David v. Commissioner of Social Security

Filing 25

OPINION AND ORDER: The decision of the Commissioner of Social Security is AFFIRMED. Clerk DIRECTED to enter Judgment in favor of the Commissioner of Social Security and against Plaintiff David. Signed by Magistrate Judge Susan L Collins on 4/1/2015. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
MARK R. DAVID,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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CAUSE NO. 1:14-CV-00155

OPINION AND ORDER
Plaintiff Mark R. David appeals to the district court from a final decision of the
Commissioner of Social Security (“Commissioner”) denying his application under the Social
Security Act (the “Act”) for Supplemental Security Income (“SSI”).1 (See Docket # 1.) For the
following reasons, the Commissioner’s decision will be AFFIRMED.
I. PROCEDURAL HISTORY
David applied for SSI in January 2011, alleging disability as of January 26, 2011.2 (Tr.
69, 181.) The Commissioner denied his application initially and upon reconsideration. (Tr. 6970.) David requested a hearing, but was incarcerated at the time and could not appear. (Tr. 133.)
On June 28, 2012, Administrative Law Judge Whitfield Haigler, Jr. (“ALJ”), dismissed David’s
request for hearing due to his failure to appear (Tr. 71-75), and David appealed that dismissal to

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All parties have consented to the Magistrate Judge. (Docket # 16); see 28 U.S.C. § 636(c).

David initially applied for Disability Insurance Benefits (“DIB”) as well, but his insured status expired in
September 2004 and his alleged onset date is not until January 2011. (Tr. 193-201); see 20 C.F.R. § 404.101(a)
(explaining that to qualify for DIB, a claimant must prove, among other things, that he became disabled prior to the
expiration of his insured status). Therefore, David has abandoned his DIB claim.

the Appeals Council (Tr. 133).
On August 3, 2012, the Appeals Council remanded the case to the ALJ with instructions
to determine whether David had a “good reason” for failing to appear at his hearing. (Tr. 76-78.)
After finding that David’s incarceration constituted good cause for failure to appear, the ALJ
held a hearing on January 28, 2013, at which David, who was represented by counsel, and a
vocational expert testified. (Tr. 31-67.)
On February 7, 2013, the ALJ rendered an unfavorable decision to David, concluding
that he was not disabled because he could perform a significant number of light work jobs in the
economy. (Tr. 14-25.) After the Appeals Council denied David’s request for review, the ALJ’s
decision became the final decision of the Commissioner. (Tr. 8-12.)
David filed a complaint with this Court on May 21, 2014, seeking relief from the
Commissioner’s final decision. (Docket # 1.) In this appeal, David alleges that the ALJ: (1)
improperly discounted the credibility of his symptom testimony; and (2) failed to adequately
account for his vertigo when assessing his residual functional capacity (“RFC”). (Social Security
Opening Br. of Pl. 7-14.)
II. FACTUAL BACKGROUND3
A. Background
At the time of the ALJ’s decision, David was fifty years old and had obtained his GED, a
six-month technical certificate in custodial maintenance, and an associate’s degree in private
security. (Tr. 40, 42, 181, 223.) He had a limited work history with rather brief stints as a
factory laborer, construction worker, and restaurant cook (Tr. 230); and a history of multiple
3

In the interest of brevity, this Opinion recounts only the portions of the 509-page administrative record
necessary to the decision.

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incarcerations (Tr. 194).
B. David’s Testimony at the Hearing
At the hearing, David, who was five feet ten inches tall and weighed 185 pounds,
testified that he lives with his wife. (Tr. 41.) In a typical day, he experiences fatigue, and thus,
often naps for an hour or two in the afternoon; he attributes this to his blood pressure medication.
(Tr. 54, 56-57.) About eight days a month, he feels so fatigued that he “can’t get up” or “stay
awake.” (Tr. 56-57.)
David testified that he suffers from constant knee pain. (Tr. 45, 47.) He estimated that he
could stand for ten to fifteen minutes before needing to sit; walk for 100 feet before resting; and
sit for fifteen minutes before needing to change positions. (Tr. 45-47.) He stated that he has
some difficulty maintaining his balance due to his knee problems, and his knee pain wakes him
several times a night. (Tr. 47-48, 52.) He rated his knee pain as a “six” on ten-point scale,
stating that it reduces to a “four” or “five” with medication. (Tr. 48-49.) David takes antiinflammatories for his pain, but no narcotics; he complained of medication side effects of upset
stomach, constipation, and diarrhea. (Tr. 49.) He wears an over-the-counter knee brace when he
has an abnormal amount of pain. (Tr. 53.)
David, who is left-handed, further testified that in November 2011 he underwent a fusion
of his left wrist and hand, together with a carpal tunnel release. (Tr. 49, 51.) As a result, his left
wrist is “kind of locked into one position.” (Tr. 50.) He claimed can grip a screwdriver, but not
tight enough to turn it; can print at a slow pace, but cannot type or write in cursive; has difficulty
turning a steering wheel when driving; and cannot turn a doorknob or lift a gallon of milk with
his left hand. (Tr. 50-51, 57.) He also experiences some carpal tunnel symptoms in his right

