Phipps v. Colvin

Filing 28

ORDER, Affirming 27 MEMORANDUM OF MAGISTRATE JUDGE re 4 Complaint filed by Molly L Phipps. After careful review of the record as a whole, the Court is convinced that ALJ Loewy committed no errors of law, and that her findings are supported by substantial evidence. Accordingly, the final decision of the Commissioner of Social Security denying Molly L. Phippss application for disability benefits is AFFIRMED.The clerk of court shall enter judgment in favor of defendant. Signed by Judge Staci M. Yandle on 12-10-14. (cmh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MOLLY L. PHIPPS,

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Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

Case No. 13-cv-1025-SMY-CJP

MEMORANDUM and ORDER
Yandle, District Judge:
In accordance with 42 U.S.C. § 405(g), plaintiff Molly L. Phipps is before the
Court, represented by counsel, seeking review of the final decision of the Commissioner
of Social Security denying her Disability Insurance Benefits (DIB).
Procedural History
Plaintiff applied for DIB on March 2, 2010. She alleged disability beginning on
October 15, 2009. (Tr. 13). After holding a hearing, Administrative Law Judge (ALJ)
Dina R. Loewy denied the applications in a decision dated May 22, 2012. (Tr. 13-26). The
Appeals Council denied review and the decision of the ALJ became the final agency
decision. (Tr. 1). Administrative remedies have been exhausted and a timely complaint
has been filed in this court.
Issues Raised By Plaintiff
Plaintiff raises the following issues:

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1. The ALJ erred in determining plaintiff’s RFC by failing to include additional
limitations, failing to sufficiently cite medical evidence, not properly weighing
the expert opinions, and being inconsistent within her opinion.
2. The ALJ erred in assessing plaintiff’s credibility by failing to use plaintiff’s
specific testimony.
Applicable Legal Standards
To qualify for DIB, a claimant must be disabled within the meaning of the
applicable statutes. For these purposes, “disabled” means the “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 12 months.” 42 U.S.C.
§423(d)(1)(A).
A “physical or mental impairment” is an impairment resulting from anatomical,
physiological, or psychological abnormalities which are demonstrable by medically
acceptable clinical and laboratory diagnostic techniques.

42 U.S.C. §423(d)(3).

“Substantial gainful activity” is work activity that involves doing significant physical or
mental activities, and that is done for pay or profit. 20 C.F.R. §§ 404.1572.
Social Security regulations set forth a sequential five-step inquiry to determine
whether a claimant is disabled. The Seventh Circuit Court of Appeals has explained
this process as follows:
The first step considers whether the applicant is engaging in substantial
gainful activity. The second step evaluates whether an alleged physical or
mental impairment is severe, medically determinable, and meets a
durational requirement. The third step compares the impairment to a list
of impairments that are considered conclusively disabling. If the
impairment meets or equals one of the listed impairments, then the
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applicant is considered disabled; if the impairment does not meet or equal
a listed impairment, then the evaluation continues. The fourth step
assesses an applicant's residual functional capacity (RFC) and ability to
engage in past relevant work. If an applicant can engage in past relevant
work, he is not disabled. The fifth step assesses the applicant's RFC, as
well as his age, education, and work experience to determine whether the
applicant can engage in other work. If the applicant can engage in other
work, he is not disabled.
Weatherbee v. Astrue, 649 F.3d 565, 568-569 (7th Cir. 2011).
Stated another way, it must be determined: (1) whether the claimant is presently
unemployed; (2) whether the claimant has an impairment or combination of
impairments that is serious; (3) whether the impairments meet or equal one of the listed
impairments acknowledged to be conclusively disabling; (4) whether the claimant can
perform past relevant work; and (5) whether the claimant is capable of performing any
work within the economy, given his or her age, education and work experience. 20
C.F.R. §§ 404.1520; Simila v. Astrue, 573 F.3d 503, 512-513 (7th Cir. 2009); Schroeter v.
Sullivan, 977 F.2d 391, 393 (7th Cir. 1992).
If the answer at steps one and two is “yes,” the claimant will automatically be
found disabled if he or she suffers from a listed impairment, determined at step three.
If the claimant does not have a listed impairment at step three, and cannot perform his
or her past work (step four), the burden shifts to the Commissioner at step five to show
that the claimant can perform some other job. Rhoderick v. Heckler, 737 F.2d 714, 715 (7th
Cir. 1984).

