Pierce v. Commissioner of Social Security

Filing 25

MEMORANDUM AND OPINION denying plaintiff's motion for summary judgment and affirming the final decision of the Commissioner of Social Security. The Clerk of Court is directed to enter judgment in favor of defendant. Signed by Magistrate Judge Clifford J. Proud on 3/14/2016. (klm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KRISTINA PIERCE,

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

Civil No. 15-cv-231-CJP 1

MEMORANDUM and ORDER
PROUD, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), plaintiff Kristina Pierce,
represented by counsel, seeks judicial review of the final agency decision
denying her Disability Insurance Benefits (DIB) benefits pursuant to 42 U.S.C.
§423.
Procedural History
Plaintiff applied for benefits in August 2012, alleging disability beginning
on December 16, 2011. (Tr. 15). After holding an evidentiary hearing, ALJ
Victoria A. Ferrer denied the application for benefits in a decision dated
October 29, 2013. (Tr. 15-26). 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 was filed in this Court.

1

This case was referred to the undersigned for final disposition upon consent of the parties,
pursuant to 28 U.S.C. §636(c). See, Doc. 9.

1

Issues Raised by Plaintiff
Plaintiff raises the following points:
1. The ALJ erred in determining plaintiff’s credibility.
2. The ALJ’s erred in determining plaintiff’s RFC.
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
2

equals one of the listed impairments, then the 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
3

Steps 3 and 5, to a finding that the claimant is disabled…. If a claimant
reaches step 5, the burden 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. It is important to recognize that the scope of review is limited. “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)).
The Supreme Court has defined substantial evidence as “such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (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.
4

The Decision of the ALJ
ALJ Ferrer followed the five-step analytical framework described above.
She determined plaintiff had not been engaged in substantial gainful activity
since her alleged onset date. She found plaintiff had severe impairments of
degenerative disc disease, lumbar spine, history of cervical fusion, and was
overweight. The ALJ determined these impairments do not meet or equal a
listed impairment.
The ALJ found that plaintiff had the residual functional capacity (RFC) to
perform work at the light level with physical limitations. Based on the
testimony of a vocational expert (VE), the ALJ found the plaintiff was unable to
perform her past work. However, there were jobs that existed in significant
numbers in the national and local economies that plaintiff could perform. (Tr.
15-26).
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 plaintiff.
1. Agency Forms
Plaintiff was born on August 31, 1974 and was thirty-seven years old at
her alleged onset date. (Tr. 206). Plaintiff was five feet seven inches tall and
weighed one hundred and sixty-seven pounds. (Tr. 210). She completed one
year of college and previously worked as a tire inspector, laborer, waitress,
retail manager, and in residential and commercial cleaning. (Tr. 211-12, 219).
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Plaintiff claimed that lower back lumbago, depression, and degenerative
arthritis limited her ability to work. (Tr. 210). She took Cymbalta for
depression, Gabapentin for restless leg syndrome and as a sleep aid, and she
took Relafen for pain relief. (Tr. 264).
Plaintiff submitted two function reports, one in August 2012 and another
in February 2013. (Tr. 198-204, 250-58). In August 2012, plaintiff claimed that
she got her children ready for school each day, tidied up the house, fed the
dogs, and prepared herself meals. (Tr. 198). Her husband and children helped
her around the house and with their dogs. (Tr. 199). She stated that she was
unable to handle finances and could no longer be as active with her children as
she was previously. (Tr. 202). Her memory was intact and she did not need to
be reminded to go places. (Tr. 199-202). She claimed difficulty lifting,
squatting, bending, standing, reaching, walking, sitting, kneeling, talking, and
climbing stairs. She could walk approximately half a mile before needing to sit
and rest for fifteen to twenty minutes. (Tr. 203).
In February 2013, plaintiff stated that sitting caused discomfort in her
back and nerve pains down her left leg. (Tr. 250). She could make simple meals
like cereal or frozen dinners but still needed help from her son and husband.
She could do the laundry for thirty minutes daily but was unable to perform
any other household chores. (Tr. 252). She could drive a car and handle the
family’s finances. If plaintiff went grocery shopping she needed someone else to
accompany her. (Tr. 254). She had no problems with her memory. (Tr. 251,
252, 255).
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Plaintiff claimed to have difficulty lifting, squatting, bending, standing,
reaching, walking, sitting, kneeling, climbing stairs, and completing tasks. She
could walk less than a quarter mile and would need to rest an hour before she
was able to resume walking. Plaintiff had no difficulty following written or
spoken instructions. (Tr. 256). While she had difficulty handling stress, she
could get along with others and handle changes in her routine fine. (Tr. 257).
Plaintiff stated that her depression was worsening and her physical discomfort
was constant. (Tr. 258).
Plaintiff’s husband also completed a function report in October 2012. (Tr.
230-37). He lived with plaintiff in a house and stated that plaintiff had
difficulty standing, walking, lifting, and bending. (Tr. 230). On a daily basis,
plaintiff got their children ready for school, performed light house work, and
helped the children with their after school activities. (Tr. 231). He indicated
that plaintiff needed help lifting laundry and could no longer mop the floors or
take out the trash. He stated that plaintiff could prepare a wide variety of meals
but the entire family had to help prepare larger meals. (Tr. 232). Plaintiff was
able to drive and could shop for household items two or three times a week.
(Tr. 233).
2. Evidentiary Hearing
Plaintiff was represented by counsel at the evidentiary hearing held on
September 20, 2013. (Tr. 33). She lived in a home with her husband and four
children. (Tr. 51). Her children ranged in age from eleven to nineteen. (Tr. 45).
Her children participated in after school activities but she had difficulty sitting
7

