Minnick v. Commissioner of Social Security

Filing 34

OPINION AND ORDER. The decision of the Commissioner of Social Security is AFFIRMED. Signed by Judge Joseph S Van Bokkelen on 9/27/13. (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION

Daniel P. Minnick,
Plaintiff,
v.

Case No. 1:12-CV-265-JVB-RBC

Carolyn W. Colvin,
Acting Commissioner of
Social Security,
Defendant.

OPINION AND ORDER
Plaintiff Daniel P. Minnick seeks judicial review of the final decision of Defendant
Carolyn W. Colvin, Acting Commissioner of Social Security, who denied his application for
Disability Insurance Benefits under the Social Security Act. For the following reasons, the Court
affirms.

A. Procedural Background
In October 2010, Plaintiff applied for Disability Insurance Benefits alleging disability due
to fibromyalgia and emphysema with an onset date of January 30, 2009. (R. at 139.) His claim
was initially denied on December 22, 2010 (R. at 76–79.), and upon reconsideration on February
11, 2011. (R. at 81, 85.) On February 22, 2011, Plaintiff requested a hearing before an
Administrative Law Judge (“ALJ”). (R. at 88–89.) The hearing was held before Warnecke Miller
on November 16, 2011, in Fort Wayne, Indiana. (R. at 33.) On December 21, 2011, the ALJ
determined that Plaintiff was not disabled. (R. at 14–28.) Following the Appeals Council’s denial
of Plaintiff’s request for review on May 31, 2012, the ALJ’s opinion became final. (R. at 1–3.)

B. Factual Background
(1) Plaintiff’s Background and Testimony
Plaintiff was born in 1965. (R. at 40.) He has a high school diploma and a Commercial
Driver’s License. (R. at 42.) For twenty-four years Plaintiff was employed as a truck driver. (R.
at 42.) During his last fourteen years he hauled automotive parts, a job that required minimal
physical activity or lifting. (R. at 42, 44.) In the fall of 2008, Plaintiff was placed on short-term
disability for pain he experienced in his legs and hips. (R. at 44.) After taking time off for three
to four months, he returned to work for two weeks before he was laid off. (R. at 45.) During the
hearing, Plaintiff identified that his Commercial Driver’s License was valid, but recognized that
it would expire in 2012. (R. at 50.) He further acknowledged that he was uncomfortable driving
because he feared that if his legs became numb he would be unable to stop the vehicle by
braking. (R. at 50.)
Plaintiff described pain primarily in his hips and legs, but also experienced headaches and
migraines frequently. (R. at 45–46.) The pain in his legs occurred four or five days a week and
often would travel through his arms, hands and wrists. (R. at 46.) As of the hearing date, Plaintiff
had spent the previous ten months in pain management where he received numerous narcotics
including morphine, methadone, and OxyContin, among others; all of which, according to
Plaintiff, failed to alleviate the pain. (R. at 51, 54.) The only time Plaintiff felt normal in the past
three years was after he received two shots of morphine; yet, after the morphine wore off, the
pain returned. (R. at 47.) Dr. Kachmann recommended and began the process of weaning
Plaintiff off the narcotics and also suggested that Plaintiff engage in some form of exercise, such
as walking for a half hour each day. (R. at 51.) In a further attempt to alleviate the pain, Plaintiff

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received aquatic therapy, but stated that after completing ten out of the twelve prescribed
sessions the final two sessions were suspended because the therapy was not helping. (R. at 58.)
At the hearing, Plaintiff identified that his overall pain level was consistently an eight out
of ten, with ten signifying pain severe enough to warrant a visit to the emergency room. (R. at
54.) He testified that he could sit for about thirty minutes at the most, and stand for about twenty
minutes at a time. (R. at 54.) A doctor prescribed him a cane two years ago; however, at times
his hands would tense up preventing him from using the cane. (R. at 55). On average, this
occurred about three to four times a week for two hours at a time. (R. at 56.) Plaintiff was also
prescribed a walker that he used on average three times a month. (R. at 57.)
When discussing his physical limitations, Plaintiff testified that he has trouble reaching
over his head, raising his arms forward to shoulder level, and grasping items. (R. at 57.) Further,
he struggled to pick things up from the ground, squat, twist, bend, and also experienced difficulty
walking up or down stairs. (R. at 58.) He identified that the pain in his arms had limited his
ability to lift heavy items, such as a forty-pound bag of salt. (R. at 55.) However, he said that he
could carry a gallon of milk with each arm. (R. at 55.)
As of the hearing date, Plaintiff’s morning routine involved his wife packing his legs in
ice before he could lift himself from bed. (R. at 46.) After about an hour and a half, Plaintiff
claimed that his body was numb which permitted him to move to the kitchen for breakfast. (R. at
46.) Five hours after breakfast, he became exhausted and would again experience intense pain
which required him to lie down. (R. at 46.) Plaintiff testified that he was most comfortable when
lying down, and would lie down for three hours between 8 a.m. and 5 p.m. (R. at 59.) He
believed he could not go through an eight hour day without lying down. (R. at 59.) During this
time, he constantly elevated his legs which helped alleviate the strain on his hips. (R. at 59.) He

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also said that he had difficulty completing simple tasks like showering, putting on clothes, or
even sleeping. (R. at 59–60.)