See also Zurawski v. Halter, 245 F.3d 881, 886 (7th Cir. 2001)(Under the five-

step evaluation, an “affirmative answer leads either to the next step, or, on Steps 3 and
5, to a finding that the claimant is disabled…. If a claimant reaches step 5, the burden

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shifts to the ALJ to establish that the claimant is capable of performing work in the
national economy.”).
This Court reviews the Commissioner’s decision to ensure that the decision is
supported by substantial evidence and that no mistakes of law were made.
important to recognize that the scope of review is limited.

It is

“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, this Court must determine not
whether plaintiff was, in fact, disabled at the relevant time, but whether the ALJ’s
findings were supported by substantial evidence and whether any errors of law were
made. See, Books v. Chater, 91 F.3d 972, 977-78 (7th Cir. 1996) (citing Diaz v. Chater, 55
F.3d 300, 306 (7th Cir. 1995)).

This Court uses the Supreme Court’s definition of

substantial evidence, i.e., “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 91 S. Ct. 1420, 1427 (1971).
In reviewing for “substantial evidence,” the entire administrative record is taken
into consideration, but this Court does not reweigh evidence, resolve conflicts, decide
questions of credibility, or substitute its own judgment for that of the ALJ. Brewer v.
Chater, 103 F.3d 1384, 1390 (7th Cir. 1997). However, while judicial review is deferential,
it is not abject; this Court does not act as a rubber stamp for the Commissioner. See,
Parker v. Astrue, 597 F.3d 920, 921 (7th Cir. 2010), and cases cited therein.
The Decision of the ALJ
ALJ Loewy followed the five-step analytical framework described above. She
determined that plaintiff had not been engaged in substantial gainful activity since the
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alleged onset date. The ALJ found that plaintiff had severe impairments of degenerative
disc disease, inflammatory bowel disease, not otherwise specified, arthritis, anxiety, and
depression.
The ALJ found that plaintiff had the residual functional capacity (RFC) to
perform work at the light level, with physical and mental limitations. Based on the
testimony of a vocational expert (VE), the ALJ found that plaintiff was unable to
perform her past relevant work as a hairdresser. However, she was not disabled
because she was able to do other work that existed in significant numbers in the
regional and national economies. (Tr. 13-26).
The Evidentiary Record
The court has reviewed and considered the entire evidentiary record in
formulating this Memorandum and Order. The following summary of the record is
directed to the points raised by the plaintiff.
1. Agency Forms
Plaintiff was born in 1974 and was thirty-five years old at the alleged onset date. She
was insured for DIB through December 2010. (Tr. 141). She completed high school and
had specialized training in cosmetology. (Tr. 162).
According to plaintiff, her Crohn’s disease, arthritis, anxiety, depression,
hypothyroidism, and migraines made her unable to work. (Tr. 160). Since 1995, plaintiff
worked in a beauty salon as either a shampoo girl or a beautician. (Tr. 162).
Plaintiff submitted two Function Reports in 2010 wherein she stated her arthritis,
degenerative changes in her spine, and pain in her stomach made her daily activities
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difficult. (Tr. 173, 226). Plaintiff had two young children she cared for with the help of
her husband, mother, and adult daughter. (Tr. 173, 226-27). She was able to take care of
her personal needs but needed help preparing meals and doing laundry. (Tr. 173-74,
228). Plaintiff was able to drive and could manage her own funds. (Tr. 175, 229).
Plaintiff said she had trouble lifting, bending, standing, reaching, walking, climbing
stairs, using her hands, hearing, completing tasks, getting along with others,
concentrating, understanding, and remembering. She stated lifting her child was
difficult and reaching hurt her back. Her hands were achy and she had to rest after
walking for fifteen minutes. She felt her concentration and memory were impaired due
to stress from her anxiety and depression. (Tr. 177, 231).
2. Evidentiary Hearing
Plaintiff was represented by an attorney at the evidentiary hearing on March 1, 2012.
(Tr. 35). She stated she was 5’5” and weighed 162 pounds. (Tr. 38-9). She was in the
