Martz-Hamilton v. Commissioner of Social Security

Filing 21

OPINION AND ORDER: The decision of the Commissioner of Social Security is AFFIRMED. The Clerk is DIRECTED to enter judgment in favor of the Commissioner and against Martz-Hamilton. Signed by Magistrate Judge Susan L Collins on 8/23/18. (ksp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
LINNEA MARTZ-HAMILTON,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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CAUSE NO. 1:16-cv-00319-SLC

OPINION AND ORDER
Plaintiff Linnea Martz-Hamilton 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 disability insurance benefits (“DIB”).1 (DE 1). For the following
reasons, the Commissioner’s decision will be AFFIRMED.
I. FACTUAL AND PROCEDURAL HISTORY
Martz-Hamilton applied for DIB in May 2013, alleging disability as of May 31, 2005.
(DE 12 Administrative Record (“AR”) 123-29). Martz-Hamilton was last insured for DIB on
March 31, 2010 (AR 139), and therefore, she must establish that she was disabled as of that date.
See Stevenson v. Chater, 105 F.3d 1151, 1154 (7th Cir. 1997) (explaining that a claimant must
establish that she was disabled as of her date last insured in order to recover DIB benefits).
The Commissioner denied Martz-Hamilton’s application initially and upon
reconsideration. (AR 63-66, 70-76). After a timely request, a hearing was held on December 10,
2014, before Administrative Law Judge Steven J. Neary (the “ALJ”), at which Martz-Hamilton,

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All parties have consented to the Magistrate Judge. (DE 10); see 28 U.S.C. § 636(c).

who was represented by counsel; Martz-Hamilton’s husband; and Sharon Ringenberg, a
vocational expert (the “VE”), testified. (AR 30-50). On February 13, 2015, the ALJ rendered an
unfavorable decision to Martz-Hamilton, concluding that she was not disabled because despite
the limitations caused by her impairments, she could perform her past relevant work as a nail
technician, as well as a significant number of unskilled, sedentary jobs in the economy. (AR 1926). Martz-Hamilton requested a review by the Appeals Council and submitted additional
evidence therewith, but her request was denied by the Appeals Council (AR 1-5), at which point
the ALJ’s decision became the final decision of the Commissioner. See 20 C.F.R. § 404.981.
Martz-Hamilton filed a complaint with this Court on August 31, 2016, seeking relief
from the Commissioner’s decision. (DE 1). In the appeal, Martz-Hamilton alleges that: (1) the
ALJ erred by failing to follow Social Security Ruling (“SSR”) 83-20 for determining the onset
date of her purported disabling impairments; (2) the residual functional capacity (“RFC”)
assigned by the ALJ is not supported by substantial evidence; and (3) the Appeals Council
erroneously concluded that the evidence she submitted with her appeal was not “new and
material.” (DE 12 at 6-15).
As of her date last insured, Martz-Hamilton was 48 years old (AR 139), had a high
school education and specialized job training as a cosmetologist and nail technician (AR 144),
and had work experience as a babysitter and nail technician (AR 144, 192). In her DIB
application, Martz-Hamilton alleged disability due to: congenital hypophosphatemic rickets,
gastroesophageal reflux disease, “white coat hypertension,” “possible fibromyalgia,” menopause,
arthritis in legs and back, and depression. (AR 143).

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II. 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], with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). 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) (citation omitted).
To determine if substantial evidence exists, the Court reviews the entire administrative
record but does not reweigh 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. Jens v. Barnhart, 347 F.3d 209, 212
(7th Cir. 2003) (citation omitted). “In other words, so long as, in light of all the evidence,
reasonable minds could differ concerning whether [the claimant] is disabled, we must affirm the
ALJ’s decision denying benefits.” Books v. Chater, 91 F.3d 972, 978 (7th Cir. 1996).
III. ANALYSIS
A. The Law
Under the Act, a claimant is entitled to DIB if she establishes an “inability to engage in
any substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to . . . last for a continuous period of not less than 12