(2) Medical Evidence
In November 2008, Dr. Zurcher diagnosed Plaintiff with moderately severe chronic
obstructive pulmonary disease (“COPD”) (R. at 229–230.) Two months later, Dr. Harvey,
Plaintiff’s primary care physician, suggested that Plaintiff “may have fibromyalgia.” (R. at 253.)
On January, 28, 2009, an x-ray revealed “mild hypertrophic degenerative spur formation at
several levels,” but revealed “no evidence of significant disc space narrowing.” (R. at 303.) In
November, Plaintiff underwent further x-rays evidencing disc space narrowing at C5-C6. (R. at
297.) An MRI taken in December of Plaintiff’s thoracic portion of the spine showed mild
degenerative changes and a mild degree of spinal stenosis at T3-T4 and T11-T12, although there
was no evidence of spinal cord compression or nerve root compression. (R. at 298.)
In June 2010, Dr. Hanus diagnosed Plaintiff with daily headaches and intermittent
migraines. (R. at 273.) During a July follow up, Dr. Hanus noted Plaintiff experienced
improvement with the headaches and diagnosed him with carpal pedal spasm, hyperventilation
syndrome, “probably some fibromyalgia with intermittent daily headaches and migraines,”
thoracic pain, and hypertension. (R. at 274.) Three months later, Plaintiff visited Dr. David
Campbell for a rheumatology consultation. (R. at 281.) Dr. Campbell recorded a positive straight
leg raise at thirty degrees bilaterally and a normal straight leg raise on the left. (R. at 281.) Dr.
Campbell concluded that he “[did] not currently find evidence of fibromyalgia [or] connective
tissue disease.” (R. at 281.)
Plaintiff met with Dr. Onamusi for an examination concerning his disability claim on
November 18, 2010. Dr. Onamusi recorded that Plaintiff “walked with a short strided gait and
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appeared to be slightly unsteady and in mild to moderate discomfort as he walked.” (R. at 312.)
According to Dr. Onamusi’s report, Plaintiff could not squat, kneel, or stand on his heels or toes.
(R. at 312.) It was Dr. Onamusi’s impression that Plaintiff suffered from fibromyalgia with
generalized muscle pain and fatigue and COPD with intermittent wheezing. (R. at 313.) Onamusi
reasoned that “considering [Plaintiff]’s current clinical and functional status it [wa]s [his]
opinion that [Plaintiff] may have difficult engaging successfully in gainful employment.” (R. at
313.)
Dr. Sands, also a medical consultant for the Disability Determination Bureau, performed
a physical Residual Functional Capacity (“RFC”) assessment on November 30, 2010, and
concluded that the claimant could occasionally lift ten pounds, frequently lift less than ten
pounds, stand for at least two hours in an eight-hour work day, sit for six hours in an eight-hour
work day, occasionally climb ramps or stairs, balance, or stoop, but could never climb ladders,
ropes, or scaffolds, kneel, crouch, or crawl. (R. at 320–21.) Less than a month later, Plaintiff
visited Dr. Harvey, a neurology specialist, who diagnosed him with chronic pain syndrome. (R.
at 336.) In early January 2011, Dr. Karl diagnosed Plaintiff with “lumbar radiculitis not
responding to conservative measures” and Plaintiff received an interlaminar lumbar epidural
steroid injection at L5-S1. (R. at 354.) The following day, Dr. Harvey prescribed Plaintiff a cane
and walker. (R. at 369–70.) After an additional injection failed to alleviate the pain, Plaintiff
underwent an MRI of his lumbar spine which illustrated degenerative disc disease at L4-L5 and
L5-S1. (R. at 372, 445.)
On March 15, 2011, Dr. Williams, an orthopedic surgeon, diagnosed Plaintiff with
lumbar herniated/ruptured disc but noted that no acute changes or significant abnormalties were
identified on the lumbar x-rays (R. at 429.) The following month, Plaintiff visited Dr. Song, who

