Laggner v. Commissioner of Social Security

Filing 23

OPINION AND ORDER: The decision of the Commissioner is AFFIRMED. JUDGMENT is entered on behalf of defendant, Commissioner of Social Security and against plaintiff Alena L. Laggner. Signed by Magistrate Judge Susan L Collins on 3/30/2016. (rmn)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
ALENA L. LAGGNER,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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CAUSE NO. 1:14-cv-00272-SLC

OPINION AND ORDER
Plaintiff Alena L. Laggner appeals to the district court from a final decision of the
Commissioner of Social Security (“Commissioner”) denying her application under the Social
Security Act (the “Act”) for Supplemental Security Income (“SSI”).1 (DE 1). For the following
reasons, the Commissioner’s decision will be AFFIRMED.
I. PROCEDURAL HISTORY
Laggner applied for SSI on December 12, 2011, alleging disability as of December 31,
2007, which she later amended to October 26, 2009.2 (DE 11 Administrative Record (“AR”) 11,
38, 191-96). The Commissioner denied Laggner’s application initially and upon reconsideration.
(AR 88-89). After a timely request, a hearing was held on February 7, 2013, before
Administrative Law Judge Melinda W. Kirkpatrick (“the ALJ”), at which Laggner, who was
represented by counsel, and a vocational expert, Tim Shaner (the “VE”), testified. (AR 34-79).

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2

All parties have consented to the Magistrate Judge. (DE 14); see 28 U.S.C. § 636(c).

Laggner had previously filed applications for both SSI and Disability Insurance Benefits (“DIB”) in July
2009 and February 2011, which were denied initially and upon reconsideration. (AR 37-38, 80, 84, 172-90). The
ALJ did not find a basis to reopen these prior applications. (AR 11). Laggner’s date last insured for DIB purposes
was September 30, 2010. (AR 37, 86).

On May 14, 2013, the ALJ rendered an unfavorable decision to Laggner, concluding that
she was not disabled because despite the limitations caused by her impairments, she could
perform a significant number of light work jobs in the economy. (AR 11-24). The Appeals
Council denied Laggner’s request for review (DE 1-6), at which point the ALJ’s decision
became the final decision of the Commissioner. See 20 C.F.R. § 416.1481.
Laggner filed a complaint with this Court on September 5, 2014, seeking relief from the
Commissioner’s final decision. (DE 1). Laggner argues that the ALJ: (1) improperly discounted
the credibility of her symptom testimony; (2) failed to adequately account for her mental
limitations in the residual functional capacity (“RFC”) and hypotheticals posed to the VE; and
(3) constructively reopened her February 2011 disability application. (DE 15 at 13-24).
II. FACTUAL BACKGROUND3
At the time of the ALJ’s decision, Laggner was 43 years old (AR 24, 80); she had
dropped out of school in the 11th grade, but later obtained her GED and completed a nine-month
course to be an emergency medical technician (AR 42, 291, 330). Laggner has past work
experience as a cashier, cook, caterer, waitress, and cleaning supervisor. (AR 330). In her
application, Laggner alleged disability due to back problems, depression, and panic attacks. (AR
329).
A. Laggner’s Testimony at the Hearing
At the hearing, Laggner, who was five feet, five inches tall and weighed 198 pounds at
the time, testified that she was single and had adult children; she described herself as
“homeless,” stating that she was currently staying with family and friends. (AR 40). She drives
3

In the interest of brevity, this Opinion recounts only the portions of the 820-page administrative record
necessary to the decision.

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short distances and performs her bathing and dressing independently 90 percent of the time. (AR
57). She performs light housework, but she usually has someone to help her with “major
cleaning” and to take her shopping. (AR 58). She had health insurance through mid-2011, but
was uninsured at the time of the hearing. (AR 43). Laggner asserted that on a good day, she can
dress herself and sit outside on a bench, but on a bad day, she does not leave her room except to
go to the bathroom. (AR 48). She typically naps two to four hours a day. (AR 65-66). She
reported that she currently was not receiving medical attention, and thus, she was having two to
three bad days a week; she did not have the funds to fill her prescriptions. (AR 48, 52).
When asked why she thought she could not work, Laggner cited her back pain, as well as
depression and panic attacks. (AR 46). She stated that she underwent a discectomy in both 2008
and 2009, as well as a surgery for another disc problem in her neck in 2011, which were all
helpful for only a few months. (AR 46-47, 49-50). Laggner testified that she has low back pain
“[u]sually every other day,” stating that “[s]ome days it’s just enough to where [she] can tolerate
it without doing anything, and then there’s days where [she] cannot even get out of bed.” (AR
48). On a scale of one to 10, Laggner rated her pain on a good day as a “three or a four” and on
a bad day as “blowing a ten off the scale.” (AR 48). Laggner asserted that when standing, her
back pain “starts to burn like it’s a fire” and “after about five minutes of that it affects [her]
breathing.” (AR 53-54, 67). Every few weeks her back pain travels down into her left leg,
causing numbness, tingling, and weakness. (AR 51).
Laggner estimated that she could stand for five minutes at a time and sit for five to 10
minutes at a time; she prefers to lie on her side and spends 90 percent of an eight-hour period
lying down. (AR 53, 57). She claimed that she could walk about 50 feet before she has to sit or

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hold onto something. (AR 53). She also complained of a long history of left arm numbness two
or three times a week, causing her problems with grasping and holding onto objects. (AR 6869). Additionally, she stated that several days before the hearing, she began experiencing severe
pain in her right arm, contending that she could not even raise it. (AR 69-70). She currently was
taking Ultram, which she obtained from a free clinic. (AR 55-56). She also complained of
having migraine headaches three to four times per month. (AR 63).
As to her mental health, Laggner stated that she feels stressed in large crowds, causing
panic attacks; she prefers to stay at home. (AR 59). She was currently having panic attacks on a
monthly basis, stating that they were more frequent when she was raising her children, taking
paramedic classes, and “the bills weren’t getting paid.” (AR 59-60). She was supposed to
participate in counseling at the Northeastern Center, but she did not have the funds to do so.
(AR 60).
B. Summary of the Relevant Medical Evidence
In October 2008, Laggner visited the emergency room due to low back pain, which was
radiating into her left lower leg; she also complained of numbness and weakness in her left leg.
(AR 382, 530-31, 527-28). An MRI showed multi-level degenerative bulging and left-sided disc
herniation at L3-L4, and a CT scan showed diffuse disc bulging, spinal stenosis, and moderate
neuroforaminal narrowing. (AR 383-84). She was prescribed Vicodin and given an injection of
Toradol. (AR 528). Later that same month, Dr. Loi Phuong, a neurosurgeon, performed a left
L3 partial hemilaminectomy and left L3-L4 discectomy and foraminotomy on Laggner. (AR
580-81).
In April 2009, Laggner visited the emergency room, complaining of nausea and chest