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months.” 42 U.S.C. §§ 416(i)(1), 423(d)(1)(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.
§ 423(d)(3).
The Commissioner evaluates disability claims pursuant to a five-step evaluation process,
requiring consideration of 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’x 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.2 See
Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001) (citations omitted); 20 C.F.R. §
404.1520. 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)
(citation omitted). 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. (citation omitted). The burden of proof
lies with the claimant at every step except the fifth, where it shifts to the Commissioner.
Clifford, 227 F.3d at 868 (citation omitted).
B. The Commissioner’s Final Decision
On February 13, 2015, the ALJ issued a decision that ultimately became the
Commissioner’s final decision. (AR 19-26). At step one, the ALJ concluded that Martz-

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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 §§ 404.1520(e), 404.1545(a). 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. § 404.1520(e).

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Hamilton had not engaged in substantial gainful activity after her alleged onset date, May 31,
2005, through her date last insured, March 31, 2010. (AR 21). At step two, the ALJ found that
Martz-Hamilton’s congenital rickets was a severe impairment through her date last insured. (AR
22). At step three, the ALJ concluded that Martz-Hamilton did not have an impairment or
combination of impairments severe enough to meet or equal a listing. (AR 22).
Before proceeding to step four, the ALJ determined that Martz-Hamilton’s symptom
testimony was “not entirely credible” (AR 24) and then assigned her an RFC to perform the full
range of sedentary work through her date last insured. (AR 22). Based on this assigned RFC
and
the VE’s testimony, the ALJ found at step four that as of her date last insured Martz-Hamilton
was able to perform her past relevant work as a nail technician, both it was generally performed
and as she actually performed it. (AR 25). Additionally, at step five the ALJ found that MartzHamilton could perform a significant number of unskilled, sedentary jobs in the economy,
including a charge account clerk, a phone order clerk, and an addresser. (AR 26). Therefore,
Martz-Hamilton’s application for DIB was denied. (AR 26).
C. SSR 83-20
Martz-Hamilton first argues that the ALJ said that she was disabled at least as early as
her hearing, and consequently, that the ALJ erred by failing to follow SSR 83-20 to determine
the onset date of her disability. (DE 12 at 6). Martz-Hamilton’s first argument, however,
mischaracterizes the record.
Martz-Hamilton’s argument rests entirely upon a preliminary comment made by the ALJ
at the outset of the hearing when describing the nature of the hearing to Martz-Hamilton. The

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ALJ explained to Martz-Hamilton that because she was applying for DIB and was last insured
for DIB in March 2010, in order to find her disabled he would have to find her disabled as of
March 2010 and that it “[w]ouldn’t matter that I currently find that you’re disabled.” (AR 34).
Martz-Hamilton takes this comment by the ALJ out of context and urges that the ALJ
found that she was currently disabled. Not so. The ALJ’s statement, taken in context, was not
an unequivocal statement as to Martz-Hamilton’s disability at the time of the hearing, but rather,
was akin to a hypothetical illustration. Cf. Campbell v. Chater, 932 F. Supp. 1072, 1078 (N.D.
Ill. 1996) (finding that the ALJ erred by failing to determine the claimant’s onset date of
disability in accordance with SSR 83-20 where the ALJ unequivocally stated at the hearing: “If
your case was the ordinary kind of case where you had what we call insured status right now
where I was just trying to determine what your condition is right now, okay, I would find you
disabled. Okay. There’s no question about that.”). Nor did the ALJ state in his written decision
that he found Martz-Hamilton was currently disabled. (See AR 19-26); cf. Briscoe ex rel. Taylor
v. Barnhart, 425 F.3d 345, 352 (7th Cir. 2005) (“The ALJ found that Taylor’s impairments met
regulation listings on January 4, 1994, and that Taylor was disabled as of that date. . . . Where,
as here, a claimant is found disabled but it is necessary to decide whether the disability arose at
an earlier date, the ALJ is required to apply the analytical framework outlined in SSR 83-20 to
determine the onset date of disability.” (citations omitted)).
Therefore, because the ALJ did not find that Martz-Hamilton was currently disabled,
SSR 83-20 is inapplicable. As a result, Martz-Hamilton’s first argument fails.
D. The RFC
Next, Martz-Hamilton argues that the RFC assigned by the ALJ is not supported by