middle of a divorce with her husband and was separated at the time of the hearing. (Tr.
39). She was still covered on her husband’s insurance, however, because their divorce
was not yet finalized. (Tr. 43). Plaintiff lived with her three children ages twenty, nine,
and three. (Tr. 39). Plaintiff testified that she sometimes drove but experienced pain if
she sat for too long. (Tr. 39-40). She stated she had active Crohn’s disease that only went
into remission for two or three months at a time. (Tr. 40).
Plaintiff testified to receiving six-hundred dollars in child support monthly.
Additionally, if she had a “good day” she would cut someone’s hair for about twentyfive dollars. She stated she had two to three good days a month. (Tr. 42). Plaintiff
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graduated from high school and received a professional license in cosmetology. (Tr. 43).
She worked in a salon for roughly one year where she either paid rent or received
commission. (Tr. 44-48). She stopped working at a salon approximately two months
before the hearing. (Tr. 44).
Plaintiff stated that she had both Crohn’s disease and colitis. (Tr. 50). Her Crohn’s
disease caused her to have arthritis, and become fatigued and nauseated. (Tr. 51). She
received Humira injections and Remicade treatments. The Remicade treatments did not
help but the Humira put her into remission. (Tr. 50-51). At the time of the hearing, the
only medication plaintiff took was Prozac for depression. (Tr. 52). The doctors plaintiff
regularly saw were her gastroenterologist, Dr. Presti, her rheumatologist, Dr. Ince, and
her pain management specialist, Dr. Backer. (Tr. 53).
Plaintiff testified that she kept busy with her children. She did not have many
hobbies but occasionally watched television. She was able to cook and do laundry on
most days. Plaintiff’s mother would help her take care of the chores when she had a bad
day. (Tr. 55). On her bad days she felt as though she could hardly walk to the restroom
and had very little energy. (Tr. 56-57). Plaintiff testified to having to use the restroom
constantly on her bad days due to Crohn’s disease. (Tr. 58). She had back pain that she
took ibuprofen to treat and could stand or sit for about thirty minutes. (Tr. 65). She
stated that she was most comfortable when she was lying on her side. (Tr. 65).
A vocational expert (VE) also testified. The ALJ asked the VE a hypothetical
question which comported with the ultimate RFC assessment, that is, a person of
plaintiff’s age and work history who was able to do light work, limited to occasional
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stooping, kneeling, crouching, and crawling. Additionally, she could only occasionally
climb stairs, ladders, ropes, or scaffolds, and was limited to simple routine tasks. (Tr.
67-8).
The VE testified that the person could not perform any of plaintiff’s previous work.
However, the person could do jobs that exist in significant numbers in the national
economy. Examples of such jobs are retail sales, light housekeeping, and cafeteria
attendant. (Tr. 68). The VE also testified that if the person had to miss work more than
one day a month or take more than the customary number of breaks no jobs would be
available. (Tr. 69).
3. Medical Treatment Until Date Last Insured1
In March 2009, plaintiff went to the hospital for dull and cramping abdominal pain
that was aggravated by eating. (Tr. 271). She had an upper endoscopy in April 2009 that
revealed minimal inflammatory changes but was an otherwise normal scan. (Tr. 300).
Later that month plaintiff underwent surgery to have her gallbladder removed due to
cholecystitis. (Tr. 307).
In May 2009, plaintiff returned to the hospital complaining of mild to moderate
shoulder and back pain for which she was prescribed medications. (Tr. 278-79). In July
2009, plaintiff was diagnosed with degenerative disc disease but had normal motor
strength and a normal gait. The treating physician felt plaintiff could be treated with
NSAIDs and an exercise program. (Tr. 283). These symptoms continued through
In a DIB case, a claimant must establish that she was disabled as of her date last insured. Stevenson v.
Chater, 105 F.3d 1151, 1154 (7th Cir. 1997). It is not sufficient to show that the impairment was present as
of the date last insured; rather plaintiff must show that the impairment was severe enough to be disabling
as of the relevant date. Martinez v. Astrue, 630 F.3d 693, 699 (7th Cir. 2011).
1