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wrist, but is trying to “avoid doing anything” because of his left wrist limitations. (Tr. 55, 58.)
In addition, David complained of feeling dizzy and seeing “white floating lights in [his]
eyes” when he stands up after sitting for a long while; these symptoms typically last from five to
ten minutes. (Tr. 52.) To cope, when rising from sit to stand he “stand[s] still, hold[s] onto
something[,] and wait[s] for [his] vision to come back.” (Tr. 52-53.) He takes Antivert for these
symptoms, which helps “for the most part.” (Tr. 21.) He added that before Antivert, he “would
black out and fall” if he tried to stand too quickly. (Tr. 53.) His reported that his wife showers
with him to make sure that he does not fall. (Tr. 53.)
C. Summary of the Relevant Medical Evidence
In 1994, David injured his left knee in a fall, and he underwent surgery in 1995 to repair
a torn anterior cruciate ligament and medial meniscus. (Tr. 290-92, 296-98.)
On February 5, 2009, David complained of dizziness and nausea; he was treated with
Phenergan, after which his symptoms improved. (Tr. 334-36.) One week later, David saw Dr.
Mark Charpentier for similar complaints. (Tr. 332-33.) He diagnosed David with vertigo (poor
control) and prescribed Meclizine (a generic drug for Antivert). (Tr. 332-33.) In October 2009,
David again complained of dizziness to Dr. Charpentier, who noted that David had benign
positional vertigo. (Tr. 319-20.) David had a normal exam, including normal neurological
findings, and was prescribed Dramamine. (Tr. 320.)
In January 2010, David complained of experiencing daily episodes of vertigo lasting
from one to four minutes. (Tr. 312-13.) He had a normal examination, and his medications,
including Antivert and Naproxen, were continued. (Tr. 312-13.) In April 2010, David
complained to Dr. Charpentier of knee pain, yet stated that he had no difficulty with exercise.

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(Tr. 305.) Dr. Charpentier observed that David had minimal pain and normal range of motion;
he continued David’s medications. (Tr. 305-06.) He further noted that David’s benign positional
vertigo was controlled with medication. (Tr. 305-06.)
In September 2010, David complained that his vertigo had returned with ringing in his
ears; he admitted that he had stopped taking his Antivert in August. (Tr. 358.) In October, David
reported increased joint pain, mostly in his wrists, after he ran out of Naproxen. (Tr. 357.) In
November, David stated that he was “doing well” and that the Antivert “help[ed] to keep the
edge off.” (Tr. 356.) He did, however, have some pain in his left hand. (Tr. 356.)
In March 2011, David underwent a surgical repair of an umbilical hernia. (Tr. 370-74,
504.) His recovery was uneventful. (Tr. 482.)
On March 23, 2011, Dr. H.M. Bacchus, a state agency physician, examined David for
purposes of his disability application. (Tr. 375-78.) He had an antalgic gait, favoring his left
knee; difficulty with heel, toe, and tandem walk due to complaints of pain and dizziness; and was
somewhat unsteady with ambulatory and range of motion maneuvers. (Tr. 376.) He was unable
to left hop, but could squat one-third way down with support; he was slow to rise. (Tr. 376.) He
had pain with palpation and range of motion of his left knee; his gait was slower in nature, but
sustainability appeared fair on even ground. (Tr. 376.) Muscle strength and tone in his
extremities and grip strength were 4/5 on the left and 5/5 on the right; his fine and gross dexterity
were slower in nature, but appeared preserved. (Tr. 376.) Dr. Bacchus concluded that David was
limited in repetitive squatting, climbing, and walking on uneven ground; had difficulty with any
kneeling or crawling; and should avoid working in unprotected heights or climbing ladders due
to his balance issues. (Tr. 377.)

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On March 29, 2011, Dr. Jonathon Sands, a state agency physician, reviewed David’s
record and concluded that he could lift twenty pounds occasionally and ten pounds frequently;
stand or walk about six hours in an eight-hour workday; sit about six hours in an eight-hour
workday; occasionally climb ramps and stairs, but never ladders, ropes, or scaffolds;
occasionally balance, stoop, kneel, crouch, and crawl; and avoid unprotected heights and
hazardous machinery. (Tr. 384-391.) He noted that David’s benign positional vertigo was
treated with Antivert and was controlled. (Tr. 385.) Dr. Sands’s opinion was later affirmed by a
second state agency physician, Dr. B. Whitley. (Tr. 406.)
In July 2011, David saw Dr. Jerry Mackel of Fort Wayne Orthopaedics for complaints of
pain, numbness, and weakness in his left hand and wrist; and pain, weakness, and a “giving way
sensation” in his left knee. (Tr. 410.) As to his wrist, x-rays showed significant, but not severe,
degenerative arthritis. (Tr. 410.) Dr. Mackel opined that David’s complaint of left wrist
weakness was “a combination of arthritis of the wrist of mild-to-moderate severity and early
intermittent carpal tunnel symptoms.” (Tr. 410.) He prescribed night splinting and an injection
to the carpal tunnel. (Tr. 410.) X-rays of David’s knee appeared normal with good joint space
and no lytic or blastic changes. (Tr. 411.) Dr. Mackel suspected that Dave had some early
arthritic changes, so he injected his knee and recommended use of a knee brace. (Tr. 411.)
In November 2011, Dr. Niles Schwartz performed a full arthrodesis of David’s left wrist
and a carpal tunnel release. (Tr. 375.) By March 2012, David told Dr. Schwartz that all his pain
was gone, he had no complaints, and that he had been doing his activities without an issues. (Tr.
455.) Dr. Schwartz noted that David had good grip strength, but some decreased sensation in his
fourth and fifth fingers. (Tr. 455.) He instructed David to continue his activities as tolerable. (Tr.

