter, she filed a written request for a hearing. Id.
Following the hearing, an administrative law judge (“ALJ”) issued a decision in July 2019,
finding that Plaintiff was not disabled. R. 28-41. The ALJ found that Plaintiff had the severe
impairments of MS, major depressive disorder, generalized anxiety disorder, and obsessivecompulsive disorder. R. 30. The ALJ determined that Plaintiff’s impairments did not meet or
medically equal a listed impairment. Id. The ALJ concluded that Plaintiff had the residual
functional capacity (“RFC”) to perform light work except that she could never climb ladders, ropes
or scaffolds; occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl; have
occasional exposure to unprotected heights, vibration, and dangerous, heavy moving machinery;
understand, remember, and carry out simple and routine tasks; and use judgment limited to simplework related decisions. R. 32. The ALJ determined that Plaintiff could not perform her past
relevant work, but there were other jobs that existed in significant numbers in the national economy
that she could perform, including information clerk, office helper, and cashier II. R. 40.
II. Standard of Review
A reviewing court may enter judgment “affirming, modifying, or reversing the decision of
the [Commissioner], with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). If
supported by substantial evidence, the Commissioner’s factual findings are conclusive. Id.
Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (citations omitted). “An
ALJ need not specifically address every piece of evidence, but must provide a ‘logical bridge’
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between the evidence and his conclusions.” Butler v. Kijakazi, 4 F.4th 498, 501 (7th Cir. 2021)
(citations omitted). The reviewing court may not “reweigh the evidence, resolve debatable
evidentiary conflicts, determine credibility, or substitute [its] judgment for the ALJ’s
determination so long as substantial evidence supports it.” Gedatus v. Saul, 994 F.3d 893, 900 (7th
Cir. 2021).
III. Discussion
Plaintiff argues that the ALJ: (1) made a Step Five determination that was not supported
by substantial evidence; (2) erred in evaluating Plaintiff’s subjective symptoms; and (3)
improperly deferred to the state agency consultant’s opinion.
A. Step Five
The Commissioner has the burden at step five to show that work exists in significant
numbers in the national economy. 20 C.F.R. § 416.960(c)(2); see Overman v. Astrue, 546 F.3d
456, 464 (7th Cir. 2008). At the hearing, the ALJ heard testimony from a vocational expert (“VE”),
Dr. Marni South, who testified that given Plaintiff’s age, education, work experience, and RFC,
there were three jobs available to her: an information clerk with 1,014,000 jobs nationally, an
officer helper with 76,000 jobs nationally, and a cashier II with 3,500,000 jobs nationally. R. 76.
The ALJ relied on the VE’s testimony to conclude that there were jobs that existed in significant
numbers in the national economy that Plaintiff could perform. R. 40.
1. Job numbers
Plaintiff’s argument with respect to the ALJ’s step five determination is two-fold. First,
Plaintiff argues that, for each of the three jobs the VE listed, the VE did not properly identify that
those jobs exist in significant numbers in the national economy. Pl.’s Br. at 6-9, Dkt. 17.
Specifically, she contends that the job numbers provided by the VE were not offered to the specific
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hypothetical assessed by the ALJ but, rather, based on entire Bureau of Labor Statistics groupings,
which means that those numbers encompassed jobs with higher skill and exertional levels than
what was prescribed in the RFC. Pl.’s Rep. at 4, Dkt. 23.
The Commissioner argues, inter alia, that Plaintiff failed to preserve the issue for appeal
because she did not challenge the job numbers at the hearing. Def.’s Br. at 5, Dkt. 20. This is
consistent with Seventh Circuit opinions, which have on numerous occasions reinforced that a
claimant who fails to question or raise an objection to the VE’s testimony during the hearing
forfeits that objection on appeal. See Coyier v. Saul, 860 Fed. App’x. 426, 427-28 (7th Cir. 2021)
(unpublished) (“Coyier waived any challenge to the VE's testimony by failing to ask any questions
to reveal shortcomings in the job-number estimates.”); Collins v. Berryhill, 743 Fed. App’x. 21,
26 (7th Cir. 2018) (unpublished) (“Collins forfeited [his challenge to the VE’s testimony] by not
objecting at the hearing.”); Liskowitz v. Astrue, 559 F.3d 736, 744 (7th Cir. 2009) (“[Liskowitz]
forfeited [her argument about the VE’s sources] by failing to object to the VE’s testimony during
the hearing.”); Barrett v. Barnhart, 355 F.3d 1065, 1067 (7th Cir. 2004), on reh'g, 368 F.3d 691
(7th Cir. 2004) (“[B]ecause Barrett's lawyer did not question the basis for the [VE’s] testimony, .