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pain, which she thought was induced by stress. (AR 389-93). She had no pain or tenderness in
her back and demonstrated normal range of motion and strength of her extremities. (AR 392).
She was diagnosed with anxiety and depression and given Ativan. (AR 390).
In October 2009, Laggner returned to Dr. Phuong; she reported that she had “done well”
after her first surgery, but that in the last week she started to experience low back pain that
radiated into her left thigh with paresthesia. (AR 431-32). She had decreased light touch
sensation in her left thigh, and a straight-leg raise test was positive on the left. (AR 432). An
MRI showed a recurrent left L3-L4 paracentral disc protrusion. (AR 432). Dr. Phuong’s
treatment options included conservative treatment with physical therapy, injections, and pain
medication or a second discectomy. (AR 432). Laggner opted for surgery, and later that month
Dr. Phuong performed a second L3 partial hemilaminectomy and L3-L4 discectomy and
foraminotomy. (AR 400, 432).
Also in October 2009, Dr. Ben Williams performed a consultative examination at the
request of the state agency; Laggner was five days postoperative of her second discectomy at the
time. (AR 419-22). He observed that Laggner’s ambulation, stability, coordination, range of
motion, gait, strength, and fine motor skills were all normal; she was able to fully squat and walk
on her heels and toes. (AR 420-21). She had mild difficulty getting on and off the exam table,
but no difficulty with rising from a chair and dressing herself. (AR 420). A straight leg raise
test was positive bilaterally. (AR 421). Sensation was intact, except for decreased light touch on
the left lower leg. (AR 421). Dr. Williams found no objective functional limitations on
examination with respect to Laggner’s depression and anxiety, but noted her report of difficulty
going out in public. (AR 421).

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In November 2009, Laggner underwent a disability evaluation by Galen Yordy, Ph.D.;
she drove herself to the appointment. (AR 438-41). She reported symptoms consistent with
moderate depression in the past two weeks, as well as generalized anxiety and panic attacks in
noisy environments, crowded social situations, and unfamiliar circumstances. (AR 438). She
had recently discontinued counseling services due to financial reasons, but stated that the Celexa
prescribed by her primary physician was helpful. (AR 438). She stated that she takes no
medications for her physical problems. (AR 438). On mental status exam, Laggner appeared to
have average intelligence; at times she appeared rather tense, but she did not exhibit any
problems with hallucinations, delusions, or psychomotor agitation or retardation. (AR 439).
Overall, she demonstrated a full and appropriate range of affect, her manner of self-expression
was unremarkable, and she was pleasant and cooperative. (AR 439). Laggner denied any
problems with self care, household or shopping tasks, or financial management, but stated that
she must be “watchful of her back” when performing these activities. (AR 440-41). She spends
her time reading, watching television, playing computer games, and “rearrang[ing] her house.”
(AR 440). Dr. Yordy’s diagnostic impressions were panic disorder without agoraphobia;
generalized anxiety disorder; major depressive disorder, single episode, moderate, chronic, with
psychotic features; and rule out attention deficit hyperactivity disorder, predominantly
inattentive type. (AR 441). He assigned Laggner a Global Assessment of Functioning (“GAF”)
score of 60.4

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GAF scores reflect a clinician’s judgment about the individual’s overall level of functioning. Am.
Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders 32 (4th ed., Text Rev. 2000). A GAF score
of 41 to 50 reflects serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any
serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Id. A GAF
score of 51 to 60 reflects moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or
moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-

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In December 2009, Laggner complained to Dr. Phuong of radiating pain into her right
leg. (AR 501). She had normal strength in her lower extremities, and an MRI showed no disc
herniation or nerve root compression. (AR 501). Dr. Phuong recommended conservative
treatment and referred Laggner to a pain management specialist. (AR 501).
Also in December 2009, Laggner saw her primary care physician, Dr. Scott Armstrong.
(AR 496). She reported that Celexa was working well for her depression, but that she was still
having panic attacks, although less frequently. (AR 496). In January 2010, Laggner told Dr.
Armstrong that she was taking Ativan when she felt a panic attack coming on, which was about
every other day; overall, she reported that she was feeling better. (AR 494). Laggner returned to
Dr. Armstrong several weeks later, reporting paranoid behaviors such as feeling constantly afraid
and not wanting to leave her house or be seen by anyone; she denied any suicidal thoughts. (AR
492). Dr. Armstrong prescribed Seroquel and assessed atypical depressive disorder and concern
of schizophrenia versus bipolar disorder with psychotic features. (AR 492). Several weeks later,
Laggner reported that she had stopped taking Seroquel because it made her feel sleepy,
nauseous, and “drunk constantly.” (AR 491).
In June 2010, Laggner went to the emergency room for low back pain radiating to her left
hip and knee. (AR 525). She rated her pain as a 10, stating that it was worse when rising from
or sitting down on a chair; she also complained of occasional numbness. (AR 525). The

workers). Id. And, a GAF score of 61 to 70 reflects some mild symptoms or some difficulty in social, occupational,
or school functioning, but “generally functioning pretty well.” Id.
“The American Psychiatric Association no longer uses the GAF as a metric.” Spencer v. Colvin, No. 13-cv1487, 2015 WL 684545, at *17 n.5 (C.D. Ill. Feb. 17, 2015) (citing Am. Psychiatric Ass’n, Diagnostic & Statistical
Manual of Mental Disorders 16 (5th ed. 2013)). However, the medical sources of record used GAF scores in
assessing Laggner, so they are relevant to the ALJ’s decision. See id. (citing Bates v. Colvin, 736 F.3d 1093, 1099
(7th Cir. 2013)).