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September 2009 with similar treatment regimens prescribed. (Tr. 287-89).
Plaintiff underwent an endoscopy and colonoscopy in November 2009 that revealed
moderate inflammatory changes consistent with colitis and a small hiatal hernia. The
doctor opined plaintiff’s colonoscopy results were not consistent with a finding of
Crohn’s disease and she was started on antibiotic therapy. (Tr. 313). Later that month,
plaintiff was admitted to the hospital with colitis. (Tr. 316). She was prescribed Ativan
for anxiety while she was admitted. (Tr. 319). Plaintiff also had an MRI on her spine that
month which revealed mild degenerative disc disease and bulging disc at L4-5. (Tr.
466).
Plaintiff was admitted to the hospital again at the end of November 2009 for
abdominal pain. Plaintiff’s admitting and discharge diagnoses included Crohn’s
disease. (Tr. 334). She was started on a Remicade treatment, discharged, and advised to
follow up with pain management specialists. (Tr. 337). Thereafter, plaintiff received
steroid injections in her spine on four occasions. (Tr. 471-82).
Plaintiff began seeing her gastroenterologist, Dr. Presti, in November 2009. (Tr. 457).
Dr. Presti had tests performed that month indicating plaintiff’s lab work was consistent
with IBD and ulcerative colitis, but not consistent with Crohn’s disease. (Tr. 457). In
January 2010, Dr. Presti evaluated plaintiff’s ulcerative colitis and noted Remicade
treatments were helping her colitis symptoms. (Tr. 425-26). Dr. Presti performed an
upper endoscopy in March 2010 that revealed mild esophagitis. (Tr. 430). Plaintiff
continued to see Dr. Presti through September 2010 for her gastrointestinal problems.
(Tr. 421-68, 645-77).
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Plaintiff saw Dr. Ince, a rheumatologist, in February and March 2010. (Tr. 487-95).
He diagnosed her with polyarthritis and sacroiliitis. (Tr. 408, 494). He opined plaintiff
may have spondyloarthropathy secondary to Crohn’s disease. (Tr. 494). Plaintiff had a
urinalysis performed by Dr. Ince which revealed trace amounts of protein displaying
Crohn’s but otherwise negative results. However, Dr. Ince felt plaintiff had Crohn’s
disease and continued Remicade treatments. (Tr. 488-90).
Plaintiff was hospitalized again in March and April 2010 for abdominal and back
pain. The record shows plaintiff stated she had Crohn’s disease and felt it had never
been under control. While the tests performed showed little to no problems, plaintiff
required a significant amount of pain medication. (Tr. 353, 522-24).
Plaintiff’s treatment notes also indicated she had diabetes and hypothyroidism. (Tr.
401-05). The record reflects minimal treatment regarding these problems. Additionally,
plaintiff’s treatment records show that she had a history of depression and anxiety, but
during the relevant time she did not seek treatment specifically for her psychological
impairments.
4. Medical Treatment After Date Last Insured
Plaintiff went to the hospital multiple times complaining of debilitating abdominal
and back pain after her date last insured.
In the summer of 2011 plaintiff fell and injured her back. (Tr. 916, 933). While X-rays
showed no fracture, an MRI revealed degenerative changes and disc protrusion. (Tr.
927, 913). In August 2011, plaintiff underwent surgery for microdiscectomy after which
she reported an eighty percent improvement in her pain. (Tr. 764, 748). In September
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2011, specialists were concerned about plaintiff’s drug seeking behavior and refused to
refill any more pain medications. (Tr. 715).
Plaintiff was admitted to the hospital for depression with suicidal thoughts in
September 2011. (Tr. 682-88). The doctor’s notes indicate the depression had gotten
worse recently and plaintiff had not had adequate time on any one antidepressant to
achieve real change. (Tr. 682). She was treated with medications and psychotherapy
before being discharged. (tr. 691).
5. Opinion of Dr. Presti
In April 2010, Dr. Presti completed an evaluation as to plaintiff’s impairments. (Tr.
502-03). He opined plaintiff had Crohn’s disease and Crohn’s associated arthritis with
persistent or recurrent systemic manifestations. (Tr. 502). He stated plaintiff’s symptoms
included diarrhea, vomiting, muscle weakness, abdominal cramping or pain, nausea,
severe fatigue, severe malaise, poor sleep, arthritis and joint pain, and back pain. Dr.
Presti felt plaintiff was unable to work as she needed to take unscheduled breaks
during a workday and would miss more than three days a month due to her
impairments. (Tr. 503).
6. Consultative Exam
In June 2010, Stephen Vincent, Ph.D., performed a consultative mental exam. (Tr.
562-65). Plaintiff stated she received treatment from her primary care physician for
anxiety and depression. She reported ongoing difficulties with anxiety that occurred
unpredictably. (Tr. 562). She denied any disturbances with regard to her though and
was not psychotic. Dr. Vincent noted that she shifted her posture often throughout the
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examination and she had difficulty staying focused and on task due to pain. (Tr. 563).
Dr. Vincent felt plaintiff was oriented to person, place, time, and situation. She was
able to remember five numbers forward and backward, and could count by threes
without error. She refused to do serial sevens, could not recall three previously learned
items, and could not recall names of three famous people. (Tr. 564). Dr. Vincent’s
diagnostic impressions were major depression and generalized anxiety disorder with
panic like episodes. (Tr. 565).
7. State Agency RFC Assessments
Plaintiff had mental and physical RFC assessments performed in June 2010. (Tr. 58091). Both doctors reviewed plaintiff’s medical records but did perform examinations.
