Garcia v. Commissioner of Social Security

Filing 26

OPINION AND ORDER re 1 Complaint finding that the decision of the ALJ is AFFIRMED. Signed by Magistrate Judge Andrew P Rodovich on 3/27/2013. (rmn)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
MICHAEL E. GARCIA,

)
)
Plaintiff,
)
)
v.
) CIVIL NO. 2:12-CV-27-APR
)
MICHAEL J. ASTRUE, Commissioner )
of Social Security,
)
)
Defendant.
)

OPINION AND ORDER
This matter is before the court on the petition for judicial
review of the decision of the Commissioner of Social Security
filed by the claimant, Michael E. Garcia, on January 18, 2012.
For the reasons set forth below, the decision of the Commissioner
is AFFIRMED.
Background
The claimant, Michael E. Garcia, applied for Disability
Insurance Benefits and Supplemental Security Income benefits on
June 28, 2010, alleging a disability onset date of June 1, 2008.
(Tr. 138) His claim initially was denied on August 26, 2010.
Upon reconsideration, his application for DIB and SSI again was
denied on September 24, 2010.

(Tr. 91-94, 102-106) Garcia

requested a hearing before an Administrative Law Judge.

(Tr. 35)

A hearing before ALJ Edward P. Studzinski was held on January 3,

1

2011, at which Leonard Fisher, Ph.D. testified as the vocational
expert and April Warner testified as a witness.

(Tr. 70-83) On

January 27, 2010, the ALJ issued his decision denying benefits.
(Tr. 34-35) The ALJ found that Garcia was not under a disability
within the meaning of the Social Security Act from June 1, 2008
through the date he issued his decision.

(Tr. 17-28) Following a

denial of Garcia’s request for review by the Appeals Council,
Garcia filed his complaint with this court.

(Tr. 4-5)

Garcia was born on September 17, 1979, making him 38 yearsold on the date of the ALJ’s decision.

(Tr. 138-139) He is 5’10”

in height and weighed approximately 175 pounds at the time of the
hearing.

(Tr. 176) Garcia was engaged and resided with his

fiancé and her minor son in a rental home.

(Tr. 186) Garcia has

a GED certificate and last worked as an assembly line worker for
a manufacturing company in 2006.

(Tr. 176-177)

Garcia has a history of alcohol dependence, cirrhosis of the
liver, thrombocytopenia, hepatitis C, and colitis.

(Tr. 246-843)

On June 18, 2010, Garcia went to Saint Anthony’s Hospital
complaining of general abdominal pain and nausea that had been
developing for about two months and worsening for about two
weeks.

(Tr. 259, 271, 281) Garcia admitted to consuming alcohol

on a daily basis and smoking cigarettes and marijuana
occasionally.

(Tr. 249, 281) Dr. Jeffrey Kroll administered a

Complete Blood Count test for Garcia, revealing a low platelet
2

count of 19,000.

(Tr. 281-282) Due to the alarming platelet

count, Dr. Jeffrey Kroll repeated the blood test, which indicated
a platelet count of 18,000.

(Tr. 282) Dr. Kroll also ordered a

CT scan, which showed thickening of Garcia’s gallbladder wall as
well as evidence of cirrhosis.

(Tr. 282) Dr. Kroll prescribed

Zofran and Tylenol for Garcia’s pain.

(Tr. 282) Based on the

blood tests, CT scan, and Dr. Kroll’s diagnoses, Garcia was
admitted to the general floor of Saint Anthony’s Hospital for
observation.

(Tr. 282)

On June 19, 2010, another CT scan and an ultrasound were
ordered.

(Tr. 285) The repeat CT scan and ultrasound confirmed

fatty changes to Garcia’s liver.

(Tr. 285, 288) The findings

also were suggestive of a small polyp within the gallbladder.
(Tr. 285, 288)
During a consultation with Dr. Mary O. Ubanwa on the same
day, Garcia complained that his pain worsened whenever he tried
to “bend down, twist or do any other thing.”

(Tr. 271) Dr.

Ubanwa noted that Garcia took vicodin occasionally.

(Tr. 271)

Dr. Ubanwa’s assessment of Garcia’s medical condition included
cholecystitis, alcoholic hepatitis, thrombocytopenia, leukopenia,
megalocytosis, early cirrhosis, elevated INR, electrolyte
abnormalities, acute alcoholism with withdrawal, and
hypoalbuminemia.