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emergency room doctor prescribed her a Medrol Dosepak and Darvocet, recommended that she
sleep on a firm surface, and instructed her to follow up with her family physician. (AR 526).
In December 2010, Laggner went to the emergency room with complaints of increasing
back pain that was radiating into her hips in the last few days. (AR 523-24). On exam, she had
diffuse tenderness over the lower lumbar paraspinous muscles and over the sciatic nerve,
consistent with sciatica. (AR 523). She demonstrated normal range of motion and strength, and
a straight leg raise test was negative. (AR 523). She was given a Demerol injection, prescribed
Flexeril and Vicodin, and instructed to apply ice packs and see her family doctor. (AR 526).
Several days later, Laggner visited Dr. Armstrong, reporting that she was experiencing
severe pain in her low back and right leg and that she could not sleep, sit, or lie down for long.
(AR 546). She stated that she had not seen a pain management doctor because of her financial
limitations. (AR 546). On exam, she had tenderness in her lumbar spine and buttocks, and a
straight leg raise test was positive. (AR 546). Dr. Armstrong added Percocet and Prednisone to
her medication regimen, encouraged a healthy diet, and stressed the importance of regular
exercise. (AR 547). Laggner returned a week later and reported that she was 50 percent
improved, even though the Percocet made her sleepy and she had stopped Prednisone after three
days because it gave her a migraine. (AR 544). Dr. Armstrong started her on a Medrol
Dosepak. (AR 545).
In January 2011, Laggner returned to Dr. Armstrong, complaining of worsening neck
pain; she was taking Flexeril and Vicodin as needed, though the Vicodin made her feel nauseous.
(AR 542). An MRI of Laggner’s cervical spine several weeks earlier showed mild and nearmoderate C5-C6 degenerative disc disease with an associated midline annular tear. (AR 521).

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The following month, Laggner saw Dr. Phuong upon referral from Dr. Armstrong for a twomonth history of neck pain. (AR 566). The pain was centered in her neck, but sometimes
radiated into her arms; her neck was quite stiff and the pain worsened with neck extension, but
she had normal strength and sensation. (AR 566). Dr. Phuong diagnosed a C5-C6 central and
right paracentral disc protrusion and presented Laggner with options of conservative treatment or
surgery. (AR 567). Laggner opted for surgery, and on March 2, 2011, Dr. Phuong performed an
anterior C5-C6 discectomy and fusion. (AR 551-52).
In March 2011, Laggner underwent a psychological evaluation by Kenneth Bundza,
Ph.D. (AR 591). Laggner was anxious and tearful, but she was cooperative; she stated that she
had been homeless for the past seven months, living with various family and friends. (AR 592).
The mental status exam revealed that Laggner had an average range of intelligence and was
capable of managing her own funds. (AR 593). Her long-term memory was intact. (AR 592).
Although she had access to medical care, she was currently not receiving any formal mental
health treatment, other than medications prescribed by her family doctor, which gave Dr. Bundza
the impression that she was “at baseline with her symptoms.” (AR 591, 593). He did not
anticipate any significant improvement, noting that her emotional issues were negatively
influenced by her life situation and multiple psychosocial stressors (homelessness, no income,
and family problems). (AR 592-93). He assigned her a GAF of 60 and diagnosed a major
depressive disorder, recurrent, severe, without psychotic features; a panic disorder without
agoraphobia; and a generalized anxiety disorder. (AR 593-94).
In April 2011, Laggner told Dr. Armstrong that she had doubled her Ativan because she
could not control her thoughts when going to sleep. (AR 691). She was having a hard time

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dealing with family stress and moving from place to place. (AR 691). She reported still having
neck pain. (AR 691). In June, Laggner presented to the emergency room with a panic attack
after she was kicked out of her daughter’s home. (AR 697). She stated that she usually takes
Ativan for a panic attack, but was vomiting and could not keep them down. (AR 697). She
denied any suicidal ideation. (AR 697). One week later, Laggner went to another emergency
room, reporting suicidal thoughts and feeling scared, depressed, and abandoned. (AR 726). She
stated that her children did not want anything to do with her and think she is faking her panic
attacks to gain attention. (AR 726). The emergency room doctor assessed depression, suicidal
ideation, and anxiety; Laggner was voluntarily admitted to the Northeastern Center. (AR 72526).
When discharging Laggner from the Northeastern Center two days later, Dr. Lynnea
Carder wrote that Laggner’s mood was depressed; her thought process was logical, coherent, and
goal directed; and her thought content was without any psychosis or perceptual disturbances.
(AR 734). Laggner denied violent or angry thoughts; her memory was intact, and her attention
and concentration were normal. (AR 734). Dr. Cardner wrote that Laggner had “very quickly
returned to normal” upon admission and that she had limited insight into the role she played in
her family problems. (AR 735). A case manager talked with one of Laggner’s daughters who
stated that Laggner was causing a lot of the problems herself, was attention-seeking, and would
barge into family homes after being asked not to do so. (AR 735). Laggner was pleasant and
cooperative throughout her stay, stating that her thoughts of self harm did not return; upon
discharge, Laggner planned to reside with a daughter until she moved to Florida to stay with a
brother. (AR 735). At no time during Laggner’s stay did hospital staff observe any panic

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attacks. (AR 735). Dr. Cardner assigned Laggner a GAF score of 35 upon admission and 50
upon discharge. (AR 733).
In May 2011, Laggner visited the emergency room four days in a row, complaining of
progressively worsening back pain. (AR 628-46, 656-76). On the fourth visit, she was admitted,
rating her pain as a 10. (AR 661-62). An MRI showed lumbar spondylosis, disc and facet
degenerative changes with posterior left L3-L4 disc protrusion, mass effect upon the left L4
nerve root, minimal L3-L4 and L4-L5 degenerative central canal stenosis, minimal bilateral L5S1 facet arthropathy, wedge configuration of L1, and multilevel lumbar Schmorl’s nodes. (AR
673). A thoracic MRI showed spondylosis and disc degenerative changes, with small disc
protrusions at T7-T8 and T10-T11. (AR 675). Laggner was discharged two days later on May
20, 2011, with diagnoses of L4 radiculopathy, L3-L4 and L4-L5 degeneration, and depression;
she rated her pain as a six at the time. (AR 644, 664). Although the hospital had difficulty
finding a pain specialist that would see Laggner because of her lack of health insurance, it did
manage to schedule a consultation for her later that same day with Dr. Chandan Chauhan Negi at
Neuro Northeast. (AR 664).
At the consultation, Laggner told Dr. Negi that her mid-thoracic pain was aggravated by
deep breathing and physical exertion. (AR 679). She stated that her surgeries had helped her
lower back pain, but that she began to have increased pain a year later. (AR 679). Dr. Negi
diagnosed acute pain syndrome at a non-surgical site, disc herniation at T7-T8 and T10-T11, and
acute mid-thoracic lumbar pain. (AR 680). He set a pain management appointment with a
colleague and recommended that Laggner continue taking Vicodin and Ibuprofen. (AR 681).
On June 3, 2011, Laggner was seen by Dr. Daniel Roth at the Centers for Pain Relief for