(Tr. 578, 591). M.W. DiFonso, Psy.D., performed a mental RFC assessment and
psychiatric review technique. He opined that plaintiff had major depression and
generalized anxiety disorder. (Tr. 596, 571). He found plaintiff moderately limited in
maintaining concentration, persistence, or pace, and moderately limited understating,
remembering, or carrying out detailed instructions. (Tr. 576, 580). Dr. DiFonso opined
plaintiff had the cognitive and attentional skills for simple one and two step tasks.
Plaintiff’s interpersonal and adaptive skills were within normal limits. (Tr. 582).
Dr. Lenore Gonzales performed plaintiff’s physical RFC assessment. He opined
plaintiff was able to do work at the light exertional level, i.e., frequently lift 10 pounds
and occasionally lift 20 pounds. (Tr. 585). She had no environmental or postural
limitations. (Tr. 586, 588). These opinions were affirmed by additional physicians who
reviewed the record. (Tr. 679-680).
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Analysis
Plaintiff argues first the ALJ incorrectly determined her RFC by failing to include
additional limitations, improperly weighing medical opinions, failing to sufficiently cite
medical records, and making inconsistent findings within her opinion. As plaintiff relies
in part on her testimony, the Court will first consider her argument regarding the ALJ’s
credibility analysis.
It is well-established that the credibility findings of the ALJ are to be accorded
deference, particularly in view of the ALJ’s opportunity to observe the witness. Powers
v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000). “Applicants for disability benefits have an
incentive to exaggerate their symptoms, and an administrative law judge is free to
discount the applicant’s testimony on the basis of the other evidence in the case.”
Johnson v. Barnhart, 449 F.3d 804, 805 (7th Cir. 2006).
The ALJ is required to give “specific reasons” for her credibility findings and to
analyze the evidence rather than simply describe the plaintiff’s testimony. Villano v.
Astrue, 556 F.3d 558, 562 (7th Cir. 2009). See also, Terry v. Astrue, 580 F.3d 471, 478 (7th
Cir. 2009)(The ALJ “must justify the credibility finding with specific reasons supported
by the record.”) The ALJ may rely on conflicts between plaintiff’s testimony and the
objective record, as “discrepancies between objective evidence and self-reports may
suggest symptom exaggeration.” Getch v. Astrue, 539 F.3d 473, 483 (7th Cir. 2008).
However, if the adverse credibility finding is premised on inconsistencies between
plaintiff’s statements and other evidence in the record, the ALJ must identify and
explain those inconsistencies. Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001).
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Plaintiff first takes issues with the ALJ’s usage of boilerplate language that has
been criticized in cases such as Parker v. Astrue, 597 F.3d 920 (7th Cir. 2010), and Brindisi
v. Barnhart, 315 F.3d 783 (7th Cir. 2003). However, the use of the boilerplate language
does not necessarily require remand. The use of such language is harmless where the
ALJ goes on to support her conclusion with reasons derived from the evidence. See,
Pepper v, Colvin, 712 F.3d 351, 367-368 (7th Cir. 2013); Shideler v. Astrue, 688 F.3d 306,
310-311 (7th Cir 2012).
Plaintiff primarily argues that the ALJ’s analysis was insufficient as she did not
address the credibility of specific portions of her testimony, explain the basis for
rejecting this testimony, or clarify how much weight she actually gave the testimony.
Contrary to plaintiff’s suggestion, “an ALJ's credibility findings need not specify which
statements were not credible.” Shideler v. Astrue, 688 F.3d 306, 312 (7th Cir. 2012). SSR
96-7p requires the ALJ to consider a number of factors in assessing the claimant’s
credibility, including the objective medical evidence, the claimant’s daily activities,
medication for the relief of pain, and “any other factors concerning the individual’s
functional limitations and restrictions due to pain or other symptoms.” SSR 96-7p, at *3.
ALJ Loewy considered the relevant factors and supported her conclusion with
reasons derived from evidence. See, SSR 96-7p. She thoroughly reviewed and analyzed
plaintiff’s extensive medical records. She concluded that the medical records and
objective medical testing did not support plaintiff’s claim of disabling pain. For
example, the ALJ looked extensively through plaintiff’s records in order to find
objective medical evidence that indicated plaintiff had Crohn’s disease. (Tr. 19). While
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several doctors opined plaintiff seemed to have Crohn’s disease, all of her colonoscopies
and test results were negative for indications of Crohn’s. ALJ Loewy then looked at
plaintiffs X-rays and MRIs for her back pain. She noted plaintiff was not recommended
to have surgery until after the date last insured when she suffered from a fall. (Tr. 21).
The ALJ then took into consideration plaintiff’s daily activities. Plaintiff claimed
to need multiple naps a day and stated she had multiple bad days a month where she
would have to lay down for hours at a time. The ALJ noted that plaintiff also testified to
staying busy with her children, driving, paying the bills, and doing housework. (Tr. 23).
The Seventh Circuit has repeatedly held it is appropriate to consider these activities but
it should be done with caution. The ability to perform daily tasks “does not necessarily
translate into an ability to work full-time.” Roddy v. Astrue, 705 F.3d 631, 639 (7th Cir.
2013). Here, the ALJ does not infer plaintiff’s daily activities could translate into her
ability to work full-time.