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substantial evidence, contending that the ALJ improperly relied on his own lay intuition and a
flawed adverse credibility finding. (DE 12 at 9). Contrary to Martz-Hamilton’s assertion, the
RFC assigned by the ALJ is adequately supported.
The RFC is a determination of the tasks a claimant can do despite her limitations. 20
C.F.R. § 404.1545(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. § 404.1545. In doing so, the
ALJ “must consider limitations and restrictions imposed by all of an individual’s impairments,
even those that are not ‘severe’” because they “may—when considered with limitations or
restrictions due to other impairments—be critical to the outcome of a claim.” SSR 96-8p, 1996
WL 374814, at *5. Although an ALJ may decide to adopt the opinions in a medical source
statement concerning the ability of a claimant to perform work-related activities, the RFC
assessment is an issue reserved to the ALJ. SSR 96-5p, 1996 WL 374183, at *4 (July 2, 1996).
When assigning the RFC, the ALJ must sufficiently explain his reasoning to build an “accurate
and logical bridge” between the evidence of record and the RFC. Craft v. Astrue, 539 F.3d 668,
673, 677 (7th Cir. 2008).
1.

The Medical Source Opinions

Martz-Hamilton first faults the ALJ for rejecting all of the medical source opinions of
record. She argues that this left the ALJ “without a stitch” of expert guidance, resulting in his

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improperly relying on his own lay intuition instead. (DE 12 at 9 (quoting Campbell, 932 F.
Supp. at 1079)). But in advancing this argument, Martz-Hamilton fails to acknowledge that it is
she who carries the burden of producing evidence sufficient to prove her DIB claim. See Scheck
v. Barnhart, 357 F.3d 697, 702 (7th Cir. 2004) (“It is axiomatic that the claimant bears the
burden of supplying adequate records and evidence to prove [her] claim of disability.” (citing 20
C.F.R. § 404.1512(c); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987))); see Flener ex rel.
Flener v. Barnhart, 361 F.3d 442, 448 (7th Cir. 2004) (“[T]he primary responsibility for
producing medical evidence demonstrating the severity of impairments remains with the
claimant.” (citation omitted)).
As the ALJ observed, Martz-Hamilton produced no evidence of any medical treatment
during the five-year period from her alleged onset date of May 31, 2005, through her date last
insured of March 31, 2010. (AR 22; see AR 196-249). The evidence that Martz-Hamilton did
produce begins in December 2012—more than two-and-a-half years after her date last insured.
(AR 196-207). This treatment in December 2012 was for dry eyes, muscle weakness,
indigestion, and elevated blood pressure. (AR 24 (citing AR 196-207)). Dr. Michael Mohrman,
Martz-Hamilton’s family physician, wrote in December 2012 that Martz-Hamilton had
congenital rickets resulting in short legs, that she was taking no medication, and that she
“Appears well.” (AR 207). In January 2013, Martz-Hamilton saw Dr. Mohrman for an annual
gynecological exam, reporting that she had been achy in her joints and muscles “over the past
year,” that walking much of a distance was uncomfortable for her, and that she was considering
applying for disability. (AR 24 (citing AR 206-07)). Dr. Mohrman indicated that this “seem[ed]
reasonable to [him].” (AR 206).