through their baseball and football games. (Tr. 45-46). She used to ride
motorcycles but sold hers recently because she was no longer able to ride. (Tr.
47). Plaintiff last worked on December 16, 2011. (Tr. 35). She was on short
term disability with her last employer for six months after that date and at the
time of the hearing was on long term disability. (Tr. 35-36).
Plaintiff had surgery on her lumbar spine in June 2012 and at the time
of the hearing had recently begun physical therapy. (Tr. 36-37). Her pain was
worse when she sat or did any activity that required twisting. (Tr. 38). Plaintiff
was able to sit in a car for two hours to drive to St. Louis, but she needed to
stop at least twice during the drive. (Tr. 39). She testified that she could only
sit for fifteen to thirty minutes at a time. (Tr. 55). Plaintiff had sharp pain and
numbness in her left foot. (Tr. 53). She stated that she had difficulty walking
more than one block at a time. (Tr. 38). Plaintiff did not carry anything heavier
than a gallon of milk because she frequently dropped items. (Tr. 55-56).
Plaintiff had nerve pain that radiated from her back down her leg and
into her foot. (Tr. 43). She took Gabapentin three times a day to help with her
nerve pain, and for her back pain she took Tramadol twice a day, and had a
pain patch she could wear for up twelve hours. (Tr. 42). Plaintiff also had a
history of migraines. She had cervical fusion to reduce their frequency, but she
still had headaches daily. (Tr. 41). Occasionally she took Advil to help with her
headache pain. (Tr. 42). Plaintiff did not feel the medications relieved all of her
pain but it “took the edge off.” (Tr. 44). Plaintiff also took medication for
depression and regularly saw her primary care physician for help with mental
8