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455.)
David saw Dr. Hanna in April and May 2012, complaining of significant burning pain in
his left knee. (Tr. 456-58.) David rated his pain a “six” on a ten-point scale. (Tr. 456.) Dr.
Hanna observed that David had near full range of motion with mild pain in flexion, mild medial
and lateral joint line tenderness, and moderate patellofemoral crepitus with moderate pain on
patellofemoral grind. (Tr. 456.) The knee was grossly stable. (Tr. 456.) An MRI showed mild
tricompartmental osteoarthritis and mild effusion, but was otherwise normal. (Tr. 426.)
In July 2012, David underwent a left knee arthroscopy with chondroplasty. (Tr. 485-87.)
After participating in six weeks of physical therapy , Dr. Hanna wrote that he was “doing well”;
had occasional knee pain, rating it a “one” on a ten-point scale; and was occasionally taking
Tylenol. (Tr. 447.) Dr. Hanna noted that David had good motion and strength and no instability.
(Tr. 447.) He stated that David could be released to activities as tolerated, using pain as his
guide. (Tr. 447.) More specifically Dr. Hanna completed a restriction worksheet, stating that
David was to return to work “full duty, but limit deep squatting and bending.” (Tr. 447.)
In December 2012, David returned to Dr. Schwartz with complaints of increased pain in
his left wrist. (Tr. 445.) He reported that he had a new job in which he rolled and delivered
newspapers, driving eighty miles each day. (Tr. 445.) Upon examination, he had mild tenderness
over a portion of his wrist tendons; otherwise, his exam was normal. (Tr. 445.) Dr. Schwartz
recommended that David use his right hand to deliver newspapers and reduce activity with his
left hand, and to use anti-inflammatories and ice as needed. (Tr. 445-46.) An x-ray showed
intact hardware and mild to moderate osteoarthritic changes. (Tr. 423, 428.)

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III. STANDARD OF REVIEW
Section 405(g) of the Act grants this Court “the power to enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42
U.S.C. § 405(g); see 42 U.S.C. § 1383(c)(3). The Court’s task is limited to determining whether
the ALJ’s factual findings are supported by substantial evidence, which means “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Schmidt v.
Barnhart, 395 F.3d 737, 744 (7th Cir. 2005) (citation omitted). The decision will be reversed
only if it is not supported by substantial evidence or if the ALJ applied an erroneous legal
standard. Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000).
To determine if substantial evidence exists, the Court reviews the entire administrative
record but does not re-weigh the evidence, resolve conflicts, decide questions of credibility, or
substitute its judgment for the Commissioner’s. Id. Rather, if the findings of the Commissioner
are supported by substantial evidence, they are conclusive. Id. Nonetheless, “substantial
evidence” review should not be a simple rubber-stamp of the Commissioner’s decision. Id.
IV. ANALYSIS
A. The Law
Under the Act, a plaintiff is entitled to SSI if he “is unable to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which . .
. has lasted or can be expected to last for a continuous period of not less than twelve months.” 42
U.S.C. § 1382c(a)(3)(A). A physical or mental impairment is “an impairment that results from
anatomical, physiological, or psychological abnormalities which are demonstrable by medically

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acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 1382c(a)(3)(D).
In determining whether David is disabled as defined by the Act, the ALJ conducted the
familiar five-step analytical process, which required him to consider the following issues in
sequence: (1) whether the claimant is currently unemployed; (2) whether the claimant has a
severe impairment; (3) whether the claimant’s impairment meets or equals one of the
impairments listed by the Commissioner, see 20 C.F.R. § 404, Subpt. P, App. 1; (4) whether the
claimant is unable to perform his past work; and (5) whether the claimant is incapable of
performing work in the national economy.4 See Dixon v. Massanari, 270 F.3d 1171, 1176 (7th
Cir. 2001); 20 C.F.R. § 416.920. 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 is not disabled. Id. The burden of proof lies with the claimant at
every step except the fifth, where it shifts to the Commissioner. Id. at 885-86.
B. The ALJ’s Decision
On February 7, 2013, the ALJ issued the decision that ultimately became the
Commissioner’s final decision. (Tr. 17-25.) He found at step one of the five-step analysis that
David had not engaged in substantial gainful activity after his application date. (Tr. 19.) At step
two, he determined that David had the following severe impairments: status post left knee
surgery, status post left carpal tunnel surgery, status post hernia, and hypertension. (Tr. 19.) At
step three, the ALJ determined that David’s impairment or combination of impairments were not
4