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her complaints of low back pain radiating into her left leg and neck pain. (AR 682). She rated
her back pain as a three, but stated that it increases to a 10 when she sits or stands, sometimes
making it hard to breathe; she rated her neck pain as a six, stating that it radiates into her left
arm. (AR 682). She indicated that her pain is decreased with prescription medications and
inactivity, but aggravated by bending, lifting, and sitting. (AR 682). She admitted being
prescribed Vicodin and Flexeril, stating that she was taking them “on a PRN basis.” (AR 682).
Upon exam, Laggner demonstrated essentially normal strength and sensation, except for some
decreased light touch in the left L5 and left C7 dermatomes and slightly reduced strength in her
left ankle and hand. (AR 683). Dr. Roth diagnosed lumbar radiculopathy L5; sacroiliitis, left
greater than right; lumbar facet arthropathy, left greater than right, and cervical radiculopathy
left C7. (AR 684). He prescribed Lyrica and referred Laggner for a series of spinal injections.
(AR 684; see AR 685-89, 713, 719). On June 21, 2011, Laggner saw Dr. Phuong, who noted
that Laggner had persistent neck pain. (AR 709). He observed that a cervical x-ray revealed that
the bone graft and instrumentation were in good position; he encouraged her to continue care
with Dr. Roth. (AR 709).
In February 2012, Laggner underwent a physical examination by Dr. Venkata Kancherla
as part of her disability application. (AR 765). She was anxious, hyperventilating, and grunting
throughout the examination. (AR 767). She exhibited normal strength and gait, and she was
able to walk on her heels and toes and partially squat; her dexterity was normal. (AR 766-67).
She could recline, get up from a chair, take off and put on her socks by crossing her legs, and get
on and off the table without assistance. (AR 766). Dr. Kancherla’s “only significant physical
findings” were impaired sensation in Laggner’s left upper and lower extremities overlying

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dermatomes L4, L5, and S1; impaired vibration over her left foot; and positive straight leg tests
bilaterally. (AR 767). Laggner was taking only over-the-counter medications at the time. (AR
774).
That same month, Laggner underwent a mental status examination by Robert Walsh,
Psy.D., as part of her disability application. (AR 762-64). Laggner complained of having panic
attacks every two to three weeks, feelings of loneliness, a depressed mood, difficulty sleeping,
fatigue, poor concentration, and recurrent thoughts of death; she denied any current suicidal
ideation, hallucinations, or delusions. (AR 762-63). On mental status exam, Laggner’s affect
was animated, and her mood was anxious and extremely tearful. (AR 763). Her thought
processes were logical; her attention, concentration, insight, and judgment all appeared fair. (AR
763). Dr. Walsh assigned her a GAF score of 49 and diagnoses of major depressive disorder,
recurrent, severe without psychotic features; and panic disorder with agoraphobia. (AR 764).
In July 2012, Laggner returned to the emergency room with complaints of back and right
hip pain that had been worsening in the past few days. (AR 801). She claimed she was unable
to walk, yet had walked into the emergency room; when the doctor pressed her a bit more about
the details of walking, Laggner admitted she was able to do so. (AR 801). A straight leg raise
test on the right was negative; she initially could not lift the leg, but with some encouragement
she was able to hold it off of the bed. (AR 801). She felt a little better after receiving some
Decadron, Valium, and Toradol. (AR 802). The doctor found imaging tests unnecessary,
prescribed Flexeril in addition to her other medications, and instructed her to see her family
doctor. (AR 802).
Laggner visited the emergency room several times in April and May of 2013. (AR 814,

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817, 819). She was diagnosed with back pain, sciatica, or a headache; prescribed Hydrocodone,
Flexeril, or Prednisone; and instructed to see her family doctor. (AR 814-20).
Laggner’s records were reviewed by state agency physicians R. Fife, M.D., in December
2009; Fernando Montoya, M.D., in March 2011; and M. Brill, M.D., in February 2012. (AR
443-50, 595-602, 783-90). These doctors concluded that Laggner could lift 10 pounds
frequently and 20 pounds occasionally; stand or walk about six hours in an eight-hour workday;
sit for six hours in an eight-hour workday; perform unlimited pushing or pulling (within her
lifting restrictions); and occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and
stairs. (AR 443-47, 595-602, 783-90).
Additionally, Laggner’s records were reviewed by Donna Unversaw, Ph.D., a state
agency psychologist, in December 2009, who concluded that although Laggner had mild
restrictions in daily living activities and moderate difficulties in maintaining social functioning
and in maintaining concentration, persistence, or pace, she retained the capacity to perform
routine tasks on a sustained level without special considerations. (AR 453-55). Dr. Unversaw
reviewed Laggner’s records again in March 2011 and found that although Laggner had mild
difficulties in daily living activities and in maintaining concentration, persistence, or pace, and
moderate difficulties in maintaining social functioning, she could still perform unskilled tasks
consistent with her physical abilities. (AR 603-19). Similarly, in February 2012, Stacia Hill,
Ph.D., a state agency psychologist, concluded that although Laggner had mild difficulties in
daily living activities and in maintaining social functioning, and moderate difficulties in
maintaining concentration, persistence, or pace, she could still perform simple tasks, attend to
task for sufficient periods of time to complete tasks, manage the stresses involved with simple

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work, and relate on at least a superficial basis with coworkers and supervisors. (AR 769-79,
791-94).
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 she “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.”

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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 acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. §
1382c(a)(3)(D).
In determining whether Laggner is disabled as defined by the Act, the ALJ conducted the
familiar five-step analytical process, which required her 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 her past work; and (5) whether the claimant is incapable of
performing work in the national economy.5 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 Commissioner’s Final Decision
On May 14, 2013, the ALJ issued the decision that ultimately became the
Commissioner’s final decision. (AR 11-24). The ALJ noted at step one of the five-step analysis
that Laggner had not engaged in substantial gainful activity since her application date of

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Before performing steps four and five, the ALJ must determine the claimant’s RFC or what tasks the
claimant can do despite her 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).