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On June 19, 2013, Dr. J. Sands, a state agency physician, reviewed Martz-Hamilton’s
record and found that there was insufficient medical evidence to evaluate the severity of her
allegations prior to her date last insured. (AR 53).
On July 16, 2013, Dr. Mohrman penned a letter stating that Martz-Hamilton had
premature lumbar spondylosis and degenerative arthritis in her knees and hips due to her
congenital rickets; that her back was most severely affected resulting in chronic pain both at rest
and with activity; that her pain had been progressive for the last 10 years and would become
more debilitative in the future; and that she was “currently significantly disabled and ha[d] been
so for the past four to five years.” (AR 208).
On August 14, 2013, Dr. J.V. Corcoran, a state agency physician, reviewed MartzHamilton’s record and found that no additional medical evidence was available from the relevant
time period, and that there was insufficient medical evidence to evaluate severity of her
allegations prior to her date last insured. (AR 59-60). Accordingly, he affirmed Dr. Sands’s
opinion. (AR 60).
On October 1, 2013, Dr. Mohrman completed a RFC questionnaire concerning MartzHamilton’s impairments, identifying her diagnoses as lumbar spondylosis and congenital rickets.
(AR 209-10). He opined that as of March 30, 2010, Martz-Hamilton could sit for one hour at a
time and four to five hours total in an eight-hour workday; stand for 15 minutes at a time and
stand or walk less than two hours in an eight-hour workday; needed to recline four hours each
day; did not need a cane or assistive device to stand or walk; needed a 15-minute break every
two hours in an eight-hour workday; could occasionally lift up to 10 pounds; could never stoop,
crouch, kneel, or climb stairs; and that her symptoms were severe enough to constantly interfere

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with her attention and concentration. (AR 209-10).
One year later, on October 30, 2014, a physical therapist completed a functional capacity
evaluation upon Dr. Mohrman’s referral “to see what [Martz-Hamilton] can and cannot do at this
time for [her] disability hearing.” (AR 230). The therapist indicated that Martz-Hamilton could
lift 10 pounds; occasionally reach, bend, and sit; rarely squat, stand, walk, or climb stairs; and
never crawl or kneel. (AR 230-41). The therapist concluded that Martz-Hamilton’s “material
handling skills would qualify her for [a] sedentary physical demand level position using [The
National Institute for Occupational Safety and Health (NIOSH)] guidelines at this time.” (AR
239).
Martz-Hamilton argues that the ALJ improperly rejected Dr. Mohrman’s opinion that she
was disabled. The ALJ thoroughly considered Dr. Mohrman’s opinion, penning four lengthy
paragraphs on the topic:
The medical records failed to establish disability from the alleged
onset date of disability to the date last insured. Although she has
congenital rickets, there is no record of treatment before December
2012 when she was seen at the emergency room for indigestion
and muscle weakness. At that time, though, she did not report any
pain. When she followed up with Dr. Mohrman[,] he noted that
she appeared well with congenital rickets resulting in short legs.
Even when she saw Dr. Mohrman in January 2013, the claimant
said only that she had been “achy over the past year” (mostly in
her back and knees), not since 2005. Although the claimant told
Dr. Mohrman she could not walk far without discomfort, the
doctor did not observe the use of an assistive device.
....
While the undersigned considered the October 1, 2013, assessment
completed by Dr. Michael Mohrman, . . . the ALJ does not find
this persuasive. Although Dr. Mohrman stated he was “the family
physician . . . and have been such for twenty-five years,” he
admitted in his assessment form that his first treatment of the
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claimant was not until January 24, 2013. At that time claimant
stated that she had been “achy over the past year” mostly in her
back and knees and that walking much of a distance was
uncomfortable for her. She did not report the severe pain and
functional limitations to which she testified as occurring prior to
her date last insured. The ALJ finds this to be a candid and
credible statement as to claimant’s functioning, and has
accordingly concluded that claimant’s ability to stand and walk
was limited. Notwithstanding Dr. Mohrman’s subjective statement
that the claimant “is currently significantly disabled and has been
for the past four to five years,” there are simply no chart notes or
other objective indications to support his conclusory statements.
Furthermore, while the claimant has alleged the need for an
assistive device at least since 2010, Dr. Mohrman specifically
reported in his 2013 questionnaire that the claimant did not need
an assistive device. Moreover, a review of the medical evidence
shows no observation of the claimant even using an assistive
device (walker) before May 2014.
Other unsupported assessed limitations which Dr. Mohrman lists
are not consistent with the claimant’s reports of her own
functioning during the relevant period. For example, although the
claimant acknowledged activity as a children’s (ages 2 to 6)
caregiver through at least mid-2009, Dr. Mohrman stated that the
claimant could do no stooping, crouching, and kneeling at all. The
undersigned also finds it difficult to rely on Dr. Mohrman’s
assessment as it seems internally inconsistent when, for instance,
the claimant is not said to have “good” days and yet not said to be
likely to miss any work days for absences because of “bad” days or
for needed medical treatment. The undersigned concludes that Dr.
Mohrman’s assessment is essentially speculative in nature.
(AR 24-25 (internal citations omitted) (third alteration in original)).
Thus, the ALJ gave several “good reasons” for not fully crediting Dr. Mohrman’s
opinion. See Scott v. Astrue, 647 F.3d 734, 739 (7th Cir. 2011) (“An ALJ must offer ‘good
reasons’ for discounting the opinion of a treating physician.” (citations omitted)). First, with
respect to Dr. Mohrman’s subjective statement that Martz-Hamilton had been “significantly
disabled . . . for the past four to five years,” the ALJ observed that “there are simply no chart