Before performing steps four and five, the ALJ must determine the claimant’s RFC or what tasks the
claimant can do despite his limitations. 20 C.F.R §§ 416.920(e), 416.945. The RFC is then used during steps four
and five to help determine what, if any, employment the claimant is capable of. 20 C.F.R. §§ 416.920(e),
416.945(a)(5).

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severe enough to meet a listing. (Tr. 20-21.)
Before proceeding to step four, the ALJ determined that David’s symptom testimony was
not credible to the extent it portrayed limitations in excess of the following RFC:
[T]he claimant has the residual functional capacity to perform light work as
defined in 20 CFR 416.967(b) except no climbing on ladders, ropes and scaffolds;
occasional climbing of ramps and stairs, balancing, stooping, kneeling, crouching
and crawling; and only occasional walking on non-level ground. The claimant is
limited to occasional gross handling, fine finger manipulation and feeling
sensation, and handwriting or keyboard work. The claimant is to avoid all
exposure to unprotected heights or being around dangerous equipment or
products.
(Tr. 21.)
David had no relevant past work to consider at step four. (Tr. 23.) Based on the assigned
RFC and the vocational expert’s testimony, the ALJ concluded at step five that he could perform
a significant number of unskilled, light work jobs in the economy, including counter clerk
(17,500 jobs nationally and 525 regionally) and ticket takers/usher (21,000 jobs nationally and
230 regionally). (Tr. 24.) Accordingly, David’s claim for SSI was denied. (Tr. 24.)
C. The ALJ’s Credibility Determination Will Not Be Disturbed
In challenging the Commissioner’s denial of benefits, David first argues that the ALJ was
“patently wrong” in finding that his symptom testimony was “not entirely credible.” (Tr. 22.)
For the following reasons, the ALJ’s credibility assessment will not be disturbed.
An ALJ’s credibility determination is entitled to special deference because the ALJ is in
the best position to evaluate the credibility of a witness. Powers v. Apfel, 207 F.3d 431, 435 (7th
Cir. 2000). If an ALJ’s determination is grounded in the record and he articulates his analysis of
the evidence “at least at a minimum level,” Ray v. Bowen, 843 F.2d 998, 1002 (7th Cir. 1988);
see Ottman v. Barnhart, 306 F. Supp. 2d 829, 838 (N.D. Ind. 2004), creating “an accurate and
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logical bridge between the evidence and the result,” Ribaudo v. Barnhart, 458 F.3d 580, 584 (7th
Cir. 2006), his determination will be upheld unless it is “patently wrong,” Powers, 207 F.3d at
435; see also Carradine v. Barnhart, 360 F.3d 751, 754 (7th Cir. 2004) (remanding an ALJ’s
credibility determination because the ALJ’s decision was based on “serious errors in reasoning
rather than merely the demeanor of the witness”).
1. Objective Medical Evidence
The ALJ considered several factors when assessing David’s credibility, beginning with
the objective medical evidence. The ALJ observed that an MRI of David’s left knee in April
2012 showed mild tricompartmental osteoarthritis; that he had a left knee arthroscopy with
chondroplasty in July 2012; and that by September 2012, he was discharged from physical
therapy after meeting his goals. (Tr. 22.) The ALJ further recited that David had a left carpal
tunnel release and plate with a fusion of carpals in November 2011, and that at a recent medical
appointment David complained of some left wrist pain after rolling newspapers and delivering
them in his car. (Tr. 22.) David’s examination, however, was normal, except for some mild
tenderness over the extensor tendons, and the physician recommended he reduce his activity with
left hand. (Tr. 22.)
David challenges the ALJ’s consideration of this medical evidence, asserting that the
ALJ failed to adequately explain how it undercuts the credibility of his symptom testimony. But
the ALJ needs only to minimally articulate his analysis of the evidence to allow this Court to
trace the path of his reasoning. Zurawski, 245 F.3d at 888. Here, the ALJ satisfied this standard.
The ALJ observed that in September 2012, six weeks after knee surgery, David was
discharged from physical therapy, having met his goals. The therapy discharge summary reflects