(Tr. 270) Dr. Ubanwa indicated that Garcia’s

“leukopenia, megalocytosis, and thrombocytopenia are most likely
3

secondary to the alcohol...”

(Tr. 270) Dr. Ubanwa further

determined that Garcia definitely had alcoholic hepatitis, the
elevated INR was most likely secondary to the alcohol, and that
the psychiatry department was consulted for Garcia’s withdrawal
symptoms upon Garcia’s request.

(Tr. 270) Further, Dr. Ubanwa

reported Garcia would start on Ativan p.r.n. and delirium tremens
precautions.

(Tr. 270)

On the same day, Dr. Ubanwa referred Garcia to Dr. Seferino
Farias for an evaluation of a possible laparoscopic
cholecystectomy.

(Tr. 264) Dr. Farias noted Garcia had a

partially reducible umbilical hernia and slight hepatomegaly.
(Tr. 265) Dr. Farias found that Garcia’s platelet count had
improved to 26,000, and although he found the “CT scan of the
pelvis [to be] ... completely useless, [as] it was not done with
p.o. or IV contrast,” Dr. Farias did observe some ascites in the
abdominal cavity.

(Tr. 265)

Dr. Farias further noted Garcia’s ashen skin tone and that
Garcia seemed to be in slight acute distress.

(Tr. 265) Dr.

Farias reported that Garcia would not be able to be evaluated by
any transplant center until he had demonstrated sobriety for at
least six months.

(Tr. 265) Furthermore, Dr. Farias explained

that once Garcia reached nutritional homeostasis and was able to
cease drinking alcohol for at least six months he would determine
whether Garcia would be able to undergo a cholecystectomy.
4

(Tr.

263) Dr. Farias indicated that Garcia would need an immediate
infusion of thiamine and folate in order to prevent alcohol
withdrawal symptoms.

(Tr. 263)

Next, Dr. Omar Nehme evaluated Garcia for his alcoholic
liver disease and abdominal pain.

(Tr. 249) Dr. Nehme observed

that Garcia was not in distress and seemed to be alert, awake,
and oriented.

(Tr. 250) Dr. Nehme determined that Garcia

suffered from end-stage liver disease with elevated ammonia,
thrombocytopenia, abdominal pain, and equivocal gallbladder
thickening based on the CT scan of the abdomen and pelvis.

(Tr.

250) Further, Dr. Nehme agreed with Dr. Farias’ assessment to
avoid surgery for Garcia’s gallbladder and umbilical hernia, as
Garcia’s other medical issues made the possible surgeries highrisk endeavors.

(Tr. 250, 263) Dr. Nehme reported that Garcia

would need to have an elective upper endoscopy to screen for
varices.

(Tr. 250) Furthermore, Dr. Nehme described a “long

discussion with [Garcia] about the importance of completely
abstaining from any alcohol intake.” (Tr. 250) Dr. Nehme repeated
the previous doctors’ recommendation to begin withdrawal
precautions as soon as possible.

(Tr. 250) Further, Dr. Nehme

suggested Garcia be prescribed Trental if his bilirubin and INR
continued to rise.

(Tr. 250)

Then, Dr. Vinay K.P. Reddy was consulted for a rheumatology
evaluation.

(Tr. 251) Dr. Reddy noted Garcia’s blood work showed
5

he tested positive for hepatitis B.

(Tr. 251) Dr. Reddy noticed

spots on Garcia’s skin, some bruising, abdominal distention, and
swelling of the legs.

(Tr. 251) Again, Dr. Reddy reported Garcia

certainly had alcoholic cirrhosis, hepatitis B, a low platelet
count, and “all the stigma for alcoholic liver disease.”

(Tr.

252) Dr. Reddy reported Garcia’s ANA test came back positive for
lupus.

(Tr. 252) Although Dr. Reddy was not too concerned about

the positive result, as that was a common test result for
patients who suffered from cirrhosis and hepatitis C, he ordered
a repeat test because those results were slightly worrisome.
(Tr. 252)
Dr. Ray E. Drasga performed the repeat test for Dr. Reddy.
Dr. Drasga found not only that Garcia’s thrombocytopenia was
related to his alcohol use but also that alcohol use was likely
the direct cause of Garcia’s cirrhosis with hypersplemism.
266)

(Tr.