16

December 12, 2011. (AR 13). At step two, the ALJ found that Laggner had the following
severe impairments: degenerative disc disease of the spine, status post cervical fusion and
lumbar surgery (discectomy and foraminotomy), depression, and anxiety. (AR 13).
At step three, the ALJ concluded that Laggner did not have an impairment or
combination of impairments severe enough to meet or equal a listing. (AR 19). Before
proceeding to step four, the ALJ determined that Laggner’s symptom testimony was not fully
credible and assigned her the following RFC:
[T]he claimant has the [RFC] to perform and sustain light work . . . with lifting 20
pounds occasionally [and] 10 pounds frequently, standing or walking six hours
total in an eight-hour workday, and sitting six hours total in an eight-hour
workday. She can occasionally climb ramps or stairs, balance, stoop, kneel,
crouch, crawl; and never climb ladders, ropes or scaffolds. She can perform
simple, routine, and repetitive tasks in a work environment free of fast paced
production requirements, involving only simple, work-related decisions, with few,
if any, work place changes, and only superficial interaction with the public,
coworkers, and supervisors.
(AR 21).
Based on this RFC and the VE’s testimony, the ALJ concluded at step four that Laggner
was unable to perform any of her past relevant work. (AR 22). The ALJ then concluded at step
five that she could perform a significant number of other light work jobs within the economy,
including housekeeper, cashier, and laundry worker.6 (Tr. 23). Accordingly, Laggner’s claim
for SSI was denied. (AR 24).

6

In addition, the VE testified at step five that even if the hypothetical individual with Laggner’s RFC,
experience, and education were further limited to sedentary work (lifting 10 pounds occasionally, standing or
walking two hours in an eight-hour period, and sitting for six hours in an eight-hour period), such individual could
still perform a significant number of sedentary jobs in the economy, including packager, assembler, and inspector.
(AR 73). Thus, even if Laggner were limited to sedentary work instead of light work, the outcome would be the
same.

17

C. The ALJ’s Credibility Determination Will Be Not Be Disturbed
Laggner first argues that the ALJ improperly discounted the credibility of her symptom
testimony. However, the ALJ’s credibility determination, though imperfect, has adequate
support in the record, and thus, will not be disturbed.
Because the ALJ is in the best position to evaluate a witness’s “truthfulness and
forthrightness,” an ALJ’s credibility determination is entitled to special deference. Shideler v.
Astrue, 888 F.3d 306, 310-11 (7th Cir. 2012); see Powers v. Apfel, 207 F.3d 431, 435 (7th Cir.
2000). If an ALJ’s determination is grounded in the record and she articulates her analysis of the
evidence “at least at a minimum level,” Ray v. Bowen, 843 F.2d 998, 1002 (7th Cir. 1988)
(citation omitted), creating “an accurate and logical bridge between the evidence and the result,”
Ribaudo v. Barnhart, 458 F.3d 580, 584 (7th Cir. 2006) (citation omitted), her determination will
be upheld unless it is “patently wrong,” Powers, 207 F.3d at 435; see 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”); Herron v. Shalala, 19 F.3d 329, 335 (7th Cir. 1995) (“[Because] the ALJ is in the best
position to observe witnesses, [courts] usually do not upset credibility determinations on appeal
so long as they find some support in the record and are not patently wrong.” (citations omitted)).
Here, the ALJ found that Laggner had an underlying medically determinable physical
impairment that could reasonably be expected to produce her alleged symptoms. (AR 21).
However, after reviewing the objective medical evidence, Laggner’s statements, her use of
medication and treatment, and her daily activities, the ALJ concluded that Laggner’s statements
concerning the intensity, persistence, and limiting effects of her symptoms were not fully

18

credible. (AR 22). In doing so, the ALJ articulated:
[Laggner’s] daily activities . . . are not limited to the extent one would expect,
given the complaints of disabling symptoms and limitations. The documented
objective findings failed to support the severity of symptoms alleged and the
evidence suggest[s] that the claimant exaggerated symptoms and limitations. In
fact, in July 2012, she reported an inability to walk, but when called on it by the
examiner, she admitted she could walk. The record reflects that she made
inconsistent statement(s) on various matters relevant to the issue of disability.
She testified that [] two or three weeks after her first surgery her pain returned,
but medical records showed that months later she reported no back pain or
tenderness, and had normal range of motion. . . . Additionally, despite the
complaints of allegedly disabling symptoms, the claimant stated that she only
used over the counter medications for physical symptoms, and documented
findings on emergency room visits tend[ed] to be fairly normal. She has not
sought or received ongoing treatment from a mental health specialist (medication
prescribed by her primary general practitioner).
(AR 21-22).
Significantly, Laggner does not dispute the ALJ’s observation that the severity of her
complaints are not supported by the objective medical evidence. (DE 15 at 18). Nor does
Laggner dispute the ALJ’s statement that the documented findings at her emergency room visits
tended to be fairly normal. (DE 15 at 18). Rather, Laggner challenges the other factors cited by
the ALJ, emphasizing that an ALJ must not discredit a claimant solely for the reason that her
symptoms are not fully substantiated by the objective medical evidence. (DE 15 at 18 (citing
Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009))). Laggner, however, has a tough hill to
climb as an ALJ’s credibility assessment “will stand ‘as long as [there is] some support in the
record.’” Berger v. Astrue, 516 F.3d 539, 546 (7th Cir. 2008) (alteration in original) (quoting
Schmidt v. Astrue, 496 F.3d 833, 842 (7th Cir. 2007)).
As an additional factor to the objective medical evidence, the ALJ observed that the
evidence suggests Laggner exaggerated her symptoms and limitations. To illustrate this point,

