Avila v. Kijakazi

Filing 26

Order signed by the Honorable Laura K. McNally on 11/26/2024. For the reasons stated in the accompanying Order, the Court denies Plaintiff's motion for summary judgment seeking to reverse and remand the ALJ's decision (D.E. 14) and grants Defendant's motion for summary judgment. (D.E. 20). Enter Judgment. Civil case terminated. Mailed notice (sxw)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
TIFFANY A.,1
Plainti?,
v.
MARTIN O’MALLEY,
Commissioner of Social Security, 2
Defendant.

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No. 22 C 50221
Magistrate Judge Laura K. McNally

ORDER 3
Before the Court is Plainti? Ti?any A.’s memorandum in support of summary
judgment, asking the Court to remand the Administrative Law Judge’s (“ALJ”) decision
denying her applications for disability bene?ts (D.E. 14: Pl. Mem. in Support of Summ,
J., “Pl. Mem.”) and Defendant’s response in support of summary judgment (D.E. 20:
Def. Mot. for Summ. J., “Resp.”).

The Court in this order is referring to Plaintiff by her first name and first initial of her last
name in compliance with Internal Operating Procedure No. 22 of this Court.

1

The Court substitutes Martin O’Malley for his predecessor, Kilolo Kijakazi, as the proper
defendant in this action pursuant to Federal Rule of Civil Procedure 25(d) (a public officer’s
successor is automatically substituted as a party).
2

On August 16, 2022, by consent of the parties and pursuant to 28 U.S.C. § 636(c) and Local
Rule 73.1, this case was reassigned to the magistrate judge for all proceedings, including entry
of final judgment. (D.E. 8.)
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I.

Procedural History
Plainti? applied for disability insurance bene?ts and supplemental security

income on April 9, 2019, alleging disability beginning April 2, 2019. (R. 15.) The ALJ
held a hearing on April 27, 2021, and on May 14, 2021, the ALJ issued a written decision
denying Plainti?’s application, ?nding her not disabled under the Social Security Act
(the “Act”). 4 This appeal followed. For the reasons discussed herein, Plainti?’s motion is
denied and the Commissioner’s motion is granted.
II.

The ALJ Decision
The ALJ applied the Social Security Administration’s (“SSA”) ?ve-step sequential

evaluation process to Plainti?’s claims. At Step One, the ALJ found that the Plainti? had
not engaged in Substantial Gainful Activity since her alleged onset date (R. 22.) 5 At Step
Two, the ALJ determined that Plainti? had the severe impairments of complex regional
pain syndrome (the “pain syndrome”)/degenerative join disease right foot; 6 asthma;
seizures; and migraines. (Id.) At Step Three, the ALJ found that Plainti?’s impairments

The Appeals Council subsequently denied review of the opinion (R. 1), making the ALJ’s
decision the final decision of the Commissioner. Bertaud v. O’Malley, 88 F.4th 1242, 1244 (7th Cir.
2023).

4

Plaintiff’s impairment stems from a September 2017 workplace accident at UPS, where a piece
of heavy machinery rolled over her foot. (Pl. Mem. at 2.)

5

Complex regional pain syndrome is a form of chronic pain that usually affects an arm or a leg.
It typically develops after an injury, surgery, stroke or heart attack. The pain is out of
proportion to the severity of the initial injury. https://www.mayoclinic.org/diseasesconditions/crps-complex-regional-pain-syndrome/symptoms-causes/syc-20371151 visited on
11/14/24.
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alone or in combination did not meet or medically equal a Listing. (R. 23.) The ALJ
assessed Plainti? as having a residual functional capacity to perform sedentary work
except that she can “never climb ladders, ropes, or sca?olds but can occasionally climb
ramps and stairs with railing, occasional squatting and must avoid concentrated
exposure to pulmonary irritants and have no exposure to hazards including dangerous
moving machinery and unprotected heights, no driving, and no use of foot controls
with the right foot. [Plainti?] must avoid concentrated exposure to intense bright lights
and loud noise environments.” (R. 24.)
At Step Four, the ALJ found Plainti? was unable to perform her past relevant
work as a fast-food restaurant manager, and at Step Five she found that there were
other jobs in the national economy that matched Plainti?’s residual functional capacity.
(R. 29-30.) Accordingly, the ALJ concluded that Plainti? was not disabled. (R. 30.)
III.