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normal knee strength, good balance, 125 degrees of active knee flexion, and no mention of pain.
(Tr. 495.) This documentation contrasts with David’s hearing testimony just four months later of
disabling knee pain. “[A]lthough an ALJ may not ignore a claimant’s subjective reports of pain
simply because they are not fully supported by objective medical evidence, discrepancies
between objective evidence and self-reports may suggest symptom exaggeration.” Getch v.
Astrue, 539 F.3d 473, (7th Cir. 2008).
David also argues that the ALJ selectively cited the physical therapy discharge summary,
emphasizing that the ALJ ignored a September 2012 note from Dr. Hanna that “restricted him to
‘limited activity’ and recommended that [he] ‘use pain as his guide.’” (Opening Br. 11 (citing Tr.
447)); see generally Denton v. Astrue, 596 F.3d 419, 435 (7th Cir. 2010) (“[A]n ALJ has the
obligation to consider all relevant medical evidence and cannot simply cherry-pick facts that
support a finding of non-disability while ignoring evidence that points to a disability finding.”).
But in making this argument, David has curbed Dr. Hanna’s note; in actuality, Dr. Hanna
stated:
[David] is doing well. He notes pain is occasionally 1/10 in the knee. He is
occasionally taking Extra Strength Tylenol, but overall doing well. No problems
with the incision. Good range of motion and strength. He has basically
completed physical therapy. No instability. No other complaints.
....
He is doing very well. I think he can be released to activities as tolerated with
pain as his guide. We did g[i]ve him [a] work restriction sheet that he can be full
duties, but he should limit the amount of deep squatting and kneeling due to his
patellofemoral compartment issues. However, some of this limited activity
should be fine for him and he should use pain as his guide.
(Tr. 447.) Dr. Hanna then completed a Restriction Worksheet, confirming that David “[m]ay
work full duty, but limit deep squatting and bending.” (Tr. 448.) Therefore, David’s argument
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that the ALJ selectively cited the medical evidence concerning his knee is unsupported. “[A]n
ALJ need not mention every piece of evidence, so long [as] he builds a logical bridge from the
evidence to his conclusion,” Denton, 596 F.3d at 425; here, the ALJ has adequately done so.
The Court is also able to trace the ALJ’s reasoning about the objective medical evidence
pertaining to David’s left hand and wrist. The ALJ cited a December 2012 note from Dr.
Schwartz reflecting that David complained of some left wrist pain in his job rolling and
delivering newspapers, which involved driving eighty miles a day; an examination, however,
was normal, other than some mild tenderness over his extensor tendons. (Tr. 22 (citing Tr. 445).)
Dr. Schwartz then instructed David to decrease his left hand activity and take antiinflammatories. (Tr. 445.) The ALJ reasoned from this evidence that although David indeed had
some left hand limitations, they did not rise to the level of a disabling condition as David
portrayed; the ALJ then reasonably limited David to only “occasional gross handling, fine finger
manipulation and feeling sensation, and handwriting or keyboard work.” (Tr. 21-22.)
Therefore, the Court is able to trace the ALJ’s reasoning with respect to the objective
medical evidence. Denton, 596 F.3d at 425.
2. Work History
Furthermore, the ALJ did not discount David’s credibility on the objective medical
evidence alone. See Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009); 20 C.F.R.
§416.929(c)(2); SSR 96-7p, 1996 WL 374186, at *6. Rather, the ALJ also cited David’s limited
work history when determining that his symptom testimony was less than fully credible. (Tr. 22;
see Tr. 38-39, 43-45, 201-02.)
David argues that before drawing a negative inference from his minimal work history, the

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ALJ should have examined why his work history was limited. More specifically, David asserts
that the ALJ failed to consider that he was unable to work from 2000 to 2002, November 2005 to
November 2006, and 2008 through September 2010 for the reason that he was incarcerated.
(Opening Br. 10 (citing Tr. 191, 194).)
But the ALJ did consider that David served “several jail terms.” (Tr. 22.) Accordingly, it
is reasonable to infer that the ALJ contemplated how David’s multiple incarcerations affected his
earnings for the past fifteen years. See Stephens v. Heckler, 766 F.2d 284, 287 (7th Cir.1985) (“If
a sketchy opinion assures us that the ALJ considered the important evidence, and the opinion
enables us to trace the path of the ALJ's reasoning, the ALJ has done enough.”).
Moreover, David makes no attempt to explain in his opening brief why his earnings were
weak for the ten years of the relevant period that he was not incarcerated. In his reply brief,
David asserts that after 2010 he could not “pass the physical” because of his physical limitations,
but that still leaves no explanation for all the years of weak earnings prior to 2010 that David
was not incarcerated. (See Tr. 201-02.)
Based on this record, the ALJ was not “patently wrong” in considering David’s limited
work history as one factor in his credibility determination. See McCurrie v. Astrue, 401 F. App’x
145, 149-50 (7th Cir. 2010) (unpublished) (discounting a claimant’s complaints where his work
history prior to his alleged onset date was sporadic); McDowell v. Astrue, No. 1:12-cv-3519,
2013 WL 3337795, at *11 (N.D. Ill. July 2, 2013) (“We would have liked to see the ALJ give
further explanation for how [the claimant’s] work history played in to the overall credibility
determination, but the ALJ’s choice not to do so does not constitute legal error.”); Fahnel v.
Barnhart, No. 04-C-606C, 2005 WL 331742, at *11-12 (W.D. Wis. Feb. 7, 2005) (finding that