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recorded that Plaintiff likely suffered from chronic pain syndrome with a central disc extrusion at
L4-5. (R. at 414.) On April 12, 2011, Plaintiff visited Dr. Karl for a follow-up examination. Dr.
Karl documented a limited range of motion in Plaintiff’s left arm and legs, with a full range of
motion in Plaintiff’s right arm. (R. at 407.) However, Plaintiff’s spine flexion, extension, and
rotation were limited, he was experiencing cervical pain, and his right and left straight leg raise
was positive which indicates a herniated disk. (R. at 407.)
Dr. Kachmann, a neurosurgeon, evaluated Plaintiff on August 18, 2011, and identified
that Plaintiff was “hypersensitive to touch over the skin and musculature in the cervical, thoracic,
and lumbar spine, consistent with fibromyalgia.” (R. at 460.) Dr. Kachmann also noted that
Plaintiff’s motor, sensory, and reflex examination was normal. (R. at 460.) He concluded that
Plaintiff suffered from “centralized cerebral” pain because the x-rays did not illustrate any
problems connected to Plaintiff’s pain. (R. at 461.) During an October follow-up examination,
Dr. Kachmann diagnosed Plaintiff with chronic severe pain, severe fibromyalgia, migraine
headaches, and anxiety and depression. (R. at 457.) In addition, Dr. Kachmann identified that
Plaintiff was “50% limited on flexion, extension, and rotation of the cervical, thoracic, and
lumbar spine . . . . [and] ha[d] hypersensitive muscles and skin.” (R. at 457.) Dr. Kachmann
identified “[Plaintiff] [wa]s clearly disabled. . . . [Plaintiff] clearly [could not] be reeducated for
work and [Dr. Kachmann] d[id]n’t think anyone would hire a person in such a terrible pain
condition. [Plaintiff could not] do any bending or twisting. . . . [Also,] [h]e [could not] lift more
than five pounds on a regular basis.” (R. at 458.)

(3) Vocational Expert’s Testimony
Vocational expert Sharon Ringenberg (“VE”) testified at Plaintiff’s November 16, 2011,
hearing before the ALJ. (R. at 62–68.) During the VE’s testimony, the ALJ provided the VE with
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three hypotheticals to evaluate, all of which included Plaintiff’s age, high school education and
prior work experience. (R. at 63–67.) The first scenario incorporated the limitations from the
RFC assessment. (R. at 63–64.) The VE concluded that, under this factual scenario, Plaintiff
could not perform his past relevant work. (R. at 64.) However, Plaintiff could complete
sedentary, special vocational preparation two work, meaning work that requires up to a month
for training. (R. at 64–65.) Examples of positions in northeast Indiana included charge-account
clerks (3,000 existing jobs in Indiana), call-out operators (600 existing jobs in Indiana), and
optical final assembler (300 existing jobs in Indiana). (R. at 64–65.)
For the second hypothetical, the ALJ added that the individual was unable to
“understand, remember or carry out detailed instruction and could not tolerate sudden or
unpredictable workplace changes.” (R. at 65.) The VE concluded that Plaintiff could perform
sedentary work with this limitation. (R. at 65.) The VE opined that under the second scenario the
job of final assembler would remain and added the job of an addresser (300 existing jobs in
Indiana) and telephone order clerk (1,000 existing jobs in Indiana). (R. at 65.)
Under the third factual scenario, the ALJ proposed a hypothetical corresponding with
Plaintiff’s subjective view of his pain and limitations, as described throughout the hearing. (R. at
42–61.) The ALJ added that the individual could bilaterally handle objects on an occasional
basis, would need to elevate his legs to waist level several times daily, would need two, hourlong breaks each day, and would consistently require three or more unscheduled absences per
month. (R. at 66.) The VE concluded that these circumstances would preclude all employment.
(R. at 66.) First, the VE reasoned that elevating one’s legs to waist level would be too high. (R. at
66.) Further, typical on-task requirements are around 80% to 85% of the work day, taking into
consideration two fifteen-minute breaks, both morning and afternoon, and a half an hour lunch

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break. (R. at 66–67.) Thus, two breaks of sixty minutes each amounted to too much time offtask. (R. at 67.) Finally, missing work one or two days a month is tolerated, but two or more days
creates issues with maintaining competitive employment. (R. at 67.)

(4) ALJ’s Decision
On December 21, 2011, the ALJ issued an unfavorable decision that Plaintiff was not
disabled from January 30, 2009, through the date of the decision. (R. at 17.) The ALJ determined
that Plaintiff suffered from multiple severe impairments: obesity; fibromyalgia; chronic
obstructive pulmonary disease; lumbar degenerative disc disease; hypertension; centralized
cerebral pain resulting from anxiety and depression; and adjustment disorder. (R. at 19.)
Nevertheless, the ALJ concluded that these impairments did not meet any of the impairments
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 20.)
Further, the ALJ found that the claimant had not engaged in any substantial gainful
activity since the alleged onset date (R. at 19), and was unable to perform any past relevant work
(R. at 26). However, the ALJ concluded that in considering Plaintiff’s age, education, work
experience, and residual functional capacity, there were other jobs that existed in significant
numbers that Plaintiff could perform. (R. at 27.)