Rather, the ALJ states that plaintiff’s statements were

inconsistent as her claims of inability to function did not match her statements of her
daily activities. (Tr. 23).
The ALJ also looked at plaintiff’s prescribed medications. She stated plaintiff had
not taken any medications for her Crohn’s or arthritis in the previous six months, but
had taken medications for psychiatric conditions. ALJ Loewy noted that when plaintiff
did take her medications, however, she did not take them regularly and was
inconsistent when she filled her prescriptions. The ALJ considered plaintiff’s work
history and decided it was not consistent with someone who was continually motived
to work as plaintiff had minimal earnings history as a hairstylist. (Tr. 23).
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The ALJ’s credibility assessment need not be “flawless;” it passes muster as long
as it is not “patently wrong.” Simila v. Astrue, 573 F.3d 503, 517 (7th Cir. 2009). The
analysis is deemed to be patently wrong “only when the ALJ's determination lacks any
explanation or support.” Elder v. Astrue, 529 F.3d 408, 413-414 (7th Cir. 2008). Here, the
analysis is far from patently wrong. It is evident that ALJ Loewy considered the
appropriate factors and built the required logical bridge from the evidence to her
conclusions about plaintiff’s testimony. Castile v. Astrue, 617 F.3d 923, 929 (7th Cir.
2010). Therefore, her credibility determination stands.
Plaintiff then argues the ALJ incorrectly determined her RFC by failing to include
additional limitations. An RFC is “the most you can still do despite your limitations.”
20 C.F.R. §1545(a). In assessing RFC, the ALJ is required to consider all of the claimant’s
“medically determinable impairments and all relevant evidence in the record.” Ibid.
Obviously, the ALJ cannot be faulted for omitting alleged limitations that are not
supported by the record.
Plaintiff contends that the opinions of Dr. Presti, one of her treating physicians,
were not given enough weight in forming the RFC. A treating doctor’s medical opinion
is entitled to controlling weight only where it is supported by medical evidence and is
not inconsistent with other substantial evidence in the record. Clifford v. Apfel, 227 F.3d
863 (7th Cir. 2000); Zurawski v. Halter, 245 F.3d 881 (7th Cir. 2001).
The version of 20 C.F.R. §404.1527(c)(2) in effect at the time of the ALJ’s decision
states:
Generally, we give more weight to opinions from your treating sources,
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since these sources are likely to be the medical professionals most able to
provide a detailed, longitudinal picture of your medical impairment(s)
and may bring a unique perspective to the medical evidence that cannot
be obtained from the objective medical findings alone or from reports of
individual examinations, such as consultative examinations or brief
hospitalizations. If we find that a treating source's opinion on the issue(s)
of the nature and severity of your impairment(s) is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in your case record,
we will give it controlling weight. [Emphasis added]