Dr. Drasga advised Garcia to stop drinking alcohol

immediately and to consult a gastroenterologist for chronic liver
disease.

(Tr. 266)

On June 20, 2010, Dr. Kim Bolan Simic evaluated Garcia’s
mental state.

(Tr. 254-255) Dr. Simic reported that Garcia

admitted to drinking eight to ten beers per day since the age of
twenty-five.

(Tr. 254) Further, Garcia admitted to having two

DUI convictions and that he had court ordered treatment in the
past.

(Tr. 254) Dr. Simic reported that Garcia explained that he
6

was frightened by his newfound medical issues, that he wanted to
live, that he intended to avoid friends who used alcohol in order
to maintain sobriety, and that he was interested in attending
outpatient treatment.

(Tr. 255-256) Dr. Simic recommended that

Garcia be prescribed thiamine and folate.

(Tr. 255) Further, Dr.

Simic mentioned she would convert Garcia’s Ativan prescription to
a standing order with p.r.n. Ativan as needed.

(Tr. 255-256)

On June 21, 2010, Garcia received a final report ordered by
Dr. Farias.

(Tr. 287) The final report indicated that although

Garcia did not have hepatocellular disease or cholecystitis, his
gallbladder was functioning poorly, and the results were
consistent with gallbladder dyskinesia.

(Tr. 287) Despite

Garcia’s gallbladder issues, Garcia’s medical condition made
surgery on his gallbladder both dangerous and unreasonable.
After being released from the hospital, Garcia applied for social
security benefits on June 28, 2010.

(Tr. 138-145)

On June 28, 2010, Garcia returned to the Saint Anthony’s
Emergency Department after he ran out of his prescribed Ativan
and Darvocet medications, which he was taking for abdominal pain.
(Tr. 411-412) The nurse at the Emergency Room contacted St. Clare
Clinic, which scheduled an appointment for June 30, 2010 in order
to refill the prescriptions.

(Tr. 411-412) At his appointment at

St. Clare Health Clinic, Garcia received a prescription for

7

Darvocet and was told to stop smoking, to avoid heavy lifting,
and to consult Dr. Nehme and Dr. Farias.

(Tr. 378)

Garcia returned to St. Clare Health Clinic on July 13, 2010,
complaining of increased abdominal pain despite the pain
medications.

(Tr. 623) Garcia also complained that he was unable

to sleep due to the abdominal pain.

(Tr. 623) The treating

clinician noted that Garcia was guarding his abdomen and that he
appeared anxious, nauseous, and forgetful.
prescribed Percocet, Darvocet, and Xanex.

(Tr. 623) Garcia was
(Tr. 623)

Garcia’s Opening Brief states that he returned to St. Clare
Health Clinic on July 22, 2010 and July 27, 2010 complaining of
abdominal pain and weakness.

(Tr. 621-622) The clinician at St.

Clare Health Clinic noted that Garcia had ascites, prescribed
Aldactone, and dismissed Garcia as a candidate for Interferon
treatment for his Hepatitis C because his medical condition was
too severe for treatment.

(Tr. 621-622)

On July 29, 2010, Garcia was referred to Dr. Gary M. Durak,
a clinical psychologist, by the Disability Determination Office
of the Social Security Department of the State of Indiana for a
mental status examination.

(Tr. 512) Dr. Durak found that Garcia

was able to groom, dress, and bathe himself.

(Tr. 514) Also, Dr.

Durak noted Garcia could do simple cooking, very light cleaning,
and very, very light shopping.

(Tr. 514) Garcia told Dr. Durak

that all of his daily activities were slower due to significant
8

pain and exhaustion and that he experienced problems with
mobility in the following areas due to significant pain:
walking, standing, sitting, stair climbing, balancing, bending,
twisting, kneeling, squatting, lifting, reaching, grabbing,
holding, laying down, and sleeping before he was prescribed sleep
medications.

(Tr. 514) Further, Garcia told

Dr. Durak that he

got up between 4:00 A.M. and 6:00 A.M. on a typical day and would
watch television, check mail, read, care for his girlfriend’s
son, do crossword puzzles, take light walks, or work on his
computer throughout the day.

(Tr. 514) Based on the assessment,

Dr. Durak diagnosed Garcia with adjustment disorder with
depressed and anxious mood and severe medical problems, but he
found that Garcia was capable of managing his funds.