C. Standard of Review for Disability Insurance Benefits Claim
Under 42 U.S.C. § 405(g), this Court has the authority to review Social Security Act
claim decisions. 40 U.S.C. § 405(g) (2006). The Court will uphold an ALJ’s decision if it is
reached under the correct legal standard and supported by substantial evidence. Briscoe ex rel.
Taylor v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005). Substantial evidence consists of “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

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Richardson v. Perales, 402 U.S. 389, 401 (1971). This Court will not reconsider facts, re-weight
the evidence, resolve conflicts in the evidence, decide questions of credibility, or substitute its
judgment for that of the ALJ. Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir. 2005). However,
this Court will assess whether the ALJ built an “accurate and logical bridge from the evidence to
his conclusion so that, as a reviewing court, we may access the validity of the agency’s ultimate
findings and afford a claimant meaningful judicial review.” Scott v. Barnhart, 297 F.3d 589, 595
(7th Cir. 2002).

D. Disability Standard
To qualify for DBI benefits, a claimant must prove that he suffers from a disability. A
disability is 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 12 months[.]” 42
U.S.C. § 423(d)(1)(A). The Social Security regulations set forth a five-step test used to assess
whether a claimant qualifies for disability benefits. Pursuant to these regulations, a claimant must
establish:

(1) he is not presently employed; (2) his impairment is severe; (3) his impairment
is listed or equal to a listing in 20 C.F.R. § 404, Subpart P, Appendix 1; (4) he is
not able to perform his past relevant work; and (5) he is unable to perform any
other work within the national and local economy.
Scheck v. Barnhart, 357 F.3d 697, 699–700 (7th Cir. 2004).
An affirmative answer leads either to the next step or, on steps three and five, to a finding
that the claimant is disabled. Zurawski v. Halter, 245 F.3d 881, 886 (7th Cir. 2001). A negative
answer at any point other than step three stops the inquiry and leads to a finding that the claimant

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is not disabled. Id. The burden of proof lies with the claimant at every step except the fifth,
where it shifts to the Commissioner. Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000).

E. Analysis
Plaintiff contends that the Commissioner’s decision is not based on substantial evidence
as required under 42 U.S.C. § 405(g). Plaintiff asserts that the ALJ committed four legal errors:
(1) the ALJ failed to adequately consider whether the Plaintiff’s impairments met or medically
equaled Listing 1.04; (2)the ALJ failed to give adequate weight to Plaintiff’s primary physician;
(3) the ALJ erred in his assessment of Plaintiff’s RFC; and (4) the ALJ erred in his assessment of
Plaintiff’s credibility.

(1) The ALJ’s decision that Plaintiff did not meet or medically equal Listing 1.04 is supported
by substantial evidence.
Plaintiff contends that the ALJ failed to adequately consider whether Plaintiff’s
impairments met or medically equaled Listing 1.04. As to this listing, the ALJ stated
[t]he claimant’s degenerative disc disease was evaluated under Listing 1.04
(disorders of the spine). The evidence does not establish the presence of nerve
root compression, spinal arachnoiditis, or spinal stenosis resulting in
pseudoclaudication, as required by that listing.
(R. at 20.) The Court finds that the ALJ’s statement that the evidence does not meet the
requirements under Listing 1.04 was supported by substantial evidence throughout the ALJ’s
opinion and although the ALJ discussion was cursory, such error does not warrant remand.
At the outset, Plaintiff bears the burden of proving all the required listing level findings.
Sullivan v. Zebley, 493 U.S. 521, 530 (1990). Under the regulations, Plaintiff must establish that
all of the criteria within a listing were satisfied concurrently for 12 months. 20 C.F.R. §§
404.1509. In analyzing a specific listing, an ALJ should mention the particular listings