health. (Tr. 49-50). She felt the medication she took for depression helped and
the amount of “bad days” she had decreased. (Tr. 50).
Plaintiff did not perform many household tasks beyond cooking light
meals during the week. (Tr. 52). The day after she had physical therapy she
could not cook light meals due to increased pain. (Tr. 53). Her children did
their own laundry and she was unable to dust, vacuum, sweep, or mop. (Tr.
52). Plaintiff stated that she spent about ninety percent of her day lying on the
couch with a pillow between her legs. (Tr. 55).
A vocational expert (VE) also testified. (Tr. 56-60). 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 perform
work at the light level, limited to occasional stooping and frequent climbing of
stairs, ramps, ladders, ropes, and scaffolds. The person would be limited to
occasional kneeling, crouching, and crawling. Additionally, the person must
avoid concentrated exposure to wetness and humidity. The VE testified that
this person could perform plaintiff’s previous work as a small parts assembler,
retail manager, and courier. (Tr. 57). The VE also stated that the person could
perform additional jobs that exist in significant numbers in the national
economy such as cashier, mail clerk, and counter attendant. (Tr. 58).
The VE also stated that the person would be unable to retain
employment if she were off task fifteen percent of the day, absent more than
once a month, or needed to lie down for more than a third of the day. However,
if the person was unable to sit for more than thirty minutes or could only walk
9

a block without resting the jobs would remain as they primarily involve static
standing. (Tr. 59-60). At the conclusion of the hearing, plaintiff’s attorney
attempted to ask plaintiff additional questions but the ALJ did not allow
further questioning. (Tr. 61).
3. Medical Records
Plaintiff’s records contain a history of mental and physical health
treatment. Throughout plaintiff’s medical records she has a history of
hypertension, depression, obesity and back pain. (Ex. Tr. 278, 334, 402, 407,
416, 420). Plaintiff’s mental health records began in April 2012 when she
reported to her primary care physician, Dr. Megan Neely, with a severe episode
of depression. (Tr. 285-86). Dr. Neely prescribed plaintiff Paxil and Lunesta to
help her decrease her anxiety and depression and to help her reset her sleep
pattern. (Tr. 286). Plaintiff returned the next month and noted an improvement
in her depression symptoms. (Tr. 283-84). In June 2012, plaintiff returned to
Dr. Neely still doing well on Paxil and sleeping well with Lunesta. (Tr. 280-82).
Plaintiff’s final medical notes involving depression were from July 2012. (Tr.
278-79). Dr. Neely noted that plaintiff had “significant improvement” in her
symptoms and plaintiff was doing well. (Tr. 278-79).
Plaintiff’s physical medical history records began in December 2010. (Tr.
367). She presented to the Orthopedic Center of St. Louis with neck pain and
headaches that radiated into her shoulders. She had a large disc herniation at
C6-7 and a smaller one at C5-6. (Tr. 367). Later that month, plaintiff had a

10

microdiscectomy 2 at C5-6 and C6-7, and anterior cervical fusion at C5-6 and
C6-7 with threaded allograft. (Tr. 386). At plaintiff’s follow-up appointments
with the Orthopedic Center, the records indicate plaintiff recovered fairly well.
(Tr. 361, 362, 363, 364, 365).
In January 2012, plaintiff returned to the Orthopedic Center and
reported pain in her low back to left buttock, left posterior thigh, and left
posterior calf. She had decreased plantar flexion on the left and her sensation
was decreased on the left side. Dr. Matthew Gornet reviewed plaintiff’s
radiographs and stated that the MRI displayed a significant loss of disc height
at L5-S1. He stated that this would correlate with her physical exam and
symptoms. Dr. Gornet prescribed two weeks of oral steroids and recommended
following up in six weeks for a new MRI. (Tr. 361). In March 2012, plaintiff
returned to the Orthopedic Center for a follow up and her MRI revealed disc
herniation and annular tear in the foramen on the left at L5-S1 with a smaller
protrusion at L4-5. Dr. Gornet recommended steroid injections and a follow up.
(Tr. 360).
In April 2012, plaintiff saw Dr. Gornet for a follow-up. The steroid
injections did not provide relief and he recommended laminotomy and
foraminotomy 3 left L5-S1 with microdiscectomy. (Tr. 359). In early June 2012,

2

A microdiscectomy is a surgical procedure to remove the damaged portion of a herniated disc
in the spine. http://www.mayoclinic.org/tests-procedures/diskectomy/basics/definition/prc20013864
3

A Laminotomy is the removal of a small portion of the ligaments and lamina to decrease the
chance of postoperative spinal instability. A foraminotomy is the removal of bone around the