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the ALJ could reasonably rely on plaintiff’s poor work record as a basis to discount his claimed
disability).
3. Criminal History
The ALJ also considered as a factor in his credibility assessment that David had served
“several jail terms.” (Tr. 22.) Although David acknowledges that a claimant’s criminal history is
an appropriate factor to consider when assessing credibility, he contends that an ALJ “must
consider the nature of the criminal history and the claimant’s transparency regarding it” and
“must explain why a claimant’s criminal history makes the claimant less credible in each case.”
(Opening Br. 7-8 (emphasis in original).)
David’s argument overreaches. Although a claimant’s criminal record alone is not an
adequate basis on which to find him incredible, it is not improper for an ALJ to consider criminal
convictions “as part of the totality of circumstances when determining credibility.” Vreeland v.
Astrue, No. 06-C-466-C, 2007 WL 5414923, at *13 (W.D. Wis. Mar. 27, 2007); see also Butera
v. Apfel, 173 F.3d 1049, 1055 (7th Cir. 1999); Large ex rel., S.L. v. Colvin, No. 12 C 50101,
2013 WL 2458348, at *7 (N.D. Ill. June 6, 2013); Mitchell v. Astrue, No. 1:11-cv-161, 2012 WL
1100251, at *9 (S.D. Ind. Mar. 30, 2012); Cirelli v. Astrue, 751 F. Supp. 2d 991, 1008 (N.D. Ill.
2010). And contrary to David’s assertion, the case law does not reveal that an ALJ is required to
expressly discuss the nature of the conviction or the claimant’s truthfulness in revealing it.5 See
Butera, 173 F.3d at 1055; Large ex rel., S.L. v. Colvin, No. 12 C 50101, 2013 WL 2458348, at
*7 (N.D. Ill. June 6, 2013); Mitchell, 2012 WL 1100251, at *9; Cirelli, 751 F. Supp. 2d at 1008;
5

The Commissioner also argues that a felony criminal conviction is admissible under Federal Rule of
Evidence 609(a)(1) regardless of the nature of the crime. (Def.’s Mem. in Supp. of Commissioner’s Decision 13.)
But the Federal Rules of Evidence do not apply to the admission of evidence in Social Security administrative
proceedings. See Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (collecting cases).

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Vreeland, 2007 WL 5414923, at *13.
Indeed, this is not a case in which the claimant purports his criminal history stems from
his alleged disabling conditions, and as such, could arguably be viewed as a factor supporting his
claim of disability. See, e.g., Troop v. Astrue, No. 09-cv-803, 2010 WL3808916, at *6 (E.D. Wis.
Sept. 24, 2010) (arguing, unsuccessfully, that the claimant’s drug-related convictions should be
viewed as a symptom of her mental illness, and thus, should not cut against her credibility). Nor
is it a circumstance where the claimant’s criminal convictions are long past; rather, David’s most
recent jail term was 2008 through September 2010. Cf. Davidson v. Colvin, No. 2:12-cv-293,
2014 WL 1047917, at *14 (N.D. Ind. Mar. 17, 2014) (finding error where the ALJ discredited
the claimant for twenty-year-old drug convictions and the claimant went on to build a long work
history after release from prison).
Because the ALJ considered David’s criminal convictions as just one factor in his
credibility determination, there is no reversible error. See Berger v. Astrue, 516 F.3d 539, 545-46
(7th Cir. 2008) (affirming the ALJ’s credibility determination because it was not “patently
wrong” or “divorced from the facts contained in the record”).
4. Treatment History
The ALJ also considered as part of his credibility analysis the treatment that David had
undergone for his various medical conditions. Specifically, the ALJ reviewed David’s surgeries
and, as discussed above, his course of physical therapy, which appeared successful. (Tr. 22-23.)
He noted David’s testimony that he takes Antivert for vertigo, which was controlled, and Tylenol
and Naproxen for his pain; but found his testimony “vague” concerning his need to nap as a side
effect of his blood pressure medication. (Tr. 22-23, 54.) The ALJ further observed that although

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David complained of some right wrist and hand symptoms, he had not participated in any
treatment for his right wrist or hand. (Tr. 22.)
David does not contend with any particularity that the ALJ mishandled his treatment
history. And the Social Security “regulations expressly permit the ALJ to consider a claimant’s
treatment history” when assessing the credibility of his symptom testimony. Simila v. Astrue,
573 F.3d 503, 519 (7th Cir. 2009) (discounting the severity of claimant’s complaints where his
treatment was “relatively conservative” and “inconsistent with [his] complaints”); Ellis v. Astrue,
No. 2:09-cv-145, 2010 WL 3782265, at *20 (N.D. Ind. Sept. 30, 2010) (affirming the ALJ’s
discounting of claimant’s complaints given the discrepancies between her self-reported
symptoms and the lack of treatment for the purported condition); 20 C.F.R. § 416. 929(c)(3);
SSR 96-7p, 1996 WL 374186, at *7-8. Accordingly, the Court finds no error with the ALJ’s
consideration of David’s treatment as a factor in his credibility determination.6
In the end, “an ALJ’s credibility assessment will stand as long as there is some support in
the record.” Berger, 516 F.3d at 546 (citation and internal quotation marks omitted). Here, the
ALJ sufficiently supported his assessment of David’s credibility through several factors, all
which withstand scrutiny. Therefore, the ALJ’s credibility determination will not be disturbed.
D. The RFC Assigned by the ALJ Is Supported by Substantial Evidence
Next, David argues that the RFC assigned by the ALJ is not supported by substantial
evidence. Ultimately, David’s second argument fares no better than his first.