. . any objection to it is forfeited.”); Donahue v. Barnhart, 279 F.3d 441, 446–47 (7th Cir. 2002)
(“When no one questions the [VE’s] foundation or reasoning [at the hearing], an ALJ is entitled to
accept the [VE’s] conclusion. . . . Raising a discrepancy only after the hearing, as Donahue's lawyer
did, is too late.”).
Plaintiff does not directly address the Commissioner’s argument but instead replies that
“[a] finding . . . based on unreliable VE testimony is equivalent to a finding that is not supported
by substantial evidence and must be vacated.” Pl.’s Reply at 4-5, Dkt. 23. Notably, Plaintiff’s
citation to Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007) does not address this issue at all,
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and the other two citations actually support the Commissioner’s argument. See Donahue v.
Barnhart, 279 F.3d 441, 446 (7th Cir. 2002) (“When no one questions the vocational expert's
foundation or reasoning, an ALJ is entitled to accept the vocational expert's conclusion.”)
(emphasis added); McKinnie v. Barnhart, 368 F.3d 907, 911 (7th Cir. 2004), abrogated on other
grounds by Biestek v. Berryhill, 139 S. Ct. 1148 (2019) (“If the basis of the vocational expert's
conclusions is questioned at the hearing then the ALJ should make an inquiry to find out whether
the purported expert's conclusions are reliable.”) (internal quotations omitted) (emphasis added).
Neither Plaintiff nor her counsel objected to the VE’s testimony about job numbers at the
administrative hearing and, while counsel did cross-examine the VE, none of the questions were
related to the job numbers that were provided. As a result, the ALJ was entitled to accept the VE’s
testimony. See Rebekah C. v. Saul, 20-2225, 2021 WL 3403539, at *3 (C.D. Ill. July 26, 2021)
(“Because Plaintiff waived any objection to the VE's testimony, the ALJ properly accepted the
VE's testimony as substantial evidence in his step five determination.”); Dahl v. Saul, 18-C-676,
2019 WL 4239829, at *3 (E.D. Wis. Sept. 6, 2019) (“On the record as it stands – that is, with no
questions asked that reveal any shortcoming in the [VE’s] data or reasoning – the ALJ was entitled
to reach the conclusion she did.”). The Court declines to find that the ALJ’s Step Five
determination was unsupported by substantial evidence on this basis.
2. Reasoning levels
Plaintiff’s other argument with respect to the ALJ’s step five determination is that the jobs
the VE listed require reasoning development levels 3 that conflict with the ALJ’s conclusion that
In the Dictionary of Occupational Titles (“DOT”), most occupations are evaluated using the General
Educational Development (“GED”) scale, which is composed of three divisions: reasoning development,
mathematical development, and language development. See Appendix C, § III, Dictionary of Occupational
Titles, https://www.dol.gov/agencies/oalj/PUBLIC/DOT/REFERENCES/DOTAPPC. The GED scale
includes six levels of reasoning development, ranging from level 1 (the least complex level) to level 6 (the
most complex level). Id. The DOT assigns a reasoning level to most occupations. Social Security
3
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she retained the capacity to perform simple and routine tasks. Pl.’s Br. at 7-9, Dkt. 17. Plaintiff
cites to language in the VE handbook that recognizes an apparent conflict 4 between the RFC to
perform simple, repetitive tasks, and the demands of level 3 reasoning. Id. at 8 (citing Social
Security
Administration, Vocational
Expert
Handbook,
39
(Aug.
2017),
https://www.ssa.gov/appeals/public_experts/Vocational_Experts_(VE )_Handbook-508.pdf).
Regarding the office helper position, Plaintiff states: “[T]his job is problematic as the DOT
describes the job with ‘V’ under work settings, defined as performing a variety of duties despite
the RFC of simple and routine tasks.” Id. at 9. However, the Commissioner indicates in her brief
that the reasoning level for this position is two, and the Court independently confirmed this
information. Def.’s Br. at 4, Dkt. 20; see OALJ LAW LIBRARY, DOT, Clerical and Sales
Occupations
219.362-050
to
243.367-018,
available
at
https://www.dol.gov/agencies/oalj/PUBLIC/DOT/REFERENCES/DOT02B. Yet, even after the
Commissioner brought this to Plaintiff’s attention, Plaintiff did not argue in her reply brief that a
job with a reasoning level of two conflicts with the RFC assessed by the ALJ. As such, the Court
finds that there is no conflict between the reasoning level of the office helper position and the
ALJ’s assessed RFC.
With respect to the cashier II position, Plaintiff points out that the DOT lists a reasoning
level of three. Pl.’s Br. at 9, Dkt. 17. A reasoning level of three means that the claimant must be
able to “[a]pply commonsense understanding to carry out instructions furnished in written, oral,
Administration, Vocational
Expert
Handbook,
39
(Aug.