Legal Standard
Under the Social Security 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). In order to determine whether a plainti? is disabled,
the ALJ considers the following ?ve questions in order: (1) Is the plainti? presently
unemployed? (2) Does the plainti? have a severe impairment? (3) Does the impairment
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meet or medically equal one of a list of speci?c impairments enumerated in the
regulations? (4) Is the plainti? unable to perform her former occupation? and (5) Is the
plainti? unable to perform any other work? 20 C.F.R. § 416.920(a)(4). An a?rmative
answer at either step three or step ?ve leads to a ?nding that the plainti? is disabled.
Young v. Sec'y of Health & Human Servs., 957 F.2d 386, 389 (7th Cir. 1992). A negative
answer at any step, other than at step three, precludes a ?nding of disability. Id. The
plainti? bears the burden of proof at steps one to four. Id. Once the plainti? shows an
inability to perform past work, the burden then shifts to the Commissioner to show the
plainti?'s ability to engage in other work existing in signi?cant numbers in the national
economy. Id.
The Court does not “merely rubber stamp the ALJ's decision on judicial review.”
Prill v. Kijakazi, 23 F.4th 738, 746 (7th Cir. 2022) An ALJ’s decision will be a?rmed if it is
supported by “substantial evidence,” which means “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill,
587 U.S. 97, 103 (2019). “[T]he threshold for such evidentiary su?ciency is not high.” Id.
As the Seventh Circuit has made clear, ALJs are “subject to only the most minimal of
articulation requirements” and “need not address every piece or category of evidence
identi?ed by a claimant, fully summarize the record, or cite support for every
proposition or chain of reasoning.” Warnell v. O’Malley, 97 F.4th 1050, 1053 (7th Cir.
2024). “All we require is that ALJs provide an explanation for how the evidence leads to
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their conclusions that is su?cient to allow us, as a reviewing court, to assess the validity
of the agency’s ultimate ?ndings and a?ord the appellant meaningful judicial review.”
Id. at 1054. The Seventh Circuit added that “[a]t times, we have put this in the shorthand
terms of saying an ALJ needs to provide a ‘logical bridge from the evidence to his
conclusion.’” Id. (citation omitted). The Seventh Circuit further has clari?ed that district
courts, on review of ALJ decisions in Social Security appeals, are subject to a similar
minimal articulation requirement: “A district (or magistrate) judge need only supply the
parties . . . with enough information to follow the material reasoning underpinning a
decision.” Morales v. O’Malley, 103 F.4th 469, 471 (7th Cir. 2024). The district court’s
review of the ALJ’s opinion “will not reweigh the evidence, resolve debatable
evidentiary con?icts, determine credibility, or substitute its judgment for the ALJ’s
determination.” Chavez v. O’Malley, 96 F.4th 1016, 1021 (7th Cir. 2024) (internal
quotations omitted).
IV.

Analysis
Plainti? makes four arguments in favor of remand: 1) the ALJ impermissibly

played doctor and cherry picked from the record, and 2) the ALJ failed to account for
Plainti?’s activities of daily living and daily pain. Each of these issues attacks the
Residual Functional Capacity level by accusing the ALJ of failing to accurately account
for the record evidence in one way or another. But as explained below, the Court ?nds

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that the ALJ supported her decision with substantial evidence and none of Plainti?’s
assignments of error undermine that ?nding to such an extent that remand is required.
A.

The ALJ Supported Her Residual Functional Capacity Determination with
Substantial Evidence.

In assessing that Plainti? had a residual functional capacity for work at the
sedentary level with additional limitations, the ALJ considered both objective and
subjective evidence, and she substantially supported her ultimate conclusion that
Plainti? was not disabled. In making her determination, the ALJ ?rst acknowledged
Plainti?’s subjective allegations that pain in her right foot stemming from CRPS left her
unable to stand or walk for longer than an hour without experiencing extreme pain,
swelling, and tingling. (R. 25.) The ALJ also acknowledged Plainti?’s testimony that she
needed her husband to help her get in and out of the bathtub to take a shower, that she
no longer does laundry or chores, and that she elevates her foot most of the time when
sitting or reclining, but sometimes needs to put it down. (Id.) The ALJ further
mentioned Plainti?’s testimony that she gets her three children up in the morning, takes
them to school, takes out the dog, helps her children make their beds, goes to doctor’s
appointments, reads, and watches television. (Id.) Further, the ALJ acknowledged that
while Plainti? took the medication Gabapentin for pain, she had previously declined
injections because of a fear of needles, but as of the day of the hearing testi?ed that she
was willing to try them. (Id.)