6

The ALJ also reviewed David’s activities of daily living earlier in his decision, finding no significant
limitations. (Tr. 20); 20 C.F.R. § 416.929(c)(3)(i) (stating that an ALJ is entitled to consider a claimant’s daily living
activities as a factor in his credibility analysis). And the ALJ considered the medical opinion evidence, which will
be discussed in more detail infra, ultimately crediting the opinion of the state agency physicians over David’s
unsupported symptom testimony. See generally Buckhanon ex rel. J.H. v. Astrue, 368 F. App’x 674, 678-79 (7th Cir.
2010) (unpublished) (“[W]e read the ALJ’s decision as a whole and with common sense.” (citations omitted)).

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As stated earlier, the RFC is a determination of the tasks a claimant can do despite his
limitations. 20 C.F.R. § 416.945(a)(1). The RFC assessment “is based upon consideration of all
relevant evidence in the case record, including medical evidence and relevant nonmedical
evidence, such as observations of lay witnesses of an individual’s apparent symptomology, an
individual’s own statement of what he or she is able or unable to do, and many other factors that
could help the adjudicator determine the most reasonable findings in light of all the evidence.”
SSR 96-5p, 1996 WL 374183, at *5; see 20 C.F.R. § 416.945.
To review, the ALJ assigned David an RFC for a limited range of light work, which
involves lifting no more than twenty pounds at a time with frequent lifting or carrying of items
weighing up to ten pounds. 20 C.F.R. § 416.967(b). A job is considered light work when it
requires a good deal of walking or standing, or when it involves sitting most of the time with
some pushing and pulling of arm and leg controls. 20 C.F.R. § 416.967(b). The ALJ reduced
this category further by assigning David additional limitations: no climbing on ladders, ropes, or
scaffolds; occasional climbing of ramps and stairs, balancing, stooping, kneeling crouching,
crawling, and walking on non-level ground; occasional gross handling, fine finger manipulation
and feeling sensation, and handwriting or keyboard work; and no exposure to unprotected
heights or dangerous equipment or products. (Tr. 21.)
David argues, however, that “[h]ad the ALJ properly assessed [his] credibility and RFC,
[the ALJ] would have found him limited to a sedentary RFC with extremely limited use of his
dominant hand.” (Reply Br. of Pl. 5.) In doing so, David asserts in his opening brief that the
ALJ “neither acknowledged nor accounted for David’s vertigo, and he provided no reason for
this omission.” (Opening Br. 13.)

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But as the Commissioner points out, the ALJ did indeed consider David’s vertigo.
Specifically, the ALJ considered David’s testimony that he takes Antivert for dizziness (Tr. 22),
Dr. Sands’s notation that David “has vertigo that is treated with Antivert” (Tr. 23 (citing Tr.
385)), and an examination at New Castle Correctional indicating that David has “[b]enign
positional vertigo that is controlled” (Tr. 23 (citing Tr. 385)). Moreover, the ALJ afforded
significant weight to the opinion of Dr. Sands, who after considering David’s vertigo, assigned
him limitations indicative of a reduced range of light work and an instruction to avoid all
exposure to unprotected heights and dangerous equipment or products. (Tr. 23 (citing Tr. 38491).)
In the face of this evidence, David backtracks in his reply brief. He states that his initial
argument was based on a misreading of the record, conceding that the ALJ “arguably accounted
for David’s vertigo in his RFC assessment.” (Reply Br. 5 n.2.) Hoping to rehabilitate his
argument, David argues in his reply brief that if the ALJ had “properly accounted for” his
vertigo, the ALJ would have restricted him to sedentary work. (Reply Br. 5 (emphasis added).)
Of course, restrictions concerning a claimant’s impairments need only be incorporated
“to the extent that the impairment is supported by the medical evidence.” Jens v. Barnhart, 347
F.3d 209, 213 (7th Cir. 2003) (concluding that claimant’s claim of continuing absenteeism was
not an impairment supported by the medical evidence); see also Martinez v. Astrue, No. 11 C
8687, 2012 WL 5830613, at *11 (N.D. Ill. Nov. 16, 2012) (finding that in the absence of any
medical support for claimant’s stated need to elevate her legs, the ALJ reasonably declined to
accept this aspect of her testimony). Here, David fails to point to any medical evidence
indicating that his vertigo limits him to a sedentary activities.