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notes or other objective indications to support his conclusory statements.” (AR 24). “The lack
of objective support for a conclusion is a valid reason for discounting a treating physician’s
opinion.” Brown v. Astrue, No. 1:10-cv-01035-SEB-MJD, 2011 WL 2693522, at *4 (S.D. Ind.
July 8, 2011) (citations omitted); see Henke v. Astrue, 498 F. App’x 636, 640 (7th Cir. 2012)
(“The ALJ rightly emphasized that Dr. Preciado’s sweeping conclusions lacked support in his
own treatment notes.” (citations omitted)).
The ALJ also observed that Dr. Mohrman’s letter and RFC assessment were internally
inconsistent with his own January 2013 treatment note, which reflected that Martz-Hamilton
“Appears well” and had complained of some achiness only over the past year. (AR 24 (citing
AR 206-07)). The ALJ also found Dr. Mohrman’s responses on his October 2013 assessment to
be internally inconsistent, in that Dr. Mohrman indicated that Martz-Hamilton would not have
“good days” or “bad days,” and that she would not miss any days from work due to her
impairments or treatment. (AR 24 (citing AR 211)); see Ketelboeter v. Astrue, 550 F.3d 620,
625 (7th Cir. 2008) (noting that an ALJ can discount a physician’s opinion if it is internally
inconsistent); Clifford, 227 F.3d at 871 (explaining that medical evidence may be discounted if it
is internally inconsistent).
Additionally, the ALJ considered Dr. Mohrman’s opinion inconsistent with other
substantial evidence of record, which is another good reason to discount a treating physician’s
opinion. See Simila v. Astrue, 573 F.3d 503, 515 (7th Cir. 2009) (“[T]he administrative law
judge is not required or indeed permitted to accept medical evidence if it is refuted by other
evidence—which need not itself be medical in nature . . . .” (alteration in original) (quoting
Wilder v. Chater, 64 F.3d 335, 337 (7th Cir. 1995))). The ALJ viewed Martz-Hamilton’s work