2017),
https://www.ssa.gov/appeals/public_experts/Vocational_Experts_(VE )_Handbook-508.pdf.
4
Although Plaintiff does not elaborate on this in her opening or reply briefs, the term “apparent conflict”
invokes Social Security Ruling 00-4p, which states that, to the extent there is an apparent conflict between
the DOT and the VE’s testimony, an ALJ is required to obtain an explanation for that conflict from the VE.
If a plaintiff does not identify any conflict at the administrative hearing, she would have to show on appeal
that the conflict was obvious enough that the ALJ should have picked up on it without any assistance. See
Surprise v. Saul, 968 F.3d 658, 662 (7th Cir. 2020).
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or diagrammatic form” and “[d]eal with problems involving several concrete variables in or from
standardized
situations.”
Appendix
C,
§
III,
Dictionary of Occupational Titles,
https://www.dol.gov/agencies/oalj/PUBLIC/DOT/REFERENCES/DOTAPPC. As noted above,
Plaintiff asserts that, according to the VE handbook, a reasoning level of three poses an apparent
conflict with the RFC to perform simple and routine tasks. The Commissioner argues that this is
not consistent with Seventh Circuit precedent and that the handbook is not binding on the Social
Security Administration, nor does it overrule Seventh Circuit precedent. Def.’s Br. at 3-4, Dkt. 20.
Plaintiff responds that the Seventh Circuit cases to which the Commissioner refers pre-date the
publication of the 2017 VE handbook and, although it is not binding, courts can still consider its
guidance. Pl.’s Reply at 3, Dkt. 23.
The Seventh Circuit case that the Commissioner relies on to support her argument that
there is no apparent conflict is Sawyer v. Colvin, 512 Fed. App’x. 603 (7th Cir. 2013)
(unpublished). There, the court held that restricting a claimant to “simple tasks” and performing a
job that had a reasoning level of three did not pose an apparent conflict. Id. at 610-11; see also
Terry v. Astrue, 580 F.3d 471, 478 (7th Cir. 2009). The Commissioner is correct that the VE
handbook is not binding on this Court. See Medeiros v. Saul, CV 19-11079-LTS, 2020 WL
4583871, at *10 (D. Mass. Aug. 10, 2020); Leo v. Saul, 1:18-CV-00977-LF, 2020 WL 888600, at
*7 (D.N.M. Feb. 24, 2020). Rather, this Court is bound by Seventh Circuit pronouncements of
law. Plaintiff attempts to invalidate Sawyer by pointing out that it pre-dates the publication of the
VE handbook, but the Court is unconvinced by this argument because recently, several years after
the publication of the handbook, the Seventh Circuit approvingly reiterated its holding in Sawyer.
See Surprise v. Saul, 968 F.3d 658, 663 (7th Cir. 2020) (“In fact, we have gone as far as to say that
there is no apparent conflict between a simple tasks limitations and level 3 reasoning.”) (citing
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Sawyer, 512 F. App'x at 610-11). Therefore, the Court finds that there is no apparent conflict
between the reasoning level of the cashier II position and the ALJ’s assessed RFC.
Finally, Plaintiff asserts that there is an apparent conflict between the level four reasoning
assigned to the information clerk position and the ALJ’s conclusion that she retained the capacity
to perform simple and routine tasks. Pl.’s Br. at 7, Dkt. 17. Level four reasoning is defined as the
ability to “[a]pply principles of rational systems to solve practical problems and deal with a variety
of concrete variables in situations where only limited standardization exists” and “[i]nterpret a
variety of instructions furnished in written, oral, diagrammatic, or schedule form.” Appendix
C, Dictionary of Occupational Titles,
https://www.dol.gov/agencies/oalj/PUBLIC/DOT/REFERENCES/DOTAPPC.
Examples
of
rational systems include bookkeeping, internal combustion engines, electric wiring systems, house
building, farm management, and navigation. Id. According to the DOT, an information clerk, 237–
367–018:
Provides travel information for bus or train patrons: Answers inquiries regarding
departures, arrivals, stops, and destinations of scheduled buses or trains. Describes
routes, services, and accommodations available. Furnishes patrons with timetables
and travel literature. Computes and quotes rates for interline trips, group tours, and
special discounts for children and military personnel, using rate tables.
Informational
Dictionary of Occupational Titles,
clerk,
https://www.dol.gov/agencies/oalj/PUBLIC/DOT/REFERENCES/DOT02B.
When a VE's testimony about available jobs appears to conflict with the dictionary, SSR
00-4p requires an ALJ to obtain a reasonable explanation for the conflict. Givens v. Colvin, No.