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plaintiff saw Dr. Neely for a pre-operative evaluation. Dr. Neely noted plaintiff’s
“exercise capacity [was] great” and that she had four children with whom she
was very active. (Tr. 280). On June 12, 2012, plaintiff underwent the
laminotomy and microdiscectomy. (Tr. 379-81). The operation went well and
after surgery her leg pain improved. However, two weeks later plaintiff
presented at the emergency room because her pain returned and she had a
low-grade fever. (Tr. 358, 337).
After seeing Dr. Gornet, plaintiff was admitted to the hospital where it
was discovered that she had a post-operative staph infection. (Tr. 357-58, 27879). Dr. Gornet drained the surgical site and started plaintiff on antibiotics. (Tr.
324, 331-36, 377-78). On a follow-up appointment with Dr. Gornet in
September 2012 plaintiff’s infections were gone but she still had some left
buttock and leg pain. Dr. Gornet recommended exercise and convalescence.
(Tr. 356).
In January 2013, plaintiff began seeing Dr. Brian Steinke at the
Orthopedic Center of Southern Illinois. (Tr. 425). She complained of lower back
pain on the left side and Dr. Steinke noted that plaintiff did not have resolution
of the pain she had before surgery. (Tr. 425, 420). Dr. Steinke recommended
plaintiff receive steroid injections. (Tr. 420). Plaintiff received the steroid
injections and returned to Dr. Steinke in May 2013. (Tr. 407, 12-17, 460, 468).
Dr. Steinke reviewed her latest MRI and noted that she had a collapsed disc
space between vertebrae where the nerve root exits the spinal canal.
http://www.mayfieldclinic.com/PE-Decompression.htm

12

but no significant foraminal stenosis or disc herniation. He ordered a nerve
conduction study and decided to base future treatment on the study’s results.
(Tr. 407). She returned the next month and her treatment notes indicate she
failed all conservative treatment including injections and physical therapy. (Tr.
402).
In June 2013, plaintiff began seeing neurologist Tomasz Kosierkiewicz
who reviewed plaintiff’s nerve conduction study and evaluated plaintiff. He
stated that the nerve conduction study was significant only for minimally
reduced compound muscle action potential on the left tibial nerve when
compared to the right. He referred plaintiff to physical therapy. (Tr. 470-73).
4. RFC Assessments
State agency physician C.A. Gotway, M.D., assessed plaintiffs physical
RFC in October 2012. (Tr. 65-69). He did not evaluate plaintiff but reviewed her
records. He opined that plaintiff could occasionally lift or carry twenty pounds
and frequently lift or carry up to ten pounds. He felt plaintiff could stand, walk,
or sit for a total of six hours out of an eight hour workday. Dr. Gotway stated
that plaintiff could frequently climb ramps, stairs, ladders, ropes, and
scaffolds. Additionally, she could frequently stoop, kneel, crouch, and crawl.
(Tr. 67).
In February 2013, state agency physician, Dr. Charles Kenney, M.D.,
also reviewed plaintiff’s medical records and provided a physical RFC
assessment. (Tr. 75-79). His impressions mirrored those of Dr. Gotway. (Tr. 76-

13

77). He noted that while plaintiff was having buttock and leg pain she was
functioning relatively well. (Tr. 77).
Analysis
Plaintiff contends that the ALJ erred in forming her credibility
assessment and in the RFC analysis. As plaintiff relies in part on her testimony
for her arguments, the Court will first consider her argument that the ALJ
erred in her 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
14

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).
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.
The ALJ presented several reasons she felt plaintiff was not credible, and
plaintiff presents lengthy arguments as to why she believes the ALJ’s analysis
is flawed. For the sake of clarity, this Court will review the credibility analysis
in the manner it is presented within the ALJ’s opinion.
The ALJ first discussed plaintiff’s function reports and noted several
inconsistencies between the two reports plaintiff submitted. She looked at the
fact that plaintiff stated she did not have the capacity to handle the finances in
her first report, but six months later reported no problems in this area. The
ALJ noted that plaintiff reported she did not cook on her own but also reported
fixing dinner was part of her daily routine. ALJ Ferrer also mentioned portions
of plaintiff’s testimony that were in contradiction to her function reports, such
as her inability to dust and her enjoyment of reading. The ALJ noted
inconsistences within the distances plaintiff stated she could walk as well. The
ALJ explained that these inconsistencies throughout the record undermined
plaintiff’s credibility. (Tr. 22).
15