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considered and failure to do so, if coupled with a perfunctory analysis, may necessitate
remanding the case. Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004). The ALJ is not
required to divulge every piece of evidence in the record that supports a listing. Rice v. Barnhart,
384 F.3d 363, 371 (7th Cir. 2004). “[T]he ALJ may rely solely on opinions given in Disability
Determination and Transmittal forms and provide little additional explanation only so long as
there is no contradictory evidence in the record.” Ribaudo v. Barnhart, 458 F.3d 580, 584 (7th
Cir. 2006). Remand is not appropriate if the evidence Plaintiff contends the ALJ ignored or
misstated does not establish a disability under the listing. See Sims v. Barnhart, 309 F.3d 424,
429 (7th Cir. 2002).
In support of his conclusion, the ALJ stated that he relied upon the findings of “the
medical consultants who reviewed the case at the initial and reconsideration levels,” Dr. Sands
and Montoya, both of whom concluded that Plaintiff did not meet or medically equal any listing
impairment. (R. at 20.) Further, the ALJ’s determination specifically referenced Listing 1.04. (R.
at 20.) Although, the ALJ’s analysis was cursory, little more was required since Plaintiff clearly
did not meet the listing requirement for a period of 12 months, and Plaintiff failed to point to any
medical opinion concluding that Plaintiff met or medically equaled Listing 1.04. See Whalen v.
Astrue, 630 F. Supp. 2d 940, 949 (N.D. Ill. 2009). In other words, although the ALJ provided a
cursory assessment of the evidence favorable to [Plaintiff], the record is devoid of evidence that
would prove plaintiff satisfied all of the criteria under Listing 1.04 concurrently for 12 months.
20 C.F.R. §§ 404.1509.
Listing 1.04A requires evidence of “nerve root compression characterized by neuroanatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with
associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if

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there is involvement of the lower back, positive straight-leg raising test (sitting and supine).” 20
C.F.R. Part 404, Subpart P, App. 1, 1.04A. In support of this listing, Plaintiff identifies that as
early as December 14, 2009, an MRI revealed that Plaintiff’s thoracic spine demonstrated a mild
degree of spinal stenosis; however, there was no evidence of nerve root compression as required
under Listing 1.04. (R. at 298.) Further, in October 2010, Dr. Campbell recorded a positive
straight leg raise at only thirty degrees. (R. at 281.) Even Dr. Onamusis, who examined Plaintiff
concerning his disability claim, recognized that Plaintiff was unable to squat, kneel, or stand on
his heels or toes. (R. at 312.) An inability to squat or walk on the toes or heels can provide
evidence of significant motor loss, as required under Listing 1.04A. 20 C.F.R. Part 404, Subpart
P, App. 1, 1.00E1. However, all of the evidence brought forth by Plaintiff fails to meet or
medically equally Listing 1.04A because Plaintiff did not prove or point to evidence in the record
showing that all of the criteria under Listing 1.04A was satisfied concurrently for 12 months.
Plaintiff also contends that the ALJ failed to consider whether he met or medically
equaled listing 1.04C. Listing 1.04C pertains to “[l]umbar spinal stenosis resulting in
pseudoclaudication, established by findings on appropriate medically acceptable imaging,
manifested by chronic nonradicular pain and weakness, and resulting in inability to ambulate
effectively . . . .” 20 C.F.R. Part 404, Subpart P, App. 1, 1.04C. Ineffective ambulation is defined
as “generally [ ] having insufficient lower extremity functioning . . . to permit independent
ambulation without the use of a hand-held assistive device(s) that limits the functioning of both
upper extremities.” 20 C.F.R. Part 404, Subpart P, App. 1, 1.00B2b(1). Examples include, among
others, the inability to walk without using a walker or the inability to walk without using two
crutches or canes. 20 C.F.R. Part 404, Subpart P, App. 1., 1.00B2b(2). The record identifies that
Plaintiff requires the use of a cane when walking or standing, but this cane does not restrict the

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use of both of Plaintiff’s upper arms as defined in the regulations. Plaintiff contends that he was
prescribed a walker for ambulation, but admitted during his testimony that he uses the walker
“once a week” and sometimes “more often than that.” (R. at 57.) Regardless, Plaintiff’s use of a
walker once a week would not meet the requirement of Listing 1.04C because the criteria
thereunder was not satisfied for a concurrent period of 12 months. 20 C.F.R. §§ 404.1509
Although Plaintiff contends that the ALJ’s failure to consider any evidence was in error,
the Court cannot agree. The record is lacking in evidence that proves Plaintiff met or medically
equaled any of the Listing 1.04 criteria concurrently for 12 months, and the Court finds that the
ALJ’s statement rejecting that Plaintiff satisfied Listing 1.04 was supported by substantial
evidence throughout the record and although the ALJ’s discussion was cursory, such error does
not warrant remand.