(Tr. 515)

On August 10, 2010, Garcia was referred to Dr. Mohammad
Rahmany for testing by the State of Indiana Disability
Determination Bureau.

(Tr. 517-520) Dr. Rahmany found Garcia had

a history of heavy alcohol abuse, clinical and laboratory
evidence of alcoholic cirrhosis, thrombocytopenia, and hepatitis
C.

(Tr. 519) Further, Dr. Rahmany noted that Garcia had not been

treated for Hepatitis C and that Garcia was unable to have a
liver biopsy due to his medical condition.

(Tr. 519) Dr. Rahmany

was under the impression that Garcia “could be considered for a
liver transplantation.

He [was] currently unable to do

functional activity . . . [and] cannot do any labor work.”
9

(Tr.

519) Also, Dr. Rahmany explained that Garcia had developed
cirrhosis with complications as well as an enlarged liver.

(Tr.

519) Dr. Rahmany diagnosed Garcia with Hepatitis C, cirrhosis
with complications, and chronic alcohol abuse.

(Tr. 519)

On September 3, 2010, Garcia was admitted to the Saint
Anthony’s Emergency Department complaining of abdominal pain that
had worsened over the preceding couple of days.
Garcia’s platelet count was 31,000.

(Tr. 630)

(Tr. 634) Garcia had a CT

scan which showed “moderate wall thickening in the cecum and
proximal ascending colon, possible colitis, marked gallbladder
wall thickening with enhancement of the inner wall, chronic more
likely than acute.” (Tr. 634) Dr. Scott Kanagy, D.O. noted that
most of Garcia’s pain was in the right mid and right lower
quadrant, but not in his gallbladder.

(Tr. 634) Dr. Kanagy

stated that Garcia had a small umbilical hernia containing fat,
trace pelvic ascites, and bladder wall thickening.

(Tr. 634)

Garcia required morphine to manage his pain, but he remained
stable in the Emergency Room.

(Tr. 634) Dr. Kanagy diagnosed

Garcia with acute colitis and thrombocytopenia and admitted him
for twenty-three hour care under Dr. Bernardo Lucena’s
supervision.

(Tr. 634)

On September 4, 2010, Garcia had a routine gallbladder
ultrasound performed.

(Tr. 639) The ultrasound showed a few

small polyps on the gallbladder, that the walls of the
10

gallbladder were slightly thicker than normal, and a trace amount
of pericholecystic edema.

(Tr. 639) The attending physician

suggested that a HIDA scan would provide useful information, but
found that the sonographic findings were concerning for low grade
cholecystitis.

(Tr. 639) However, Dr. Lucena stated that Garcia

could not tolerate the necessary pain medications in preparation
for a HIDA scan.

(Tr. 642) Also, Dr. Lucena determined that

Garcia’s abdominal pain was secondary to the colitis and possibly
the presence of a cholecystitis, his liver cirrhosis was
secondary to alcoholism, and his thrombocytopenia was secondary
to his portal hypertension/splenomegaly.

(Tr. 643) Dr. Lucena

noted that he believed Garcia also had lupus erythematosus.

(Tr.

643)
On September 5, 2010, Dr. Peter G. Mavrelis described Garcia
as a “chronically ill 40-year-old gentleman.”

(Tr.

640) Dr.

Mavrelis noted that he would consider performing a colonoscopy on
Garcia in a week once his platelet count had improved.

(Tr. 640)

Garcia was discharged on September 7, 2010 and advised to follow
up.

(Tr. 628-629)
In a letter dated September 10, 2010, Dr. Lucena wrote that

Garcia “is considered disabled and unable to perform any
functions.”

(Tr. 524) Further, Dr. Lucena explained that Garcia

was physically limited due to his pain and fatigue.

(Tr. 524)

Dr. Lucena also mentioned that Garcia was unable to stand for
11

more than thirty minutes and was unable to lift anything over
twenty pounds due to his hernia.

(Tr. 524) Additionally, Dr.

Lucena described Garcia’s condition as “chronic and terminal” and
noted that Garcia would be “unable to return to any form of
employment.”

(Tr. 524)

On September 14, 2010, Dr. Nehme stated that Garcia had
remained abstinent from alcohol intake since his last visit in
June.