The ALJ went on to opine that plaintiff’s admitted activities were contrary
to her testimony that she had more difficulty sitting than any other postural
positioning. She also looked at the objective medical records and noted that
plaintiff’s clinical findings did not support plaintiff’s testimony and reported
limitations. She provides examples like reports of no pain, a doctor’s note that
indicated plaintiff had great exercise capacity from keeping up with her
children, and several medical records indicating she had normal motor,
sensation, and reflexes. (Tr. 23).
Plaintiff argues that the ALJ erred here by not performing a longitudinal
analysis of the evidence. As plaintiff notes, ALJs must view the record as a
whole and to attempt to find a reason why any discrepancies within the record
exist. 20 C.F.R. § 1529(c)(3), SSR 96-7p. Plaintiff claims that the ALJ failed to
consider the fact that her levels of functioning were highly variable. She also
contends that the ALJ ignored relevant medical and non-medical evidence
throughout the record to form her credibility assessment. The Seventh Circuit
has held that taking a “sound bite” approach to the record is error. Scrogham
v. Colvin, 765 F.3d 685 (7th Cir. 2014). The ALJ here, however, looked at all
the evidence on record and did not demonstrate plaintiff’s argued “sound bite”
approach.
Plaintiff cites a litany of examples from the record to demonstrate the
ALJ’s failure to consider evidence in opposition to her opinion. However, as the
Commissioner points out, the ALJ does discuss many of the examples plaintiff
cites. For example, plaintiff states that the ALJ failed to discuss her ER
16

treatment from July 29, 2012. The ALJ discussed this portion of the record and
noted plaintiff was diagnosed with acute low back pain. (Tr. 21, citing 334).
Plaintiff says the ALJ ignored when she had a visit with Dr. Gornet where she
was scheduled to have surgery to remove excess fluid from an infection.
However, the ALJ noted plaintiff’s infection and the surgery that followed. (Tr.
21).
Additionally, as the Commissioner notes, the ALJ is not required to
mention every piece of evidence within the record. The Seventh Circuit has held
that “[t]he ALJ’s failure to address [certain] specific findings . . . does not
render [her] decision unsupported by substantial evidence because an ALJ
need not address every piece of evidence in [her] decision.” Sims v. Barnhart,
309 F.3d 424, 429 (7th Cir. 2002). The ALJ provided a comprehensive review
of the entire record and a lengthy discussion of plaintiff’s credibility. Her failure
to mention every piece of evidence on record does not render her opinion
invalid.
Moreover, there is no evidence on record that indicates plaintiff’s status
was variable between the time of the first function report and the second. There
are only two doctor visits on record within that time frame and the ALJ
discussed these thoroughly. (Tr. 21). She noted that plaintiff had pain with
forward flexion and limited extension with pain. She noted that plaintiff was
diagnosed with significant degenerative changes and prescribed narcotics. The
ALJ discussed almost every portion of these records plaintiff claims she
ignored. (Tr. 21, citing 425). Plaintiff attempts to explain this by stating that
17