13-2000, 551 Fed. App’x 855, 863 (7th Cir. Dec. 17, 2013) (unpublished) (quoting Overman, 546
F.3d at 463). However, if a claimant does not object to the VE's testimony at the hearing, the
conflict between that testimony and the dictionary must be so apparent or obvious that the ALJ
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should
have
picked
up
on
[it]
without
any
assistance. Terry, 580
F.3d
at
478 (quoting Overman, 546 F.3d at 463); see Purcell v. Colvin, 13 C 2057, 2014 WL 4403174, at
*14 (N.D. Ill. Sept. 3, 2014). Because Plaintiff’s attorney did not object to the VE’s testimony
about the information clerk position during the hearing, the question is whether there was such an
obvious conflict between the VE’s testimony and the DOT such that the ALJ should have picked
up on it. 5
The Seventh Circuit has explained that “[GED] levels focus on the worker's educational
background, not on-the-job requirements.” Givens, 551 Fed. App’x. at 863. As such, the Seventh
Circuit has found that a conflict between the VE’s testimony and the DOT is not obvious when (1)
the abilities listed under the reasoning level are not relevant to the actual job duties of the position
or (2) when the record does not demonstrate that the claimant could not perform a job at that
reasoning level. See Givens, 551 Fed. App’x. at 862-63; see also Vanhphenh S. v. Saul, 18 CV
6121, 2021 WL 1315633, at *6 (N.D. Ill. Apr. 8, 2021); Purcell, 2014 WL 4403174, at *14-15.
Following the Seventh Circuit in Givens, the Court finds that there was no apparent conflict
for both reasons. First, although not cited by either party, this Court is persuaded by the analysis
in Purcell v. Colvin, 13 C 2057, 2014 WL 4403174 (N.D. Ill. Sept. 3, 2014). There, the court found
that most of the abilities listed under a GED reasoning level four are not relevant to the actual job
duties of an information clerk, and this Court agrees. Id. at *15. Second, it is not obvious from the
evidence before the ALJ that Plaintiff would be incapable of performing the tasks required in a
position with a reasoning level of four. In fact, the record reflects that Plaintiff has completed high
school, earned an associate degree, and has been pursuing a bachelor’s degree from a private
With respect to the reasoning levels, the Commissioner argues that, because Plaintiff failed to offer an
objection on this issue, she did not preserve the issue for challenge on appeal. Def.’s Br. at 4, Dkt. 20.
However, as explained above, the Seventh Circuit has set out a standard for evaluating whether the ALJ
should have picked up on a conflict even when the claimant does not object at the hearing.
5
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university. R. 52-53. She also reported that she had been trying to learn Spanish as a hobby. R.
228; see Hopper v. Astrue, 09 C 7884, 2011 WL 1813007, at *9 (N.D. Ill. May 4, 2011) (“[T]he
record suggests that Ms. Hopper does have the skills to perform jobs with a reasoning level of
three or four: she completed high school and two years of college and has the cognitive capacity
to follow simple instructions.”). Nor does Plaintiff point to any evidence of record that suggests
she is precluded from performing such tasks. See Vanhphenh S., 2021 WL 1315633, at *6 (“Nor
does Claimant offer any evidence in either her memorandum or reply that explains why she is in
fact precluded from performing such tasks.”); Hopper, 2011 WL 1813007, at *9 (“In the absence
of some evidence that calls into question Ms. Hopper's reasoning or cognitive abilities, Ms.
Hopper's argument fails.”).
Moreover, other courts have found that a restriction to understand, remember, and carry
out simple and routine tasks, like that found in Plaintiff’s RFC, does not innately conflict with a
reasoning level of four. See Olson v. Berryhill, 15-CV-172-WMC, 2017 WL 4217175, at *4 (W.D.
Wis. Sept. 21, 2017) (affirming an ALJ decision in which the RFC limited the claimant to
“understand, carryout and remember routine work with a [GED] reasoning level of 4 or less”);
Hopper, 2011 WL 1813007, at *9 (affirming an ALJ decision in which the RFC limited the
claimant to “simple, routine and repetitive tasks” and the jobs identified by the VE required a
reasoning level of three or four).
Given the evidence and analysis above, the Court concludes that any potential conflict
between the VE’s testimony and the DOT was not so apparent that the ALJ should have picked up
on it without any assistance. As such, the Court finds no error in the ALJ’s reliance on the VE’s
testimony and the conclusion that Plaintiff could perform the information clerk position.
B. Subjective Symptoms
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Plaintiff argues that the ALJ erred in evaluating her subjective symptoms. An ALJ must
justify her evaluation of a plaintiff’s subjective allegations with “specific reasons supported by the
record.” Pepper v. Colvin, 712 F.3d 351, 367 (7th Cir. 2013). “Because the ALJ is in the best
position to determine a witness’s truthfulness,” an ALJ’s assessment should not be overturned
“unless it is patently wrong.” Morrison v. Saul, 806 F. App’x 469, 474 (7th Cir. 2020)
(unpublished) (citing Shideler v. Astrue, 688 F.3d 306, 310-11 (7th Cir. 2012)). An ALJ’s
assessment is patently wrong if the decision lacks any explanation or support. Cullinan v. Berryhill,
878 F.3d 598, 603 (7th Cir. 2017). Not all of the ALJ’s reasons must be valid in a subjective
symptom analysis, “as long as enough of them are.” Halsell v. Astrue, 357 F. App’x 717, 722 (7th
Cir. 2009) (unpublished) (emphasis in original).