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The ALJ’s consideration of the medical evidence in support of her residual
functional capacity assessment demonstrated that she reviewed and weighed both
evidence that supported Plainti?’s allegations as well as evidence that did not. 7
Speci?cally, the ALJ discussed:
•

A November 2018 physical examination that revealed no swelling or sensory
de?cits in the right foot and ankle and intact deep tendon re?exes, but that
showed increased right foot pain with palpitation and pain in Plainti?’s arch,
continued weakness of the right ankle, and atrophy present in the arch compared
to Plainti?’s left foot (R. 26);

•

Plainti?’s reports to her pain management doctor, Maxim Gorelik, M.D., that
Gabapentin provided pain control and relief from burning and tingling in her
foot, and her subsequent referral for physical therapy and an orthopedic shoe
(Id.);

•

April and June 2019 examinations with Dr. Gorelik that revealed Plainti? had a
mildly antalgic gait (uneven walking pattern secondary to pain) and moderate
tenderness in the right foot (Id.);

•

Two consultative examinations Plainti? underwent in connection with her claim
for bene?ts in June and December 2019 which revealed variously that Plainti?
walked with a slight limp, walked unassisted, was unable to walk on heels and
toes but could partially squat and get on and o? the examination table, and was
able dress without assistance. Notes from these examinations revealed right foot
tenderness, mostly normal range of motion, a reported history of right foot pain
ranging from 7/10 to 10/10, and examination ?ndings of right foot tingling to
touch and pain on pressure. (R. 28.);

•

A January 2020 neurology examination that revealed normal overall muscle tone,
5/5 strength throughout, normal light touch pain sensation, and normal gait,
coordination, and re?exes (R. 27.);

Plaintiff does not argue that the ALJ erred in the consideration of her seizure disorder or
asthma or in how the ALJ accommodated those impairments in the Residual Functional
Capacity, and so the Court does not address that evidence.

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•

An April 2020 physical therapy intake evaluation where Plainti? reported that
the opioid Norco helped her pain and that Gabapentin and a muscle relaxant
both helped as well (R. 26.);

•

A number of records concerning Plainti?’s May 2020 physical therapy treatment,
including notes showing Plainti?’s improved activity tolerance, improved
tolerance to standing, overall improved function, and her presentation with “full
pain-free AROM [active range of motion] in right ankle” (Id.);

•

Several June 2020 examinations after Plainti? was in a car accident that revealed,
variously, no swelling in her legs, normal range of motion but with tenderness
generally present, and normal gait (R. 27); and,

•

A January 2021 examination by Dr. Gorelik that revealed moderate pain in
Plainti?’s right ankle with palpitation and mild swelling. (Id.)
The ALJ additionally weighed the four medical opinions in the record as support

for her Residual Functional Capacity assessment. Notably, although both nonexamining state agency doctors supported their opinions with reviews of the medical
evidence and opined that Plainti? could work at the light exertional level, the ALJ
found the opinions unpersuasive because their ?ndings were inconsistent with
Plainti?’s “continued right foot/ankle pain, [and] reported limitations with walking and
standing.” (R. 28-29.)
Next, the ALJ found partially persuasive the November 2018 opinion of workers’
compensation doctor Alan League, M.D., which opined Plainti? could not be on her feet
more than one hour per day and restricted her to no heavy lifting, squatting, or high
impact activities. (R. 29.) Although the opinion was supported by the doctor’s
examination and review of the record, it was not completely consistent with the
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consultative examinations that showed Plainti? able to walk unassisted despite alleging
10/10 pain when not taking medications. (Id.) Further, the ALJ found Dr. League’s
opinion only partially persuasive because it was o?ered prior to Plainti?’s alleged onset
date. (Id.) 8
For similar reasons, the ALJ found unpersuasive the opinion of Ryan Holmbeck,
DPM. The ALJ noted that Dr. Holmbeck o?ered his opinion before Plainti?’s alleged
onset date, and he did not o?er any detailed explanation for his conclusion that Plainti?
had a sedentary residual functional capacity. (Id.)
As additional support for her residual functional capacity determination, the ALJ
pointed to Plainti?’s daily activities as she reported them in several di?erent settings:
(1) a function report she completed with her application for bene?ts, (2) during her
consultative examinations, and (3) at medical and physical therapy examinations and
appointments. (R. 28.) Speci?cally, the ALJ noted that Plainti? self-reported that she
could perform personal care and grooming independently, cook meals, care for her
children, drive them to sports activities, perform household chores such as laundry and