the credibility determination is confined to pages seven through nine and
therefore any medical evidence discussed outside of these pages is not relevant
to the credibility assessment. This is untrue as an ALJ’s credibility analysis is
not confined to one section and may be woven throughout her opinion. Sawyer
v. Colvin, 512 F. App’x 603, 608 (7th Cir. 2013). The ALJ here looked at the
exact records plaintiff argues she did not, but did it in another section of her
opinion. This is not error.
The ALJ also noted that plaintiff’s testimony regarding memory problems
was not supported by the record and was directly contradicted by her function
reports and doctors’ notes. (Tr. 22). Plaintiff provides no argument as to why
this discrepancy exists. While this inconsistency is small, it does represent an
instance where plaintiff’s claimed to have a functional limitation that was not
corroborated by the objective medical records.
Plaintiff argues that the ALJ failed to consider plaintiff’s medications and
treatment regimens. This is false. The ALJ explicitly discussed plaintiff’s pain
medications and reported ineffectiveness of treatment. The ALJ did not state
that the pain medications or treatment she received was insignificant. She did
explain, however, that there was a lack of clinical findings to support the
extreme limitations plaintiff claimed. For example, plaintiff claimed an extreme
limitation in her ability to walk even short distances. However, the ALJ noted
that the medical records did not indicate plaintiff had any limitations when it
came to walking. This does not mean plaintiff had no limitations in her ability
to walk, but it is indicative of a potential exaggeration. As noted above, the ALJ
18

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, 539 F.3d at 483. That is exactly what the ALJ
appropriately did in the case at hand.
The ALJ felt that plaintiff’s claims that she did not make beds, do
laundry, pull weeds, vacuum, sweep, and mop were not supported by a
physical examination because plaintiff “was able to produce heel, toe, and
tandem gait and had full 5/5 motor strength throughout.” (Tr. 23). Plaintiff
contends that the ALJ lacks the ability to make the link between the medical
findings and plaintiff’s subjective complaints of pain. This argument is well
taken.
The Seventh Circuit has held that it is impermissible for an ALJ to “play
doctor” and substitute her opinion for that of a doctor. Goins v. Colvin, 764
F.3d 677, 680 (7th Cir. 2014). Additionally, the ALJ is not permitted to
“cherry-pick” the evidence, ignoring the parts that conflict with her conclusion.
Myles v. Astrue, 582 F.3d 672, 678 (7th Cir. 2009). That is exactly what the
ALJ did here in determining one random clinical note was in opposition to
plaintiff’s claims about her activities of daily living. The ALJ also misconstrued
evidence when she noted that plaintiff could sit for five innings of her son’s
baseball games. (Tr. 23). Plaintiff testified that she had to take her son out of
baseball because she could no longer sit at the games. (Tr. 45-46). The ALJ
clearly erred in discounting plaintiff’s claims based on one treatment note and

19

out of context testimony. If the ALJ had based her credibility determination on
these errors, it would warrant reversal.
Ultimately, however, ALJ Ferrer considered other appropriate factors and
supported her conclusion with reasons derived from evidence. The Seventh
Circuit has held that not all of the ALJ’s reasons have to be sound as long as
“enough of them are.” Halsell v. Astrue, 357 Fed. Appx. 717, 722 (7th Cir.
2009).
As a whole, plaintiff’s arguments regarding the credibility analysis miss
the mark. As the Commissioner aptly notes, the ALJ did find that plaintiff’s
conditions could reasonably be expected to cause pain and other symptoms.
She discussed plaintiff’s medications and treatment history. However, she
found that based on subjective and objective information contained in the
record, some of plaintiff’s claims were not entirely credible.
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). See, SSR 96-7p. 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 Ferrer considered some of 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.

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The Court then turns to plaintiff’s first argument regarding her RFC.
Plaintiff contends that the ALJ’s RFC analysis was flawed because it failed to
explain how plaintiff’s severe impairment of being overweight was incorporated
into the assessment.
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. “As we have stated previously, an ALJ must consider the entire record,
but the ALJ is not required to rely entirely on a particular physician's opinion
or choose between the opinions any of the claimant's physicians. See Diaz v.
Chater, 55 F.3d 300, 306 n. 2 (7th Cir.1995). Obviously, the ALJ cannot be
faulted for omitting alleged limitations that are not supported by the record.
ALJ Ferrer determined plaintiff retained the RFC to perform light work
with some physical limitations. (Tr. 20). The ALJ stated within her decision that
she gave great weight to the state agency physicians’ opinions except for their
opinions regarding plaintiff’s ability to stoop. She reasoned that plaintiff’s
lumbar degenerative disc disease and back tenderness warranted a greater
limitation than frequent stooping. (Tr. 24). It is important to note that it is
proper for the ALJ to rely upon the assessment of state agency consultants.
Schmidt v. Barnhart, 395 F.3d 737, 745 (7th Cir. 2005); Cass v. Shalala,
8 F.3d 552, 555 (7th Cir. 1993). “State agency medical and psychological
consultants are highly qualified physicians and psychologists who are experts
in the evaluation of the medical issues in disability claims under the Act.”
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Social Security Ruling 96-6p, at 2.