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As the ALJ observed, the physicians of record who considered David’s vertigo–Drs.
Charpentier, Sands, Whitley, and Bacchus–all indicated that his vertigo was controlled with
medication. (Tr. 305-06, 377, 385.) As a result, David’s assertion that his vertigo limits him to
sedentary work amounts to no more than his own personal opinion, which is rebutted by the
medical opinions of record. See Knox v. Astrue, 327 F. App’x 652, 655 (7th Cir. 2009)
(unpublished) (“There is no presumption of truthfulness for a claimant’s subjective complaints;
rather, an ALJ should rely on medical opinions based on objective observations and not solely on
a claimant’s subjective assertions.”); Jones v. Colvin, No. 09 C 7645, 2013 WL 1407779, at *11
(N.D. Ill. Apr. 8, 2013) (finding that the ALJ reasonably accepted the opinions of the state
agency physicians as to claimant’s physical limitations where the ALJ considered claimant’s
symptom testimony but no contrary medical opinions were offered by the claimant).
Perhaps realizing the weakness of his vertigo argument, David changes course in his
reply brief, asserting that his “primary argument [for a sedentary RFC] rests on his knee and
hand impairments.” (Reply Br. 5.) But again David fails to point to any persuasive medical
evidence indicating that his knee condition limits him to sedentary activities. He attempts to
characterize Dr. Hanna’s September 10, 2012, progress note as doing so (Opening Br. 11), but
that argument overreaches; Dr. Hanna’s work restriction states: “May work full duty, but limit
deep squatting and bending.” (Tr. 448 (emphasis added).) So again David relies merely upon his
own personal opinion, rather than medical evidence or opinion, when asserting that his knee
condition limits him to sedentary work. See Knox, 327 F. App’x at 655 Jones, 2013 WL
1407779, at *11.
“The regulations, and this Circuit, clearly recognize that reviewing physicians . . . are

20

experts in their field, and the ALJ is entitled to rely on their expertise.” Ottman, 306 F. Supp. 2d
at 839 (citing 20 C.F.R. § 404.1527(f)(2)(i)). Accordingly, the ALJ was entitled to afford
significant weight to the opinion of the state agency physicians, Drs. Sands and Whitley, when
assigning David an RFC for a reduced range of light work. (See Tr. 22-23.)
To reiterate, “the claimant bears the burden of supplying adequate records and evidence
to prove [his] claim of disability.” Scheck v. Barnhart, 357 F.3d 697, 702 (7th Cir. 2004)
(emphasis added). David’s assertion that he is limited to sedentary activity is not supported by
any medical opinions;7 thus, the Court is able to easily track the ALJ’s reasoning concerning his
assignment of David’s RFC. See Rice v. Barnhart, 384 F.3d 363, 371 (7th Cir. 2004) (finding
that the ALJ satisfied his “minimal duty to articulate his reasons and make a bridge between the
evidence and the outcome as to his step five determination”). Consequently, David’s challenge
to the RFC does not warrant a remand of the Commissioner’s final decision.8
V. CONCLUSION
For the reasons articulated herein, the decision of the Commissioner is AFFIRMED. The

7

David asserts that the ALJ should have discounted the opinion of the state agency physicians because the
opinions “were proffered more than a year prior to [his] 2012 knee surgery.” (Reply Br. 4 n.1.) But in September
2012 Dr. Hanna released David to return to “full duty” work with limited deep squatting and bending. (Tr. 448.)
Thus, the opinion of the state agency physicians in March and April 2011 is not inconsistent with Dr. Hanna’s
limitations more than a year later, leaving David’s claim of disabling limitations resting solely on his symptom
testimony.
8

David also argues that the ALJ erred at step five by failing to ask the vocational expert whether his
testimony conflicts with the Dictionary of Occupational Titles, and then elicit a reasonable explanation for any such
discrepancy. See Overman v. Astrue, 546 F.3d 456, 463 (7th Cir. 2008); Prochaska v. Barnhart, 454 F.3d 731, 735
(7th Cir. 2006). Although the ALJ did fail to make the requisite inquiry (see Tr. 27-35), Social Security Ruling 0004p “requires only that the ALJ investigate and resolve apparent conflicts between the [vocational expert’s]
evidence and the DOT.” Overman, 546 F.3d at 463 (emphasis in original). Here, the only argument David makes
with respect to an apparent conflict involves a hypothetical limiting the individual to sedentary work. (Opening Br.
13-14 (citing Tr. 66).) Because the Court finds that substantial evidence supports the assigned RFC for a reduced
range of light work, David’s step-five argument premised on a sedentary RFC is moot.

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Clerk is directed to enter a judgment in favor of the Commissioner and against David.
SO ORDERED.
Enter for this 1st day of April 2015.
S/Susan Collins
Susan Collins
United States Magistrate Judge

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