Here, the ALJ listed numerous reasons for finding that Plaintiff’s subjective symptoms
were not as severe as she alleged, including that: even when Plaintiff skipped a couple of her
infusion treatments, she was still doing well; her MRIs during the relevant period showed no new
changes; despite her allegations of totally disabling symptoms, none of her treating or examining
physicians indicated she was disabled or had limitations greater than those determined in the ALJ’s
decision; she frequently denied new symptoms and often reported feeling well; her physical
examinations were essentially normal; despite her perceived decrease in mental abilities, her
mental status examinations were normal; and her physicians consistently reported a normal gait.
R. 34, 35, 37-39. Plaintiff does not contest all of the bases used by the ALJ to support the symptoms
evaluation; in fact, the ALJ includes mostly sound reasons supported by the record to discount
Plaintiff’s allegations. With respect to the ALJ’s bases that Plaintiff does contest, the Court will
address each, as set forth below.
1. Daily activities
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Plaintiff argues that the ALJ inappropriately equated the ability to attend school part-time 6
and go to counseling with the ability to do work. Pl.’s Br. at 10, Dkt. 17. Plaintiff asserts that she
only attends two classes three days a week, her classes were slipping due to absenteeism, she sleeps
on her days off, the only meals she makes are her children’s school lunches, and her counseling
sessions lasted only two hours. Id. The Commissioner responds that the ALJ did not equate
Plaintiff’s daily activities with her ability to work, but rather pointed out that her most limiting
claims were belied by an active lifestyle. Def.’s Br. at 8, Dkt. 20. The Commissioner also asserts
that, contrary to Plaintiff’s argument, the ALJ did consider the limitations associated with her daily
activities. Id.
The Seventh Circuit has stated that a claimant’s daily activities are a factor that “may be
used to discredit a claimant’s testimony.” Cullinan, 878 F.3d at 603. To that end, the ALJ
considered that Plaintiff was going to school full-time, attending counseling two to four times a
week, taking her children to school, making lunches for her children before school, cooking dinner
for her family, and attending her children’s soccer games and track meets. R. 33-34, 38. With
respect to Plaintiff’s alleged limitations, the ALJ did consider Plaintiff’s testimony that she had
“down days” to recover after a day at school but found that this allegation was not corroborated in
the record. R. 33. Despite Plaintiff’s assertions that her partner does the cooking, the ALJ stated
that Plaintiff also does the cooking on her non-school days, R. 34, and the record clearly supports
that she has been doing the cooking for her family throughout the relevant period. See R. 61, 225,
242, 262, 264. After all of these considerations, the ALJ concluded that Plaintiff’s “reports of daily
functioning certainly seems [sic] far greater than what one might expect for a totally disabled
individual.” R. 34. As such, the ALJ properly evaluated Plaintiff’s daily activities and found that
Plaintiff testified that she was going to school part-time when she was earning her associate’s degree, but
at the time of the hearing she was attending school full-time to pursue her bachelor’s degree. R. 52-53.
6
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they discredited her testimony. Therefore, the Court finds the ALJ’s consideration of Plaintiff’s
daily activities is supported by substantial evidence.
2. Fatigue and rest
Plaintiff argues that the ALJ failed to consider her side effects of fatigue and needing to
rest in the context of this case. Pl.’s Br. at 11, Dkt. 17. The Commissioner argues that the ALJ did
expressly consider such testimony; the ALJ simply chose not to accept Plaintiff’s testimony
wholesale and was not required to do so. Def.’s Br. at 8-9, Dkt. 20.
Contrary to Plaintiff’s argument, the ALJ did expressly consider her allegations of fatigue
and needing to rest. The ALJ discussed Plaintiff’s testimony that she has a “down day” after a day
of school in order to recover from the exhaustion, her complaints of fatigue while walking, her
assertion that she sometimes needs to rest for a certain period of time, and her testimony about
fatigue as a possible side effect of her medication. R. 33-34. However, as the Commissioner noted,
an ALJ is not required to accept a claimant’s testimony if it is not consistent with the other
evidence. Elder v. Berryhill, 774 Fed. App’x. 980, 983 (7th Cir. 2019) (unpublished) (“[A]n ALJ
may discount an applicant’s testimony if . . . other evidence in the record provides a basis for doing
so.”).