It must be noted that, “while the treating physician’s opinion is important, it is
not the final word on a claimant’s disability.” Books v. Chater, 91 F.3d 972, 979 (7th Cir.
1996)(internal citation omitted). It is the function of the ALJ to weigh the medical
evidence, applying the factors set forth in §404.1527. Supportability and consistency are
two important factors to be considered in weighing medical opinions. See, 20 C.F.R.
§404.1527(d). In a nutshell, “[t]he regulations state that an ALJ must give a treating
physician's opinion controlling weight if two conditions are met: (1) the opinion is
supported by ‘medically acceptable clinical and laboratory diagnostic techniques[,]’ and
(2) it is ‘not inconsistent’ with substantial evidence in the record.” Schaaf v. Astrue, 602
F.3d 869, 875 (7th Cir. 2010), citing §404.1527(d).
Thus, the ALJ can properly give less weight to a treating doctor’s medical
opinion if it is inconsistent with the opinion of a consulting physician, internally
inconsistent, or inconsistent with other evidence in the record. Henke v. Astrue, 498
Fed.Appx. 636, 639 (7th Cir. 2012); Schmidt v. Astrue, 496 F.3d 833, 842 (7th Cir. 2007). In
light of the deferential standard of judicial review, the ALJ is required only to
“minimally articulate” his reasons for accepting or rejecting evidence, a standard which
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the Seventh Circuit has characterized as “lax.” Berger v. Astrue, 516 F.3d 539, 545 (7th
Cir. 2008); Elder v. Astrue, 529 F.3d 408, 415 (7th Cir. 2008).
ALJ Loewy met this “lax” standard. She presented a detailed review of the
medical evidence and rejected Dr. Presti’s opinion regarding plaintiff’s inability to work
due to frequent work absences and the need for multiple breaks during a workday. The
ALJ correctly cited SSR 96-5p which states that the ultimate issue of disability is
reserved to the Commissioner and a treating source will never be granted controlling
weight. The ALJ then described how Dr. Presti’s opinion that plaintiff had Crohn’s
disease was inconsistent with the evidence as a whole. (Tr. 22). ALJ Loewy noted that
only days after Dr. Presti opined plaintiff was unable to work, plaintiff had a
colonoscopy that revealed no evidence of Crohn’s disease and only possibly quiescent
colitis. (Tr. 23, 523).
Plaintiff argues substantial evidence existed in support of her testimony and the
opinion of Dr. Presti. She cites multiple portions of the record that she feels corroborate
her claims for additional limitations. The ALJ referenced many of the same portions of
the record plaintiff cites but goes into further detail. For example, the ALJ noted
plaintiff’s records stating her symptoms were consistent with colitis. (Tr. 19, 313).
However, the ALJ also noted her symptoms were reported as improved by Dr. Presti.
(Tr. 20, 653). ALJ Lowey considered plaintiff’s history of back problems and noted there
were some degenerative changes. (Tr. 19, 466). She also stated that plaintiff had normal
range of motion. Additionally, her back pain was not severe enough to warrant surgery
until well after the date last insured when she became injured after falling. (Tr. 20-21,
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768, 864). The ALJ looked at plaintiff’s history of consistent joint pain with arthritis.
However, plaintiff also went off her medications by May 2011 because she was “feeling
great.” (tr. 21, 698, 702). The ALJ created an RFC for the limitations she found were
consistent and supported by the evidence on the record.
She finally argues that the ALJ erred in not including additional limitations in the
RFC with regard to concentration, persistence and pace, the need to lie down, and