(2) The ALJ’s decision considering the weight to afford each medical opinion was supported
by substantial evidence.
Plaintiff claims the ALJ erred in his assessment of Plaintiff’s RFC because he failed to
give controlling weight to treating physician Dr. Kachman, improperly gave great weight to State
agency reviewing physicians, and failed to properly consider the opinions of other physicians.
The Court finds the ALJ provided substantial justification for his decision.
An ALJ must afford a treating doctor’s opinion controlling weight if it is well-supported
and not inconsistent with other substantial evidence in the record. 20 C.F.R. § 404.1527(c)(2). “If
an ALJ does not give a treating physician’s opinion controlling weight, the regulations require
the ALJ to consider the length, nature, and extent of the treatment relationship, frequency of
examination, the physician’s specialty, the types of tests performed, and the consistency and

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supportability of the physician’s opinion.” Scott v. Astrue, 647 F.3d 734, 740 (7th Cir. 2011); see
also 20 C.F.R. § 404.1527(c)(2).
Plaintiff contends that the ALJ erred by providing deficient reasons for not granting
controlling weight to Dr. Kachmann’s medical opinion. However, the ALJ provided numerous
reasons as to why Dr. Kachmann’s opinion was inconsistent with other evidence and thus not
entitled to controlling weight. The ALJ opined that Dr. Kachmann’s medical evaluations from
August 2011 and October 2011 “read differently.” (R. at 24.) The ALJ pointed out that in August
2011, Dr. Kachmann attributed Plaintiff’s condition to “centralized cerebral pain” because the xrays failed to illustrate any issues connected to Plaintiff’s pain. (R. at 461.) Dr. Kachmann noted
that Plaintiff’s motor, sensory, and reflex examination was normal, diagnosed Plaintiff with
generalized fibromyalgia, anxiety, and mild depression, and encouraged him to exercise and to
read books relating to “centralized cerebral pain.” (R. at 461.) Two months later, during
Plaintiff’s follow up examination, Dr. Kachmann recognized that Plaintiff applied for Social
Security Disability and in direct contradiction to his August assessment opined that “[Plaintiff]
[wa]s clearly disabled. . . . [could not] be reeducated for work and [Dr. Kachmann] d[id]n’t think
anyone would hire a person in such a terrible pain condition. [Plaintiff could not] do any bending
or twisting. . . . [or] lift more than five pounds on a regular basis.” (R. at 458.)
The ALJ concluded that Dr. Kachmann’s August and October assessments
directly contradicted one another and provided substantial evidence as to why Dr.
Kachmann’s opinion was not given controlling weight. First, the ALJ recognized that Dr.
Kachmann’s encouragement that Plaintiff exercise indicated some level of physical
functionality in August, although he later claimed in October that Plaintiff was “clearly
disabled.” (R. at 458.) Even if this statement was not directly contradictory, Dr.

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Kachmann’s assessment of Plaintiff as “clearly disabled” is an opinion on an issue that is
reserved for the ALJ and thus not afforded controlling weight. See 20 C.F.R. §
404.1527(d)(1). Second, during the August assessment Dr. Kachmann encouraged
plaintiff to read books relating to his “centralized cerebral pain,” but then two months
later claimed Plaintiff “clearly cannot be re-educated for work.” (R. at 458, 461.) Last,
the ALJ identified that Dr. Kachmann’s statement concerning hiring practices of someone
in terrible pain, falls outside of Dr. Kachmann’s neurological expertise and thus, the ALJ
accorded Dr. Kachmann’s opinion limited weight. Nevertheless, the ALJ adopted Dr.
Kachmann’s assessment that Plaintiff could not lift more than five pounds on a regular
basis, which was adopted in the ALJ’s RFC and which was consistent with the ALJ’s
determination that Plaintiff may perform sedentary work. (R. at 458.)
As an alternative argument, Plaintiff claims that even if Dr. Kachmann’s opinion
deserved limited weight, the ALJ failed to consider the “length, nature, and extent of the
treatment relationship, frequency of examination, the physician’s specialty, the types of
tests performed, and the consistency and supportability of the physician's opinion.” Scott,
647 F.3d at 740; see also 20 C.F.R. § 404.1527(c)(2). The Court disagrees with this
argument. First, although the ALJ did not specifically identify each of these factors and
provide his assessment, throughout his analysis of weight afforded to Dr. Kachmann’s
opinion, the ALJ referenced many of these factors. For instance, the ALJ pointed out that
Dr. Kachmann was a neurologist, that August 2011 and October 2011 were the only
times Plaintiff visited Dr. Kachmann, and also discussed the consistency and
supportability of Dr. Kachmann’s opinion. Thus, the Court cannot agree with Plaintiff
that these factors were not adequately considered by the ALJ.