Further, in her written opinion, the ALJ highlights several pieces of evidence in the record
that provided a basis for discounting Plaintiff’s testimony about her fatigue and needing to rest.
With respect to the testimony about needing a “down day,” the ALJ noted that this was not reported
or corroborated in the treatment notes. R. 33. Regarding her complaints of fatigue while walking,
the ALJ stated that Plaintiff also had denied problems with walking. Id. In terms of medication
side effects, the ALJ highlighted that Plaintiff testified to having “a little bit of fatigue.” R. 34. The
ALJ also discussed the evidence throughout the record that Plaintiff had a normal gait without a
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need for an assistive device and the records reflecting Plaintiff’s contention that exercise helped
her pain management. R. 36, 38. In short, the ALJ properly considered the record evidence and
chose to discount Plaintiff’s testimony as a result. For these reasons, the ALJ’s assessment of
Plaintiff’s allegations about fatigue is supported by substantial evidence.
3. Falls
The ALJ noted that, “[t]hough it is not documented in the treatment notes, the claimant
contends that she has fallen 5-6 times in the last couple years.” R. 35. Plaintiff argues that, contrary
to the ALJ’s finding, “one record does reference sensory loss and ataxia.” Pl.’s Br. at 11, Dkt. 17.
The Commissioner responds that Plaintiff’s argument effectively makes the ALJ’s point: there was
only one reference to sensory loss despite her many examinations where such symptoms were not
present. Def.’s Br. at 9, Dkt. 20.
Notably, Plaintiff does not argue that the ALJ erred in finding that falls were not
documented in the record. Rather, she points to a single set of treatment notes, which does not
support her argument, either, as it indicates that the sensory examination of her legs was
completely normal and makes no mention of ataxia. R. 499. Additionally, the ALJ acknowledged
Plaintiff’s testimony that she had told her neurologist about her leg pain and spasticity. However,
the ALJ pointed out that Plaintiff’s physical examinations were essentially normal but for
diminished sensation for vibration in one of her arms. R. 35. In other words, treatment notes
reflected no sensory issues, including spasticity, in Plaintiff’s legs throughout the relevant period.
See R. 366, 417-18, 447, 499, 530-31. The Court finds that the ALJ properly evaluated Plaintiff’s
testimony along with the record evidence. Therefore, the ALJ’s assessment of Plaintiff’s alleged
falls is supported by substantial evidence.
4. Vision loss
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In her decision, the ALJ wrote: “The claimant also alleged having . . . vision loss but the
treatment notes do not appear to suggest that she complained of these issues or was evaluated for
these complaints during the period at issue.” R. 38. Plaintiff argues that the ALJ’s statement that
there is no evidence of complaints of vision loss is incorrect and points to one treatment note in
the record. Pl.’s Br. at 11, Dkt. 17. The Commissioner argues it is telling that Plaintiff points to
just one reference in the record despite her many examinations where such symptoms were not
present. Def.’s Br. at 9, Dkt. 20.
The note that Plaintiff cites is one that appears in many of the treatment notes from her
neurologist, and it states that Plaintiff “[n]oticed [MS] symptoms 5 years prior” to her diagnosis
in 2004, including “decreased vision in both eyes.” R. 496; see also 415, 420, 444. Contrary to
Plaintiff’s argument, this is consistent with the ALJ’s assessment. This statement in the treatment
notes indicates that the vision issues were one of the symptoms she identified prior to her diagnosis
in 2004; it does not suggest that she was actively complaining of vision issues at her neurology
appointments. Further, the ALJ is correct that there is nothing in the record to show that she was
ever evaluated for vision issues during the relevant period. Rather, treatment notes (including from
Plaintiff’s neurologist) demonstrate that Plaintiff had normal vision throughout the period at issue.
R. 335-36, 417, 421, 445, 459, 498, 528. As such, the Court concludes that the ALJ’s assessment
of Plaintiff’s alleged vision loss is supported by substantial evidence.
5. Obesity
Plaintiff also argues that neither the ALJ nor the state agency doctors considered her
obesity and the aggregate effect of her issues. Pl.’s Br. at 11-12, Dkt. 17. The Commissioner argues
that Plaintiff does not attempt to show how she was further limited by her obesity and, further, that
she is at the lowest end of the obesity spectrum. Def.’s Br. at 9, Dkt. 20.
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The Court finds that, although it is true that the ALJ and agency doctors did not consider
Plaintiff’s obesity, the oversight was harmless. The Seventh Circuit has held that failure to
explicitly consider a plaintiff's obesity is harmless if the plaintiff did not explain how
his obesity hampers her ability to work. See Rennaker v. Saul, 820 F. App'x 474, 481 (7th Cir.