additional work absences.
While the ALJ noted plaintiff had a moderate difficulty with concentration,
persistence and pace, she also limited plaintiff to simple and routine tasks. This Court
agrees with the Commissioner that plaintiff failed to demonstrate how this limitation
was insufficient. Plaintiff presented no objective evidence or medical source opinions
that she had more difficulty with concentration, persistence and pace than was
accounted for within her RFC. The Commissioner correctly points out the ALJ
considered the results of plaintiff’s consultative examinations and opinions from
medical sources, none of which contained a greater restriction than simple and routine
tasks. The ALJ noted that plaintiff stated her depression and anxiety were not as
problematic as they had been in the past and that medications were proving to be
helpful. (Tr. 23).
This Court has reviewed plaintiff’s entire medical record. Other than plaintiff’s
own claims that she could not pay attention, which the ALJ found to not be credible,
and the examination with Dr. Vincent, where plaintiff was distracted but redirected
easily, there were very few indications plaintiff had difficulty with concentration,
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persistence and pace. Additionally, the only medical record showing plaintiff needed to
frequently lie down or miss work often was from Dr. Presti, whose opinion the ALJ
chose to give “little weight.”
It was plaintiff’s responsibility to provide medical evidence showing she had
impairments with concentration, persistence and pace, the need to lie down or to miss
work. 20 C.F.R. §416.912 “When an applicant for social security benefits is represented
by counsel the administrative law judge is entitled to assume that the applicant is
making his strongest case for benefits.” Glenn v. Secretary of Health and Human Services,
814 F.2d 387, 391 (7th Cir. 1987). She has not presented any acceptable evidence to these
points and therefore the ALJ’s RFC finding stands. Buckhanon ex. rel J. H. v. Astrue, 368
Fed. Appx. 674, 679 (7th Cir. 2010).
As the Commissioner notes, the Seventh Circuit has held that when a claimant
believes there are gaps or flaws within an ALJ’s opinion, “we give the opinion a
commonsensical reading rather than nitpicking it.” Johnson v. Apfel, 189 F.3d 561, 564
(7th Cir. 1999). Reading the ALJ’s opinion from a commonsensical standpoint, it is clear
she looked at the appropriate factors and determined plaintiff’s RFC based upon the
entirety of her medical treatment history.
In sum, plaintiff’s argument is, in effect, nothing more than an invitation for the
Court to reweigh the evidence. However, the reweighing of evidence goes far beyond
the Court’s role.

Even if reasonable minds could differ as to whether plaintiff is

disabled, the ALJ’s decision must be affirmed if it is supported by substantial evidence,
and the Court cannot make its own credibility determination or substitute its judgment
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for that of the ALJ in reviewing for substantial evidence. Shideler v. Astrue, 688 F.3d 306,
310 (7th Cir. 2012); Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008).
Conclusion
After careful review of the record as a whole, the Court is convinced that ALJ
Loewy committed no errors of law, and that her findings are supported by substantial
evidence.

Accordingly, the final decision of the Commissioner of Social Security

denying Molly L. Phipps’s application for disability benefits is AFFIRMED.
The clerk of court shall enter judgment in favor of defendant.
IT IS SO ORDRED.
DATE: December 10, 2014
s/ Staci M. Yandle
STACI M. YANDLE
DISTRICT JUDGE

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