(Tr. 713) Dr. Nehme further stated that his plan was to

refer Garcia to a medical center to initiate a potential
transplant work-up so long as Garcia abstained from alcohol
consumption but that the surgery would be associated with high
risk of liver decompensation.

(Tr. 713) Dr. Nehme also planned

on having a surgical evaluation at the medical center for
possible cholecystectomy and hernia repair.

(Tr. 713) On

September 20, 2010, Dr. Drasga recommended setting Garcia up with
an appointment at Indiana University Medical Center for a
possible evaluation of chronic liver disease after a follow up
appointment with Garcia.

(Tr. 720)

On September 21, 2010, B. Randal Horton, Psy.D. noted that
he had reviewed Garcia’s file and affirmed the assessment of
August 26, 2010, in which the Social Security Administration
denied Garcia benefits.

(Tr. 610) On September 22, 2010, Garcia

was seen at St. Clare Health Clinic before going to Indianapolis
for the medical center examination, and he was told to stop
12

taking all pain medications in preparation for the transplant
assessment.

(Tr. 619) On September 28, 2010, Garcia was seen by

Dr. Michael G. House at Clarian Health Indiana University
Hospital.

(Tr. 709) Dr. House decided to admit Garcia to do a

workup of his underlying liver disease and to determine the
etiology for his abdominal pain.

(Tr. 710) Dr. House mentioned

that Garcia suffered from severe pain which prevented him from
“having any sort of functional lifestyle.”

(Tr. 709) Dr. House

recommended that Garcia see Dr. Mehta from Hematology Services to
evaluate Garcia’s chronic thrombocytopenia.

(Tr. 710) Dr. House

ordered a CT scan of Garcia’s abdomen and pelvis.

(Tr. 710)

Garcia was discharged on October 2, 2010, with instructions to
continue previous medications.

(Tr. 728-729)

On November 2, 2010, Garcia returned to Dr. House for a
clinic visit due to increased pain associated with his hernia.
(Tr. 724) Dr. House determined that Garcia’s symptoms were
related to his reducible umbilical hernia.

(Tr. 724) After

explaining the potential major risks associated with performing a
surgery to Garcia, Dr. House obtained Garcia’s informed consent
and ordered Garcia to make arrangements for operations within
three weeks despite his cirrhosis and thrombocytopenia.

(Tr.

724)
On November 16, 2010, Dr. Nehme had a follow up appointment
with Garcia.

(Tr. 718) Dr. Nehme noted Garcia was scheduled to
13

have “IV IG infusions by hematology for his thrombocytopenia.”
(Tr.

718) Dr. Nehme also stated he would like to check Garcia’s

platelet levels and continue to evaluate his platelet levels
prior to surgery that was scheduled to take place in December at
IU Medical Center.

(Tr. 718)

On December 7, 2010, Dr. Lucena completed a Medical
Assessment of Ability to do Work-Related Activities form on
behalf of Garcia.

(Tr. 613-615) Dr. Lucena stated that Garcia’s

ability to lift or carry was limited by his condition and that
Garcia could carry no more than ten pounds for up to one-third of
a regular work day and no more than five pounds for up to twothirds of a regular work day.

(Tr. 613) Dr. Lucena further

stated that Garcia’s ability to stand was limited by his
condition and that Garcia was incapable of standing and walking
for more than thirty minutes in an eight hour work day.

(Tr.

613) However, Dr. Lucena also stated Garcia’s ability to sit was
not limited by his condition.

(Tr. 614) In Dr. Lucena’s opinion,

Garcia was unable to perform postural activities including
climbing, stooping, crouching, kneeling, crawling, bending, or
twisting, and he was unable to balance for more than one-third of
an eight hour work day.

(Tr. 614) Further, Dr. Lucena explained

that several of Garcia’s physical functions were affected by his
constant pain and weakness, including reaching, handling,
feeling, pushing, pulling, and speaking.
14

(Tr. 614) Additionally,

Dr. Lucena stated Garcia’s condition imposed limitations on
exposure to various environmental restrictions including heights,
moving machinery, temperature extremes, chemicals, dust, fumes,
and humidity.

(Tr. 614) Also, Dr. Lucena noted that Garcia

required at least one hour of rest every thirty minutes to an
hour during an eight hour work day.

(Tr. 615)

On January 10, 2011, Garcia received a laparoscopic
cholecystectomy as well as an umbilical hernia repair.