2020); Stepp v. Colvin, 795 F.3d 711, 720 (7th Cir. 2015). Plaintiff's initial claim for disability did
not include obesity and she points to nothing in the record to support her theory that
her obesity would exacerbate her alleged symptoms of sensory loss and ataxia. According to the
record, she did not seek treatment for obesity, report any limiting effects of obesity, or testify
that obesity affects her in any way. See Rennaker, 820 F. App'x at 481. As a result, any
consideration of obesity by the ALJ would have been speculative and the ALJ's failure to consider
Plaintiff's obesity does not warrant a remand. See Mark N. v. Saul, 19 CV 50261, 2021 WL
1222873, at *5 (N.D. Ill. Apr. 1, 2021).
C. State agency consultants
Finally, Plaintiff argues that the ALJ deferred greatly to the state agency opinions on her
mental health even though the opinions were crafted in September 2017, prior to much of her
mental health treatment. Pl.’s Br. at 12-13, Dkt. 17. She acknowledges the Seventh Circuit case
law stating that not all evidence following an agency doctor’s opinion necessitates a remand, but
she contends that there is evidence 7 in the record that changed the picture so much that the ALJ
The specific pieces of evidence Plaintiff references in her brief are: medication adjustments including
paroxetine being increased; a GAF score of 40; notes about struggling with maintaining her thought process;
notation of her depression being “somewhat” controlled; and a post-decision RFC by her counselor. Id. at
12. Plaintiff also cites to several places in the record, which include: the mental RFC questionnaire from
her counselor dated either April or August 2019, R. 16-23; handwritten notes from Plaintiff’s previous
counselor in 2017, R. 369-75; treatment notes from Aspen Counseling between July 2017 and January
2018, R. 376-85; treatment notes from Beloit Health System dated April 2018, R. 394-407; treatment notes
from Aspen Counseling between July 2017 and July 2019, R. 465-80; and treatment notes from Rosecrance
between September 2018 and February 2019, R. 541-650.
7
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erred by continuing to rely on outdated assessments. Id. (citing Stage v. Colvin, 812 F.3d 1121,
1125 (7th Cir. 2016)). The Commissioner argues that the later evidence cited by Plaintiff did not
“change the picture,” but rather corroborated the existence and symptoms of previously considered
conditions. Def.’s Br. at 9-10, Dkt. 20.
It is true that the Seventh Circuit has stated that “[a]n ALJ should not rely on an outdated
assessment if later evidence containing new, significant medical diagnoses reasonably could have
changed the reviewing physician's opinion.” Moreno v. Berryhill, 882 F.3d 722, 728 (7th Cir.
2018), as amended on reh'g (Apr. 13, 2018). However, “if an ALJ were required to update the
record any time a claimant continued to receive treatment, a case might never end.” Keys v.
Berryhill, 679 Fed. App’x. 477, 481 (7th Cir. 2017) (unpublished) (citing Scheck v. Barnhart, 357
F.3d 697, 702 (7th Cir. 2004)). As such, the Seventh Circuit has stated that the claimant must
provide evidence and explain how the evidence undermines the agency doctor’s opinion. Keys,
679 Fed. App’x. at 481. If the claimant fails to do so, it is not error for the ALJ to rely on the
opinion. Id.
As an initial matter, contrary to Plaintiff’s characterization, the reconsideration level state
agency opinions on which the ALJ relies were issued in March 2018, not September 2017. Yet
some of Plaintiff’s references and citations to the record are from before March 2018 and, so, are
records that the reconsideration level agency doctor would have considered in their assessment.
See R. 369-85 (including discussion of paroxetine dosage being increased), 465-72. The Court will
proceed to evaluate the remaining records cited by Plaintiff that came after the March 2018 opinion
to determine whether they changed the picture enough that the Court should find the ALJ erred in
relying on those outdated assessments.
1. Mental RFC questionnaire
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Plaintiff’s first citation to evidence that “changed the picture” is a mental RFC
questionnaire completed by her counselor. 8 See R. 16-23. Plaintiff refers to this in her brief as a
“post-decision RFC by her counselor supportive of disability.” Pl.’s Br. at 12, Dkt. 17. However,
Plaintiff does not explain how this “post-decision” evidence is relevant here. At the hearing on
April 8, 2019, Plaintiff’s counsel had requested that the ALJ leave the record open for an additional
14 days to get outstanding records from State Line Counseling services admitted into the record,
and the ALJ granted this request. R. 50. However, Plaintiff failed to submit any documents during
the period set by the ALJ. Nor does she ask this Court to find good cause for failing to incorporate
such evidence into the record. See 42 U.S.C. § 405(g); Schmidt v. Barnhart, 395 F.3d 737, 742
(7th Cir. 2005). As such, the “post-decision RFC” questionnaire cannot provide a basis for remand.