In her reply brief, Plaintiff argues for the first time that the ALJ erred in her evaluation of the
medical opinion and that Dr. League’s opinion is somehow entitled to different consideration
because it was rendered as part of her workers’ compensation case. (D.E. 23: Reply in Support of
Pl. Mot. for Summ. J., “Reply” at 1.) Arguments raised for the first time in a reply brief are waived,
and the Court will not consider them. Martin v. Kijakazi, 21-1920, 2022 WL 1681656, at *3 (7th Cir.
May 26, 2022).
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vacuuming, shop in stores while leaning on the cart for support, cared for eight children
part time,9 and could work with her husband on a new business “?ipping houses.” (Id.)
Taken as whole, the ALJ supported with substantial evidence her determination
of Plainti?’s residual functional capacity and as explained below, none of Plainti?’s
assignments of error undermine the ALJ’s opinion.
B.

The ALJ Did Not Cherry Pick the Record or Impermissibly Play Doctor.

Faced with the ALJ’s thorough consideration of the medical evidence, Plainti?
contends the ALJ nonetheless erred both by cherry picking the record to focus only on
evidence of improvement and by “playing doctor” when analyzing Plainti?’s
limitations caused by her pain syndrome. After reviewing the record, the Court ?nds
these arguments unpersuasive.
Plainti? contends that because her asserted pain syndrome is “a not well
understood phenomenon that uses a number of varied treatments,” the ALJ must have
played doctor in concluding that Plainti?’s particular treatments up to the day of the
hearing (pain medication, orthopedic shoe, and physical therapy) were “routine and

Plaintiff argues that the ALJ’s reference to “eight children” means the ALJ erroneously thought
that Plaintiff actually had eight children of her own, and that her reliance on that incorrect fact
is a basis for remand. But it is clear in the ALJ’s opinion that she knew Plaintiff had only three
children of her own, stating “at the hearing, the claimant testified she lives with her husband
and her three children,” before listing the daily activities Plaintiff performed with those children
(getting them up in the mornings, driving them to school, helping them make their beds, going
to their sporting events). (R. 25.) In context, it seems clear that the reference to eight children
was a reference to the children’ Plaintiff cares for as a self-employed day care worker. (See Pl.
Mem. at 2.)

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conservative.” (Pl. Mem. at 6.) The ALJ described Plainti?’s treatment as routine and
conservative because she observed that “there ha[d] been no surgery and no injections.”
(R. 26). Her characterization was thus merely descriptive; the ALJ “was just considering
Plainti?'s condition and treatment – as required – and providing additional facts in
support of her credibility analysis.” Deborah M. v. Saul, 994 F.3d 785, 790 (7th Cir.
2021). 10
ALJs may “appropriately consider[ ] and weigh[ ] the conservative treatment” a
claimant receives, even if the Plainti?’s doctor did not use the term “conservative” in
the treatment records or opinion. Prill v. Kijakazi, 23 F.4th 738, 749-50 (7th Cir. 2022)
(a?rming ALJ's decision denying bene?ts, which relied on the determination that the
claimant's “treatment—injections, orthotics, and physical therapy—was conservative”).
See also Hohman v. Kijakazi, 72 F.4th 248, 252 (7th Cir. 2023) (upholding ALJ's
determination that the claimant's “course of treatment has been conservative,” as
“medications e?ectively alleviated her pain symptoms, and the record lacked evidence
that she had sought more aggressive treatment”).
Plainti? acknowledges that in addition to treatments such as physical therapy,
psychotherapy, and medication, there are “also more extreme treatments including the

It is accurate that as of the date of the hearing, Plaintiff had not undergone any pain injections
to treat her CRPS. Indeed, she testified at the hearing and the ALJ acknowledged in her opinion
that Plaintiff had previously been afraid of needles but had recently decided to try an injection,
and Plaintiff testified she was going to receive her first one the day following the hearing. There
is no evidence that Plaintiff actually did begin receiving pain injections, however.
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use of spinal cord stimulator or spinal-?uid drug pumps” that may be also used to treat
her pain syndrome. (Pl. Mem. at 6.) Plainti? admits that “[w]e do not know if more
extreme treatment such as a spinal cord stimulator would be e?ective. . .” (Pl. Mem. at
6-7.) By these statements, Plainti? acknowledges that the treatment received to date is
not the most aggressive possible treatment, and the ALJ’s use of the term “conservative”
was not in error.
Next, Plainti? asserts that the ALJ cherry picked from the record to focus only on
evidence of Plainti?’s improvement. (Pl. Mem. at 7.) That assertion is belied by the ALJ’s
thorough discussion of the record. As described above, the ALJ considered and weighed
a broad range of medical, subjective, opinion, and daily activity evidence before
determining that Plainti? was not disabled. “This explicit weighing is precisely within
the purview of the ALJ—and it is not our place to reweigh evidence, even where
reasonable minds might disagree about the outcome.” Bakke v. Kijakazi, 62 F.4th 1061,
1068 (7th Cir. 2023).
Indeed, in arguing that the ALJ erred in her review of the evidence, Plainti? does
exactly what she accuses the ALJ of doing and cherry picks minor bits of evidence from
just a few medical records to attempt to show that the ALJ missed critical information or
otherwise focused only on information of medical improvement. 11 But an ALJ need not