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Plaintiff also contends that the ALJ erred by failing to properly weigh and explain
the rationale for rejecting the consultative examiner’s opinion that the claimant could not
properly sustain work activity. (Pl.’s Br. 23.) Again, the Court finds that this is an issue
reserved to the ALJ because it pertains to whether Plaintiff meets the statutory definition
of disability. See 20 C.F.R. § 404.1527(d)(1). As such, the ALJ’s determination that this
assessment received “limited weight” was proper.
Last, Plaintiff argues that the ALJ erred by relying on the state agency
consultant’s opinion for the RFC findings without evaluating it within the regulatory
factors. In weighing medical opinions, the Court must evaluate each medical opinion and
consider the examining relationship, the treatment relationship, supportability,
consistency, specialization, and other factors. 20 C.F.R. § 404.1527(c). “[The Court]
generally give[s] more weight to the opinion of a specialist about medical issues related
to his or her area of specialty than to the opinion of a source who is not a specialist.” 20
C.F.R. § 404.1527. Further, “[u]nless a treating source’s opinion is given controlling
weight, the [ALJ] must explain in the decision the weight given to the opinions of a State
agency medical or psychological consultant or other program physician, psychologist, or
other medical specialists . . . .” 20 C.F.R. § 404.1527(e)(2)(ii).
First, state agency medical consultants are experts in the Social Security disability
programs.” SSR 96-6p. However, the above-mentioned factors are general in nature and
identify only that an ALJ should “consider” the factors with regard to any medical
opinion. These factors are distinct from the factors that consider whether a treating
physician’s opinion receives controlling weight. The regulations used to assess the weight
to accord a treating physician’s opinion requires an ALJ “[to] always give good reasons .

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. . for the weight give[n] [a] treating source’s opinion.” 20 C.F.R. § 404.1527(c)(2). Yet,
the regulations assessing an opinion of a non-examining source only state that the ALJ
must “explain in the decision the weight given to the opinion[ ] . . . ”
The Court finds that the ALJ sufficiently explained in his decision the weight
afforded to the non-examining sources. Here the ALJ gave “significant weight” to the
State agency’s opinion when considered in conjunction with Dr. Kachmann’s symptoms
relating to “centralized cerebral pain.” (R. at 25.) This evidences that the ALJ considered
the supportability and consistency of the non-examining sources. Further, the ALJ found
that the characterization of “centralized cerebral pain” best aligned with the record as a
whole, and afforded limited weight to the State agency’s psychologists determination
because the record illustrated more limitations than assessed by the state psychologists.
(R. at 26.) Again, this supports that the ALJ considered the supportability and consistency
of the state agency opinions with the record. Thus, in accordance with the regulations, the
ALJ correctly identified the weight afforded to the state agency’s opinion. See 20 C.F.R.
§ 404.1527(e)(2)(ii).
The Court finds the ALJ’s assessment of the amount of weight afforded to the
state agency physicians and psychologists sufficiently satisfies the burden that the ALJ
consider the regulatory factors. Further, the Court concludes that the ALJ’s assessment of
weight afforded to each physician’s opinion is supported by substantial evidence.

(3) The ALJ did not err in his assessment of Plaintiff’s RFC.
Plaintiff points to various medical diagnoses and observations and claims that the ALJ
“ignored objective medical evidence demonstrating that [Plaintiff] lacked the exertional capacity
to sustain even the modest exertional demands of sedentary work.” (Pl.’s Br. 25.) Plaintiff
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contends that the ALJ failed to build an accurate and logical bridge between the ALJ’s
conclusion and the evidence. The Court cannot agree with Plaintiff’s contention and instead finds
that the ALJ’s RFC assessment is supported by substantial evidence.
Under the regulations, an ALJ must evaluate the medical evidence, resolve conflicts and
determine a claimant’s RFC. 20 C.F.R. §§ 404.1527, 416.927. In doing so, an ALJ must base the
RFC determination “on all of the relevant evidence in the case record, including . . . the
individual’s symptoms and any . . . opinions about what the individual can still do despite his or
her impairment(s) [that were] submitted by an individual’s treating source or other acceptable
medical sources.” SSR 96-8p. An ALJ must “confront evidence that does not support his
conclusion and explain why it was rejected.” Kasarsky v. Barnhart, 335 F.3d 539, 543 (7th Cir.
2002). However, “[t]he ALJ need not provide a written evaluation of every piece of evidence,
but need only ‘minimally articulate’ his reasoning so as to connect the evidence to his
conclusions.” Knox v. Astrue, 327 Fed. App’x 652, 657–658 (7th Cir. 2009).
Plaintiff claims the ALJ ignored evidence of Plaintiff’s subjective symptoms, ignored his
need for a walker, and ignored his testimony concerning difficulty raising his arms above
shoulder level. At the outset, the ALJ began by discussing Plaintiff’s testimony and the pain
allegedly experienced in his legs, hips and back. (R. at 22.) The ALJ also noted Plaintiffs
“difficulty using his arms and hands due to pain and numbness” and his “limited ability to lift
and walk.” Although not discussed in as much detail as Plaintiff may desire, these statements
support the Court’s finding that the ALJ adequately considered Plaintiff’s subjective symptoms,
need for a walker, and difficulty with raising his arms. Further, as mentioned above, the ALJ was
not required to provide a written evaluation of each piece of evidence in the record. See Knox,

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327 Fed. App’x at 657–658. Thus, the Court concludes that the ALJ’s did not legally err in his
assessment of Plaintiff’s RFC.