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as a childcare provider for four years after her alleged onset date as inconsistent with Dr.
Mohrman’s opinion. (AR 24). In particular, the ALJ found Dr. Mohrman’s opinion that MartzHamilton could never stoop, crouch, or kneel, and his opinion that she had been “significantly
disabled . . . for the past four to five years,” inconsistent with her performance of in-home
childcare before and after school for four children, ages two to six, on a part-time basis from
2005 through mid-2009. (AR 24, 40). Similarly, Dr. Mohrman’s opinion that Martz-Hamilton’s
symptoms were severe enough to “constantly” interfere with her attention and concentration is
logically inconsistent with her performance of in-home childcare, even on a part-time basis, for
four years after her alleged onset date. (AR 209).
In any event, as the Commissioner emphasizes, much of Dr. Mohrman’s October 2013
assessment is consistent with the RFC for sedentary work assigned by the ALJ. “A claimant can
do sedentary work if [she] can (1) sit up for approximately six hours of an eight-hour workday,
(2) do occasional lifting of objects up to ten pounds, and (3) occasionally walk or stand for no
more than about two hours of an eight-hour workday.” Diaz v. Chater, 55 F.3d 300, 306 (7th
Cir. 1995) (citations omitted)). Here, Dr. Mohrman similarly opined that Martz-Hamilton could
sit for four to five hours in an eight-hour workday, lift up to 10 pounds, and stand or walk up to
two hours in an eight-hour workday. (AR 209-10).
In sum, “an ALJ must consider the entire record, but the ALJ is not required to rely
entirely on a particular physician’s opinion or choose between the opinions [of] any of the
claimant’s physicians.” Schmidt v. Astrue, 496 F.3d 833, 845 (7th Cir. 2007). Here, that is
exactly what the ALJ did in weighing Dr. Mohrman’s opinion along with Martz-Hamilton’s
testimony and other record evidence. See id. As such, the ALJ’s discounting of Dr. Mohrman’s

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opinion is supported by substantial evidence.
2.

Credibility of Symptom Testimony

Martz-Hamilton also argues that the assigned RFC is not supported by substantial
evidence for the reason that the ALJ improperly discounted the credibility of her symptom
testimony. Martz-Hamilton contends that the ALJ mischaracterized her part-time work in
childcare from 2005 to 2009, and that having done so, the credibility determination cannot rest
solely on the lack of medical evidence during the relevant period.
An ALJ’s credibility determination concerning a claimant’s symptom testimony 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) (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), his 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”). “[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.” Herron v.
Shalala, 19 F.3d 329, 335 (7th Cir. 1994) (citations omitted).
As stated above, Martz-Hamilton contends that the ALJ “mischaracterized the nature of
[her] sporadic and limited babysitting to imply that it was a relatively constant and grueling

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experience.” (DE 12 at 11). The ALJ did no such thing; rather, it is Martz-Hamilton who
mischaracterizes the ALJ’s decision. The ALJ correctly observed that Martz-Hamilton cared for
four children, ages two to six, both before and after school, and occasionally at other times, from
2005 through mid-2009. (AR 22-24, 40). At no time did the ALJ state or imply that such
childcare work was “relatively constant” or “a grueling experience” as Martz-Hamilton asserts in
her brief.
Rather, the ALJ fairly considered Martz-Hamilton’s performance of part-time childcare
work for four years after her alleged onset date, together with her testimony that by 2009 she
thought she could no longer properly care for the children due to her fatigue and her difficulty
lifting them onto the toilet. (AR 23, 40). The ALJ reasonably concluded, however, that MartzHamilton’s performance of childcare work for four years after 2005 was inconsistent with her
representation on her May 2013 function report that her pain and fatigue had increased in 2005.
(AR 23 (citing AR 161)); see Berger v. Astrue, 516 F.3d 539, 546 (7th Cir. 2008) (“Although the
diminished number of hours per week indicated that Berger was not at his best, the fact that he
could perform some work cuts against his claim that he was totally disabled.”).
The ALJ also observed that while Martz-Hamilton claimed at the hearing that her pain
and fatigue had steadily worsened, she indicated on her reconsideration and hearing level appeal
forms that her impairments had not caused any changes in her daily activities or in her ability to
care for her personal needs. (AR 23 (citing AR 38-39, 173, 181)). Moreover, Martz-Hamilton
did not report worsening symptoms to Dr. Mohrman until January 2013, complaining of feeling
achy only “over the past year,” not since 2005. (AR 24 (citing AR 206-07)); see Sienkiewicz v.
Barnhart, 409 F.3d 798, 804 (7th Cir. 2005) (“[A] discrepancy between the degree of pain