As just one example, Plaintiff contends that the ALJ erred by stating that she testified she can
perform personal care and grooming independently, when she actually testified to the “exact
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discuss every detail in the record as it relates to every factor. Grotts v. Kijakazi, 27 F.4th
1273, 1278–79 (7th Cir. 2022). Summaries of medical evidence, while de?nitionally
“partial and selective,” are appropriate. Id.
C.

The ALJ Did Not Err in Her Consideration of Plainti?’s Activities of Daily
Living and Pain.

The ALJ properly considered both her subjective allegations of pain and her
testimony about her daily activities before determining that Plainti?’s pain was not as
severe as she alleged. When assessing a claimant's symptoms, “an ALJ must consider
several factors, including the claimant's daily activities, her level of pain or symptoms,
aggravating factors, medication, treatment, and limitations, ... and justify the ?nding
with speci?c reasons.” Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009); Charles B. v.
Saul, No. 19-cv-1980, 2020 WL 6134986, at *6 (N.D. Ill. Oct. 19, 2020). Importantly, as
long as an ALJ gives speci?c reasons supported by the record, “we will not overturn a
credibility determination unless it is patently wrong.” Deborah M. v. Saul, 994 F.3d 785,
789 (7th Cir. 2021). The ALJ’s credibility analysis met this standard.
In discounting Plainti?'s testimony, the ALJ adhered to the regulation mandating
consideration of whether Plainti?'s symptoms align reasonably with objective medical

opposite.” (Pl. Mem. at 9). A careful review of the ALJ’s decision reveals that her consideration
of Plaintiff’s activities of daily living relied not on Plaintiff’s testimony but on Plaintiff’s own
function report and on the information she gave to the consultative medical examiner and at
medical appointments — records ignored in Plaintiff’s moving papers. (Id. at 9-10.) There is no
error in the ALJ’s weighing of Plaintiff’s various subjective statements about her abilities.
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evidence and other relevant factors. See 20 C.F.R. § 404.1529(a). Essentially, Plainti?
argues that the ALJ erred by discounting her testimony about the intensity of her pain
and that she needed to elevate her foot throughout the day. But as described above, the
ALJ acknowledged both objective and subjective evidence of Plainti?’s pain complaints,
medical records and examinations, her conservative treatment, the medical opinions,
and Plainti?’s daily activities before determining that her subjective symptoms were not
as severe as alleged. The ALJ’s assessment was not patently wrong. See Deborah M., 944
F.3d at 789,
With respect to Plainti?’s speci?c allegation about her need to elevate her foot,
the ALJ acknowledged Plainti?’s testimony. (R. 25.) At the hearing, Plainti?’s attorney
told the ALJ that the latest medical record recommending that Plainti? elevate her foot
was from July 2018 and that the attorney would get the cite for the ALJ. (R. 68-69.)
However, the Court has found no evidence that Plainti? ever provided such a citation
to the ALJ, and Plainti? points to no evidence in her briefs to support a medical
requirement that she elevate her foot. When balanced against the substantial evidence
the ALJ o?ered in support of her Residual Functional Capacity determination, there is
no error. See, e.g., Marcelina R. v. O'Malley, No. 23-CV-181, 2024 WL 3581742, at *6 (N.D.
Ill. July 30, 2024) (No error where ALJ provided multiple reasons and adhered to
regulations when discounting Plainti?'s subjective complaint of needing to lie down
during the day due to CRPS).
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CONCLUSION
For the foregoing reasons, the Court denies Plainti?’s motion for summary
judgment seeking to reverse and remand the ALJ’s decision (D.E. 14) and grants
Defendant’s motion for summary judgment. (D.E. 20).

SO ORDERED.
ENTER:

________________________________
LAURA K. MCNALLY
United States Magistrate Judge

DATED: November 26, 2024

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