19

the ALJ cited Laggner’s July 2012 visit to the emergency room where she told the doctor that
she was unable to walk, but after the doctor pressed her a bit and noted that she had walked into
the emergency room, Laggner conceded that she was indeed able to walk. (AR 21-22 (citing AR
801)). Laggner criticizes the ALJ’s finding, asserting that Laggner “was not speaking in the
literal sense.” (DE 15 at 15). But the emergency room doctor specifically documented the
inconsistency he observed between Laggner’s description of her physical ability and his
observation of her physical performance. Thus, the ALJ’s observation is neither “patently
wrong” nor “divorced from the facts contained in the record.” Berger, 516 F.3d at 546. As such,
the ALJ’s observation must stand. The Court “do[es] not reweigh the evidence, resolve
conflicts, decide questions of credibility, or substitute our own judgment for that of the
Commissioner.” Clifford, 227 F.3d at 869 (citations omitted).
As an additional factor, the ALJ found that Laggner had made inconsistent statements on
various matters relevant to the issue of disability. As an example, the ALJ stated that Laggner
testified that her back pain had returned within two to three weeks of her first surgery in October
2008, but that “medical records show that months later she reported no back pain or tenderness
and had normal range of motion.” (AR 22). Laggner challenges this example, stating that it is
unclear to which “medical records” the ALJ was referring because none were cited, and in any
event, she actually testified that her pain returned several months after her first surgery, not
weeks.
It is apparent, however, that the ALJ was referring to Laggner’s April 2009 visit to the
emergency room for chest discomfort, headache, and nausea, summarized earlier in the ALJ’s
decision. (AR 14). As the ALJ noted, the emergency room evaluation reflected that Laggner

20

was without back pain or tenderness and had normal range of motion and strength in her
extremities. (AR 392). Laggner is correct, however, that she testified her pain returned “only a
couple of months” after her first surgery, rather than within two to three weeks as the ALJ
recited. (AR 49). But that still doesn’t make Laggner’s statement fully credible. By the April
2009 emergency room visit, six months had passed since her first surgery, and Laggner was
without back pain or tenderness and had normal range of motion and strength in her extremities.
(AR 382). Furthermore, in October 2009, which was a full year after her first back surgery, Dr.
Phuong wrote that Laggner “did well until one week ago, when she developed recurrent low back
and left leg pain.” (AR 431 (emphasis added)). Therefore, even though the ALJ misquoted
Laggner’s testimony by stating “weeks” rather than “months,” Laggner’s testimony that her pain
returned within “only a couple of months” was still not fully credible.7 See Hill v. Astrue, No.
1:08-cv-0740-DFH-JMS, 2009 WL 426048, at *10 (S.D. Ind. Feb. 20, 2009) (discounting a
claimant’s credibility where discrepancies were noted between her testimony and her statements
to her physicians); see generally Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989) (“No
principle of administrative law or common sense requires us to remand a case in quest of a
perfect opinion unless there is reason to believe that the remand might lead to a different result.”
(citations omitted)).
Two other factors that the ALJ considered were that Laggner was using only over-thecounter medications for her physical symptoms at the time, and that she had not sought or
received any ongoing mental health treatment from a mental health specialist, taking only
7

As the ALJ acknowledged, “[a]lthough inconsistent information provided by the claimant may not be the
result of a conscious intention to mislead, . . . the inconsistencies suggest that the information provided by the
claimant generally may not be entirely reliable.” (AR 22).

21

medication prescribed by her general practitioner. (AR 48, 52, 60, 767). An ALJ is instructed to
consider a claimant’s use of medication, together with the treatment she has received. See 20
C.F.R. § 416.929(c)(3). Laggner, however, asserts that the ALJ violated Social Security Ruling
96-7p by improperly drawing a negative inference from her failure to seek medication and
treatment without first considering her explanation for that failure—the loss of her health
insurance and her financial restrictions. 1996 WL 374186, at *7-8 (July 2, 1996); Craft v.
Astrue, 539 F.3d 668, 679 (7th Cir. 2008).
But the record reflects that the ALJ was well aware of Laggner’s loss of health insurance,
her receipt of free care from a community clinic, and her financial restrictions, as these topics
were specifically mentioned at the hearing and in the ALJ’s decision. (AR 19, 43, 52, 55, 6062). The ALJ also considered Dr. Kancherla’s examination in February 2012, which revealed
just minimal physical findings and observed that Laggner was taking only over-the-counter
medications at the time. (DE 18 (citing DE 767)). Similarly, in June 2011, Dr. Roth noted that
Laggner admitted being prescribed Vicodin and Flexeril, but reported taking them “on a PRN
basis,” that is, only as needed. (AR 682). In fact, at the hearing, Laggner testified that her back
pain was occurring just “every other day.” (AR 48). Additionally, the ALJ observed that
Laggner’s symptoms improved when she did take prescription medication. (AR 19, 56, 544,
682). Nor is there evidence that Laggner sought regular treatment from a mental health
specialist even when she was insured. (See, e.g., 593). Considering the record as a whole, the
ALJ did not run afoul of Social Security Ruling 96-7p when stating that Laggner relied on overthe-counter medications for her physical symptoms and did not seek regular treatment from a
mental health specialist. (AR 19). See Buckhanon ex rel. J.H. v. Astrue, 368 F. App’x 674,

22

678-69 (7th Cir. 2010) (collecting cases holding that “tidy packaging” is not required in ALJs’
decisions because the courts read them “as a whole and with common sense”).
As an additional factor, the ALJ considered Laggner’s daily activities, viewing her ability
to perform her own personal care, laundry, dishes, and household tasks as “not limited to the
extent one would expect, given the complaints of disabling symptoms and limitations.” (AR 21).
It is appropriate for an ALJ to consider a claimant’s daily activities as a factor when evaluating a
claimant’s credibility. SSR 96-7p, 1996 WL 374186, at *3; see Loveless v. Colvin, 810 F.3d
502, 508 (7th Cir. 2016) (affirming the ALJ’s consideration of the claimant’s ability to perform
light household chores, drive a car, and shop for groceries when assigning an RFC for light work
with limitations). Laggner argues, however, that the ALJ failed to adequately explain how her
minimal daily activities were inconsistent with her testimony of disabling limitations. The Court
agrees that the ALJ should have more specifically explained how Laggner’s daily activities were
inconsistent with her subjective complaints. See Jelinek v. Astrue, 662 F.3d 805, 812 (7th Cir.
2011) (“[A]n ALJ may consider a claimant’s daily activities when assessing credibility, but ALJs
must explain perceived inconsistencies between a claimant’s activities and the medical
evidence.”). Consequently, the Court finds the ALJ’s comment about Laggner’s daily living
activities cannot be viewed as supporting her credibility determination.
The question, then, boils down to whether the ALJ’s credibility determination can stand
on the other factors provided by the ALJ and discussed above. In that regard, the Seventh
Circuit has recognized that an ALJ’s reasoning need not be perfect. Halsell v. Astrue, 357 F.
App’x 717, 723 (7th Cir. 2009) (“[A]lthough the ALJ’s reasoning is imperfect, there is
substantial evidence supporting her decision to discount [the claimant’s] credibility.”). “[A]n