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claimed by the applicant and that suggested by the medical records is probative of exaggeration.”
(citation omitted)). And the ALJ further noted that while Martz-Hamilton claimed that she
needed to use a walker since 2010 because she “do[es]n’t feel stable walking without holding
onto something,” Dr. Mohrman opined in his 2013 questionnaire that Martz-Hamilton did not
need an assistive device; nor is there any medical evidence observing that Martz-Hamilton used
an assistive device before May 2014. (AR 24 (citing AR 42, 210)); see Lemerande v. Berryhill,
No. 17- C-190, 2018 WL 1061462, at *3 (E.D. Wis. Feb. 26, 2018) (“Whether or not the SSA
chooses to use the word ‘credibility,’ statements by the claimant concerning the intensity,
persistence and limiting effects of his or her impairments that are inconsistent with the medical
and other evidence in the record need not be accepted by the ALJ in reaching a decision.”).
At the end of the day, “an 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, when assessing the credibility of MartzHamilton’s symptom testimony, the ALJ built an adequate and logical bridge between the
evidence of record and his conclusion, see Ribaudo, 458 F.3d at 584, and his conclusion is not
“patently wrong,” Powers, 207 F.3d at 435. Consequently, the ALJ’s credibility determination,
which is entitled to special deference, Powers, 207 F.3d at 435, will stand. As such, MartzHamilton’s second argument challenging the assigned RFC is unsuccessful; the RFC is
supported by substantial evidence.
E. Evidence Submitted to the Appeals Council
In her final argument, Martz-Hamilton argues that the Appeals Council committed a legal
error in denying her request for review. With her request to the Appeals Council, Martz-

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Hamilton submitted medical evidence consisting of an office visit note and a letter from Dr. John
Karl L. de Dios, a medical geneticist, dated June 23, 2015. (AR 246-49). Contrary to MartzHamilton’s assertion, the Appeals Council’s action does not constitute a reversible error.
When a claimant provides additional evidence to the Appeals Council, the Council “must
determine (i) whether the proffered new evidence relates to the proper time period and (ii)
whether the evidence is ‘new’ and ‘material.’” Binzen v. Barnhart, No. 01 C 2716, 2002 WL
31324061, at *1 (N.D. Ill. Oct. 16, 2002) (quoting Perkins v. Chater, 107 F.3d 1290, 1294 (7th
Cir. 1997)); see Getch v. Astrue, 539 F.3d 473, 483-84 (7th Cir. 2008); 20 C.F.R. § 404.970(b).
“If the Appeals Council answers both of these questions in the affirmative it must then determine
whether the ALJ’s decision is contrary to all of the evidence, i.e., the evidence before the ALJ
and the new and material evidence submitted to the Appeals Council.” Binzen, 2002 WL
31324061, at *1. “If the Appeals Council denies review at this stage—essentially reasoning that
all of the evidence does not undermine the ALJ’s decision—then the Council’s decision is
unreviewable[,]” id. (citing Perkins, 107 F.3d at 1294), provided, however, that the refusal does
not rest on a mistake of law, such as a determination that the evidence newly submitted to the
Appeals Council was not material to the disability determination. See Eads v. Sec’y of the Dep’t
of Health & Human Servs., 983 F.2d 815, 817 (7th Cir. 1993).
In its Notice of Appeals Council Action, the Appeals Council stated that it considered the
additional evidence submitted by Martz-Hamilton, but it concluded that the additional evidence
did not provide a basis for changing the ALJ’s decision. (AR 28). This language is akin to that
criticized by the Seventh Circuit Court of Appeals in Stepp v. Colvin, 795 F.3d 711 (7th Cir.
2015). In Stepp, the Court found that the Appeals Council’s language was not sufficiently clear