Here, the opinions of Drs. Gotway and

Kenny provide sufficient support for ALJ Ferrer’s RFC assessment.
Plaintiff argues that the ALJ failed to elaborate upon or explain how
plaintiff’s status as overweight was factored into her RFC determination. First,
the ALJ discussed how plaintiff’s height and weight throughout her records
yields a body mass index that qualifies as “overweight.” (Tr. 21). The ALJ stated
that she considered plaintiff’s weight in determining her RFC and that she
found “no further residual functional capacity limitation resulting from her
overweight status.” (Tr. 23).
Plaintiff maintains that this is insufficient reasoning because the ALJ did
not state how she found plaintiff being overweight to qualify as a severe
impairment. Essentially, plaintiff argues that there is no reason for the ALJ to
have included “overweight” as a severe impairment. Plaintiff does not argue
that the ALJ erred by not including greater limitations, but that the
classification of being overweight as a severe impairment was error in and of
itself.
This Court will assume arguendo that the ALJ erred in including
“overweight” as a severe impairment because she failed to adequately explain
her reasoning why. The Seventh Circuit has repeatedly held that “the absence
of rationale may constitute harmless error if the agency’s decision is
overwhelmingly supported by the record and thus remand would be pointless.”
Mueller v. Colvin, 524 Fed. Appx. 282, 285 (7th Cir. Ill. 2013); See also,
Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir. 2010); Allord v. Barnhart,
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455 F.3d 818, 821-22 (7th Cir. 2006). Additionally, the Seventh Circuit has
stated that to determine if an error is harmless, “we look at the evidence in the
record to see if we can predict with great confidence what the result on remand
will be.” McKinzey v. Astrue, 641 F.3d 884, 892 (7th Cir. Ill. 2011). Here,
ALJ Ferrer did not base her RFC assessment on the inclusion of this
impairment and there is no indication this impairment altered her analysis in
any way. This Court can say with great confidence that if this case was
remanded and the severe impairment of “overweight” was not included the
result would be the same. Therefore, this inclusion is, at worst, harmless error.
If, as the Commissioner notes, plaintiff provided additional substantiated
limitations due to being overweight that the ALJ failed to include, a reversal
could be warranted. However, plaintiff does not make this argument and the
Seventh Circuit has stated that a “claimant must articulate how her obesity
limits her functioning and exacerbates her impairments.” Hisle v. Astrue, 258
Fed. Appx. 33, 37 (7th Cir. Ind. 2007); See also, Skarbek v. Barnhart, 390
F.3d 500, 504 (7th Cir. 2004); Dornseif v. Astrue, 499 Fed. Appx. 598, 600
(7th Cir. Ill. 2013). This Court fails to see the inclusion of being overweight as
a severe impairment as error and plaintiff’s argument is rejected.
In sum, plaintiff’s argument on both of her points 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 Ms. Pierce is disabled, the ALJ’s decision must
be affirmed if it is supported by substantial evidence, and the Court cannot
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make its own credibility determination or substitute its judgment 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). ALJ
Ferrer’s decision is supported by substantial evidence, and so must be
affirmed.
Conclusion
After careful review of the record as a whole, the Court is convinced that
ALJ Ferrer 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 Kristina Pierce’s application for disability benefits is
AFFIRMED and plaintiff’s motion for summary judgment is DENIED.
The clerk of court shall enter judgment in favor of defendant.
IT IS SO ORDRED.
DATE: March 14, 2016.
s/ Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE

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