2. Beloit Health System notes
One of Plaintiff’s citations is to a set of treatment notes from the Beloit Health System
from April 2018. R. 394-407. The Commissioner contends that these records offer nothing to
bolster Plaintiff’s argument and she does not explain why this evidence “changed the picture.”
Def.’s Br. at 10, Dkt. 20. In looking through these documents, the Court finds nothing even related
to mental health. As such, the Court concludes that this evidence does not necessitate a remand.
3. Aspen Counseling notes
The date on the questionnaire appears to indicate it was filled out on April 26, 2019. See R. 23. However,
there is not a consensus about this date. In the Appeals Council’s denial of Plaintiff’s request for review,
they state that the questionnaire is dated August 26, 2019. See R. 2. Confusingly, in the background section
of Plaintiff’s opening brief, she states that this questionnaire is dated April 26, 2019, but later in the brief
refers to the questionnaire as being “post-decision,” which means it would have been completed after July
2019. See Pl.’s Br. at 2, 12, Dkt. 17; R. 25. Although it is not clear which date is accurate, it is clear that
the questionnaire was filled out after the period in which the ALJ had left the administrative record open
and that Plaintiff submitted it to the Appeals Council with her request for review of the ALJ’s decision. See
id. at 2.
8
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Another citation Plaintiff makes is to a set of treatment notes from Aspen Counseling
between May 2018 and January 2019. R. 473-80. The May 2018 notes indicate that Plaintiff was
experiencing depressive symptoms, R. 473, and by the end of January 2019, she reported feeling
frustrated but “okay,” R. 479. The counselor noted that her mood was not as bad as in the past and
her motivation seemed okay, and Plaintiff reported sleeping and eating well. Id. The question is
whether these treatment notes reveal any dramatic changes from the earlier evidence considered
by the agency doctor. The earlier evidence that was considered by the agency doctor, specifically
in the few months prior to the reconsideration level evaluation, shows that Plaintiff reported feeling
much more depressed, her counselor observed a flat affect with constricted range and intensity,
and her medication for depression and anxiety was increased. R. 380. In other words, comparing
the post-reconsideration level opinions with the earlier evidence tends to indicate that Plaintiff’s
mental health had improved to some degree after the reconsideration level determination. As such,
the Court concludes that the evidence did not constitute a dramatic change from the earlier
evidence, and the ALJ was justified in relying on the opinion.
4. “Somewhat controlled” depression
One of the specific pieces of evidence that Plaintiff refers to is the notation that her
depression was only “somewhat controlled.” R. 498. The Court acknowledges that the record
reflects that Plaintiff’s neurologist had been making such notes since September 2017 until the
most recent treatment note in January 2019. R. 416, 421, 498, 528. Because the neurologist had
been making the exact same note for years, Plaintiff cannot say that this “changed the picture” at
all. The Court concludes that this evidence does not necessitate a remand.
5. GAF score
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Plaintiff specifically references her GAF score of 40 as evidence that the state agency
doctor’s opinion was outdated. Pl.’s Br. at 12, Dkt. 17. She also references this score in the
background section of her opening brief and again in her reply brief. See id. at 2; Pl.’s Reply at 7,
Dkt. 23. However, in all three places where Plaintiff references the GAF score, the citations that
follow do not reflect that information. Moreover, the Court was unable to find a note in the record
about any sort of GAF score. As a result, the Court cannot find that this alleged evidence would
justify a remand.
6. Rosecrance notes
Plaintiff’s final citation is to her substance abuse treatment notes from Rosecrance between
September 2018 and February 2019. R. 541-650. In September 2018, Plaintiff was involved in
substance abuse treatment at Rosecrance and did indicate that she was struggling with maintaining
her thought process. R. 541-42. But, by the time she was discharged in October 2018, she reported
“feeling good,” was eating and sleeping well, and was observed to have a bright affect. R. 588. In
November 2018 Plaintiff experienced a relapse, R. 598, but by January 2019, she was noted as
demonstrating application of her recovery skills and was recommended to step down to outpatient
treatment care groups meeting just once weekly. R. 603. All of the treatment notes in the following
month indicated that Plaintiff was doing well and continued to progress. R. 606, 647, 649. As a
result, the Court concludes that the records from Rosecrance following the reconsideration level
opinions do not “change the picture” so much that the Court can conclude that the ALJ erred in
relying on the Agency opinion from 2018. The ALJ was justified in relying on the opinion.
For all of the reasons discussed above, the Court finds that none of the evidence cited by
Plaintiff would have “changed the picture so much” that a remand is warranted.
IV. Conclusion
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For the foregoing reasons, Plaintiff’s motion for summary judgment is denied, the
Commissioner’s motion is granted, and the ALJ’s decision is affirmed.
Date: January 7, 2022
By:
21
______________________
Lisa A. Jensen
United States Magistrate Judge
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