23

ALJ’s credibility assessment will stand ‘as long as [there is] some support in the record.’”
Berger, 516 F.3d at 546 (alteration in original) (quoting Schmidt v. Astrue, 496 F.3d 833, 842
(7th Cir. 2007)).
Here, on balance, the lack of explanation in the ALJ’s credibility reasoning concerning
Laggner’s daily activities is not enough to undermine her decision that Laggner’s testimony was
less than fully credible. See Simila v. Astrue, 573 F.3d 503, 517 (7th Cir. 2009) (“Though the
ALJ’s credibility determination was not flawless, it was far from ‘patently wrong.’”). “Not all of
the ALJ’s reasons must be valid as long as enough of them are, and here the ALJ cited other
sound reasons for disbelieving [Laggner].” Halsell, 357 F. App’x at 722-23 (citations omitted);
see also McKinzey v. Astrue, 641 F.3d 884, 891 (7th Cir. 2011) (affirming the ALJ’s credibility
determination even though it “was not without fault”). That is, the other reasons provided by the
ALJ in discounting Laggner’s credibility—a lack of objective medical evidence, statements
suggesting exaggeration or inconsistency, reliance on over-the-counter medications, and lack of
ongoing treatment from mental health specialists—all have some support in the record.
Moreover, as the ALJ observed, the record does not contain any opinion from a treating
or examining doctor indicating that Laggner is disabled or has limitations greater than those
assessed by the ALJ in the RFC.8 (AR 22). To reiterate, “[t]he claimant bears the burden of
producing medical evidence that supports her claims of disability.” Dichstadt v. Astrue, 534
F.3d 663, 668 (7th Cir. 2008). Laggner “cannot fault the ALJ for her own failure to support her
claim for disability.” Hildebrandt v. Astrue, No. 3:09-CV-210 CAN, 2010 WL 670211, at *6

8

Furthermore, as observed supra in footnote 6, even if the ALJ had limited Laggner to sedentary work
instead of light work, the outcome would be the same.

24

(N.D. Ind. Feb. 19, 2010) (“A claimant must provide evidence showing how their impairment
affects their functioning during the time claimant alleges disability, and any other information
that is needed to decide the disability claim.” (citing 20 C.F.R. § 404.1512(c))); see Kasberger v.
Astrue, No. 06-3868, 2007 WL 1849450, at *4 (7th Cir. June 27, 2007) (“An administrative
decision is not subject to reversal merely because substantial evidence would have supported an
opposite decision.” (citation omitted)).
Thus, contrary to Laggner’s assertion, the ALJ adequately considered the credibility of
Laggner’s symptom testimony in accordance with the factors identified in 20 C.F.R. §
416.929(c)(3) and SSR 96-7p. In doing so, the ALJ sufficiently built an accurate and logical
bridge between the evidence and her conclusion, and Laggner has not shown that the ALJ’s
determination is “patently wrong.” Shramek, 226 F.3d at 811; Powers, 207 F.3d at 435.
Accordingly, the ALJ’s credibility determination, which is entitled to special deference, must
stand. See Powers, 207 F.3d at 435.
D. The Mental RFC Assigned by the ALJ Adequately Accounted for Her Mental Limitations
Next, Laggner argues that the RFC assigned by the ALJ does not adequately account for
all of her mental limitations, asserting that she “has been diagnosed with a depressive disorder,
an anxiety disorder, and a panic disorder.” (DE 15 at 20). She contends that as a result of these
impairments, she is afraid to leave the house and be in proximity to others, has no motivation or
energy, and is anxious and fatigued throughout the day. Laggner argues that if the ALJ had
properly accounted for these limitations, the ALJ would have found that she cannot leave the
house or attend work consistent with competitive employment and cannot work in noisy
environments or in proximity to others. (DE 15 at 21).

25

The RFC is a determination of the tasks a claimant can do despite her 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 (July 2, 1996); see 20 C.F.R. § 416.945. Therefore, when determining
the RFC, the ALJ must consider all medically determinable impairments, mental and physical,
even those that are non-severe. 20 C.F.R. § 416.945(a)(2); see Craft, 539 F.3d at 676. The
determination of a claimant’s RFC is reserved to the Commissioner. See 20 C.F.R. §
416.9546(c); SSR 96-5p, 1996 WL 374183, at *4.
Here, the ALJ limited Laggner to work involving only “simple, routine, repetitive tasks
in a work environment free of fast paced production requirements, involving only simple, workrelated decisions, with few, if any, work place changes, and only superficial interactions with the
public, coworkers, and supervisors.” (AR 21). In considering the RFC, the ALJ observed that
the record did not contain any medical source opinion indicating that Laggner was disabled or
that assigned her limitations exceeding those in the RFC ultimately assigned. (AR 22). “It is
axiomatic that the claimant bears the burden of supplying adequate records and evidence to
prove [her] claim of disability.” Scheck v. Barnhart, 357 F.3d 697, 702 (7th Cir. 2004) (citing 20
C.F.R. § 404.1512(c); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987)).
Moreover, the assigned mental RFC is supported by the opinions of Drs. Hill and
Unversaw, the state agency psychologists, and the ALJ relied on these opinions. (See AR 22).