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regarding whether it had denied review because it found that the additional evidence was not
new or material at step one, or because the additional evidence did not render the ALJ’s decision
contrary to the weight of the evidence at step two. Id. at 723. As such, the Seventh Circuit
found that a de novo review of the Appeals Council’s determination concerning whether the
additional evidence qualifies as “new and material” under 20 C.F.R. § 404.970(b) was necessary.
Stepp, 795 F.3d at 725; see also Farrell v. Astrue, 692 F.3d 767, 771 (7th Cir. 2012) (finding
that the Appeals Council’s decision stating that it “considered . . . the additional evidence . . .
[and] found that this information does not provide a basis for changing the [ALJ’s] decision” was
unclear, necessitating the Court’s de novo review of the Appeals Council’s determination (first
three alterations in original)).
Employing a de novo review here, the office visit note and letter from Dr. De Dios does
not qualify as “new and material.” “‘[M]ateriality’ means that there is a ‘reasonable probability’
that the Commissioner would have reached a different conclusion had the evidence been
considered, and ‘new’ means ‘evidence not in existence or available to the claimant at the time
of the administrative proceeding.’” Perkins, 107 F.3d at 1296 (quoting Sample v. Shalala, 999
F.2d 1138, 1144 (7th Cir. 1993)). Admittedly, the office visit note and letter from Dr. De Dios
are “new” in that they were not in existence when the ALJ issued his decision. Compare Sears
v. Bowen, 840 F.2d 394, 399 (7th Cir. 1988) (finding that a psychological evaluation performed
after the ALJ’s decision was new evidence as “it was not in existence at the time of the
administrative proceedings” (citations omitted)), with Sample, 999 F.2d at 1144 (emphasizing
that a physician’s report derived from medical evidence already in the record did not constitute
new information); see also Perkins, 107 F.3d at 1296.

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However, Dr. de Dios’s evidence is not “material” because there is not a “reasonable
probability” that the Commissioner would have reached a different conclusion had the evidence
been considered. See Perkins, 107 F.3d at 1296. To explain, Dr. de Dios definitively qualifies
his opinion at the outset of his letter, stating: “Since this is the first time I am seeing Ms. MartzHamilton, there is no way I can document onset of symptoms with certainty.” (AR 246). He
states the same in his office visit documentation. (AR 248). Dr. de Dios further opines that
based on Martz-Hamilton’s current physical examination findings showing severe symmetrical
bowing and somewhat shortening of the lower legs, it would likely be possible that MartzHamilton’s condition developed only when these bones were developing, which would be in
childhood. (AR 246). Dr. de Dios then closes his letter by stating: “Overall, current physical
finding, her daughter’s medical records and laboratory results, support the likelihood that Ms.
Martz-Hamilton’s condition started in her childhood and symptoms continued to progress to the
state where she is in right now.” (AR 246, 249).
Dr. de Dios’s opinion is not “material” information because the record already reflects
that Martz-Hamilton’s condition developed as a child and has progressively worsened over time.
(See, e.g., AR 208, 226, 230). Thus, Dr. de Dios’s opinion adds nothing new. As such, there is
not a “reasonable probability” that the Commissioner would have reached a different conclusion
had Dr. de Dios’s office visit note and letter been considered. See Perkins, 107 F.3d at 1296.
Consequently, Martz-Hamilton’s final argument also fails to warrant a remand of the
Commissioner’s final decision, and thus, the decision will be affirmed.
IV. CONCLUSION
For the foregoing reasons, the decision of the Commissioner is AFFIRMED. The Clerk

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is directed to enter a judgment in favor of the Commissioner and against Martz-Hamilton.
SO ORDERED.
Entered this 23rd day of August 2018.
/s/ Susan Collins
Susan Collins
United States Magistrate Judge

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