(4) The ALJ’s determination that the Plaintiff was not credible is not patently wrong.
Last, Plaintiff asserts that the ALJ legally erred by improperly dismissing Plaintiff’s
testimony concerning his musculoskeletal pain and difficulty walking. Because the Court finds
that substantial evidence supports the ALJ’s credibility determination, the Court affirms the
ALJ’s findings.
The Seventh Circuit has recognized that “[b]ecause the ALJ is in the best position to
observe witnesses, we will not disturb h[is] credibility determinations as long as they find some
support in the record.” Dixon v. Massanari, 270 F.3d 1171, 1178–79 (7th Cir. 2001). The Court
will reverse an ALJ’s credibility determination only if Plaintiff establishes it was “patently
wrong.” Powers v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000). “Patently wrong” is a high burden.
Turner v. Astrue, 390 Fed. App’x. 581, 587 (7th Cir. 2010). “An ALJ’s credibility determination
need not be flawless.” Adams v. Astrue, 880 F. Supp. 2d 895, 905 (N.D. Ill. 2012) (citing Simila
v. Astrue, 573 F.3d 503, 516 (7th Cir. 2008)). Only when an ALJ’s determination lacks any
support or explanation will the Court declare it “patently wrong,” so as to require reversal. Elder
v. Astrue, 529 F.3d 408, 413–14 (7th Cir. 2008) (citations omitted). Thus, only if the ALJ
grounds his credibility determination in an unreasonable argument or observation will the
credibility finding be reversed. Sims v. Barnhart, 442 F.3d 536, 538 (7th Cir. 2006).
Here the ALJ determined that Plaintiff had the RFC to perform a restricted range of
unskilled sedentary work. (R. at 26.) After discussing that Dr. Kachmann’s findings of
“centralized cerebral pain” aligned with the record as a whole, the ALJ summarized his
credibility findings as follows:
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[I]t should be noted that giving credit to th[e] [psychological] analysis does not
provide [Plaintiff] with a finding of full credibility for all of his symptomatic
complaints. Instead, it provides a diagnosed explanation for his symptomatic
complaints, but the severity of the issue is still based on the medical record as a
whole and a credibility analysis. This analysis finds that the claimant is not fully
credible for the extent of pain and its impact on functionality. Reasonable weight
has been given to the claimant and his residual functional capacity in this case
reflects the functional abilities supported by the record as a whole.
(R. at 26.)
The issue is whether the ALJ supported this statement with an explanation and sufficient
evidence from the record, and the Court finds that he provided sufficient evidence as to why the
Plaintiff’s testimony was not credible. Most convincing, the ALJ recognized various
discrepancies between the record and Plaintiff’s testimony. First, Plaintiff was laid off as a truck
driver because of lack of work, as opposed to the alleged disabling impairments. (R. at 22.)
Second, Plaintiff testified he could sit for probably 30 minutes at most, but then sat for over 40
minutes at the hearing and sat for an hour during his psychological examination. (R. at 22.) The
ALJ also noted that during his testimony, Plaintiff exhibited “no pain-related behaviors, was not
shifting in his seat, and provided competent and relevant testimony in a calm and rational
manner.” (R. at 22–23.)
Each of the above-mentioned reasons supports the ALJ’s finding concerning Plaintiff’s
credibility as it relates to the intensity, persistence and limiting impact of Plaintiff’s symptoms.
Thus, the Court finds the ALJ’s decision concerning credibility is supported by substantial
evidence.

F. Conclusion
The Court finds that the ALJ adequately considered whether Plaintiff’s impairments met
or medically equaled Listing 1.04, the ALJ gave appropriate weight to Plaintiff’s primary
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physician, the ALJ did not err in his assessment of the RFC, and the ALJ also did not err in his
determination of Plaintiff’s credibility.
The Court affirms.
SO ORDERED on September 27, 2013.

S/ Joseph S. Van Bokkelen
JOSEPH S. VAN BOKKELEN
UNITED STATES DISTRICT JUDGE

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