26

Dr. Hill opined in March 2012 that despite Laggner’s mental limitations, she could “understand,
remember, and carry-out simple tasks,” “relate on at least a superficial basis on an ongoing basis
with co-workers and supervisors,” “attend to task for sufficient periods of time to complete
tasks,” and “manage the stresses involved with simple work.” (AR 794). In addition, Dr.
Unversaw opined in March 2011 that Laggner appeared to have the capability to perform
unskilled tasks consistent with her physical abilities. (AR 605). The mental RFC assigned by
the ALJ is consistent with, and even more conservative than, the limitations assigned by these
state agency psychologists. Of course, “[s]tate agency medical and psychological consultants
and other program physicians and psychologists are highly qualified physicians and
psychologists who are also experts in Social Security disability evaluation.” 20 C.F.R. §
416.927(f)(2)(i). “The regulations, and this Circuit, clearly recognize that reviewing physicians
and psychologist[s] are experts in their field and the ALJ is entitled to rely on their expertise.”
Ottman v. Barnhart, 306 F. Supp. 2d. 829, 839 (N.D. Ind. 2004) (citations omitted).
Nevertheless, Laggner argues that the ALJ improperly “played doctor” when she
assigned mental restrictions in the RFC that were more conservative than those assigned by the
state agency psychologists. (DE 22 at 2). But that argument has no traction. “[A]n ALJ is not
required to rely entirely on a particular physician’s opinion or choose between the opinions [of]
any of the claimant’s physicians.” Schmidt v. Astrue, 496 F.3d 833, 845 (7th Cir. 2007) (citation
omitted). As explained above, the determination of a claimant’s RFC is reserved to the
Commissioner and is based upon consideration of all relevant evidence in the case record. SSR
96-5p, 1996 WL 374183, at *4-5; 20 C.F.R. § 416.945.
Laggner further argues that her diagnoses of depression, anxiety, and a panic disorder are

27

sufficient to warrant a more restrictive RFC, contending that these disorders “could reasonably
be expected to cause her symptoms of . . . paranoia, isolative behavior, social withdrawal,
agoraphobia, and panic attacks.” (DE 22 at 4). But the diagnosis of an impairment does not
alone establish its severity and its resulting limitations. See Carradine, 360 F.3d at 754 (“The
issue in the case is not the existence of these various conditions of [claimant’s] but their severity
and, concretely, whether . . . they have caused her such severe pain that she cannot work full
time.”); Bucholz v. Astrue, No. 08-cv-4042, 2009 WL 4931393, at *11 (C.D. Ill. Dec. 15, 2009)
(“The issue for disability benefits is not whether a claimant has a disease, but whether that
disease affects her ability to work.” (citing 20 C.F.R. § 416.945(a)(1))). As emphasized above,
Laggner failed to produce any medical source opinion stating that the symptoms from her
various diagnoses were disabling—a burden that was hers to bear. See Eichstadt, 534 F.3d at
668; 20 C.F.R. § 416.912(c).
In sum, the mental RFC assigned by the ALJ is supported by the opinions of the state
agency psychologists, and there are no other medical source opinions of record assigning
Laggner greater mental limitations. As such, the mental RFC, which is a finding reserved to the
Commissioner, will be affirmed.
E. The ALJ Did Not Constructively Reopen Laggner’s Prior DIB and SSI Applications
Laggner’s final argument is that the ALJ constructively reopened her February 2011
applications for DIB and SSI “by considering the merits of [her] claim as early as 2008.” (DE 15
at 22). Laggner’s argument is unpersuasive.
“There are two ways in which a case may be reopened. The ALJ may make an express
determination pursuant to 20 C.F.R. § 404.988 that the case should be reopened or the ALJ may

28

‘constructively’ reopen the case by reconsidering the prior claim on its merits.” Girard v.
Chater, 918 F. Supp. 42, 44 (D.R.I. 1996) (collecting cases). “A prior disability claim is not
deemed to have been reconsidered on the merits merely because the evidence reviewed by the
ALJ included evidence of the claimant’s condition at the time of the previous application.” Id.;
see Pugh v. Bowen, 670 F. Supp. 812, 813 (N.D. Ill. 1987) (“[R]eview of all the medical
evidence in the case (including that which was previously submitted) is not the equivalent of
reviewing the merits of the claims decided in prior proceedings.”). Indeed, “[a]n ALJ is entitled
to consider evidence from a prior denial for the limited purpose of reviewing the preliminary
facts or cumulative medical history necessary to determine whether the claimant was disabled at
the time of his second application.” Girard, 918 F. Supp. at 44 (citation omitted); see Pugh, 670
F. Supp. at 813 (“There is nothing in the record to indicate that the merits of the old petitions
were considered. What was considered was the entire medical file containing new and old
matters to enable the ALJ to decide present disability and its onset.”).
Here, the ALJ reasonably considered all of the medical evidence presented to her, which
dated back to 2008. (AR 11). No statement by the ALJ, however, fairly implies that she was
reopening old matters; in fact, in the introductory paragraph of her decision the ALJ specifically
stated that she was not reopening Laggner’s prior applications. (AR 11 (“The undersigned does
not find a basis for reopening the claimant’s prior Title XVI applications (20 CFR 416.1488).”).
Consistent with this introductory statement, the ALJ throughout the decision stated that she was
considering Laggner’s December 12, 2011, application for SSI.
In that regard, the ALJ specifically noted in the statement of issues that although SSI is
not payable prior to the month following the month in which the application was filed, she

29

“considered the complete medical history consistent with 20 CFR 416.912(d).” (AR 11). In that
same section, the ALJ concluded that Laggner was not disabled “since December 12, 2011, the
date the application was filed.” (AR 11). Likewise, in her Findings of Fact and Conclusions of
Law, the ALJ found at step one that Laggner had not engaged in substantial gainful activity
“since December 12, 2011, the application date.” (AR 13). And when concluding her Findings
of Fact and Conclusions of Law, the ALJ found that Laggner had “not been under a disability . . .
since December 12, 2011, the date the application was filed.” (AR 24).
As such, there is no indication that the ALJ reconsidered the previous denial of disability
benefits or that she purported to determine whether Laggner was disabled before December 12,
2011. Rather, as already observed, the ALJ specifically refused to reopen Laggner’s prior claims
for DIB and SSI. Any observations the ALJ made about Laggner’s impairments at the time of
the previous applications were made in the context of determining whether she was disabled for
SSI purposes as of December 12, 2011. See Girard, 918 F. Supp. at 45-46; Pugh, 670 F. Supp.
at 813. Consequently, Laggner’s assertion that the ALJ constructively reopened her February
2011 DIB and SSI applications is unavailing.
V. CONCLUSION
For the foregoing reasons, the decision of the Commissioner is AFFIRMED. The Clerk
is directed to enter a judgment in favor of the Commissioner and against Laggner.
SO ORDERED.
Enter for this 30th day of March 2016.
/s/ Susan Collins
Susan Collins,
United States Magistrate Judge

30