(Tr. 728)

Garcia’s Discharge Summary regarding this surgery stated Garcia
“tolerated the procedure well.

There were no immediate

postoperative complications . . . However; his hospitalization
was prolonged to postoperative day two.”

(Tr. 728) Garcia was

discharged on postoperative day two, or January 14, 2011, with
stable vital signs and well-controlled pain.

(Tr. 728)

On June 12, 2011, Garcia was transferred to IU Medical
Center from OSH where he complained of chest pain, dyspnea, and
fever.

(Tr. 781) Before arriving at IU Medical Center, Garcia

had received a chest tube for drainage of about 2,490 L.

(Tr.

781) Garcia complained of abdominal pain, constipation, and pain
at the chest tube site when he arrived at IU Medical Center.
(Tr. 781) On June 13, 2011, Garcia’s treating physician noted
Garcia might have multifocal community acquired pneumonia.
784)

15

(Tr.

At the hearing before the ALJ, Garcia testified that he was
forty-one years old and that he weighed about one hundred and
eighty-six pounds, which he said was a “bit above [his] normal”
weight.

(Tr. 44) Garcia also testified that he lived with his

fiancé, April Warner, and her 11-year-old son, Matthew, in a
rental house.

(Tr. 46) Garcia recently received his driving

license back after it was suspended for over eleven years.

(Tr.

46) Garcia explained that he did not drive too often, unless he
took his fiancé to work or had to go to a doctor appointment.
(Tr. 46)
Garcia testified that he worked for Scientific Window as a
window installer from about 1998 until about 2002.

(Tr. 52)

During the time he was employed at Long John Silvers, Garcia was
incarcerated for DUI charges.

(Tr. 53) Garcia explained that he

had been incarcerated about fifteen times for minor alcohol
related offenses.

(Tr. 53) Garcia testified that in 2006 he

worked full time on a manufacturing line for Reader Automotive,
North America.

(Tr. 51) Garcia further testified that he

received his last paycheck from Thomas Construction in the spring
of 2008 and that he was currently not working.

(Tr. 47) While

working for Thomas Construction, Garcia earned about $3,000 for
three months of work including roofing, siding, and carpentry.
(Tr. 48) Garcia further testified that he was missing about two
or three days out of the week while he was working at Thomas
16

Construction due to stomach, knee, elbows, and other extremity
pain.

(Tr. 48, 56) Furthermore, Garcia testified that Thomas

Construction “folded” in 2008.

(Tr. 54) Garcia explained that

even if the company had not “folded,” he likely would not have
continued to work for Thomas Construction because he did not
think that he was making enough money.

(Tr. 54) Garcia said that

after he received his last paycheck from Thomas Construction he
had a few odd jobs, such as mowing lawns, but he was not
receiving any income or workers’ compensation at the time of the
hearing.

(Tr. 48)

Garcia further testified that his condition had worsened
since 2008.

(Tr. 57, 68) Garcia explained that he has had

“trouble getting out of bed from everything to taking a shower to
dressing [himself], to making something to eat.

[Even] [t]ying

[his] shoes . . .” (Tr. 57) Garcia explained that the constant
stomach pain he experienced prevented him from comfortably
walking, standing, sitting, and changing positions.

(Tr. 57, 67)

Garcia further explained that he was experiencing an intense
combination of severe burns, stabs, aches, and pains in his
stomach.

(Tr. 58, 66) Garcia testified that after about an hour

of sitting, he had to stretch his legs for a couple of minutes
because he became unbearably uncomfortable. (Tr. 60) Garcia
explained that being able to sit all day and stretch every hour
or so would be a good day for him, and that five out of seven
17

days a week, he typically needed to lie down in order to relieve
any of his symptoms.

(Tr. 61) Garcia said that his doctors had

instructed him to lie down and that lying down did not fully
relieve his symptoms.

(Tr. 61) Garcia also testified that he

could walk only about thirty yards without becoming breathless.
(Tr. 62)
Garcia testified that he had not consumed any alcohol since
June 18, 2010, but that he was drinking alcohol during the time
that he was working.

(Tr. 48) While working for Scientific

Window, Garcia did not drink on the job, but he considered
himself to be a heavy drinker during that time.

(Tr. 53) Garcia

explained that while he was working for Reader Automotive, he did
not drink as often during the day because he spent more time
around his bosses than in his other jobs.

(Tr. 51) Garcia said

that during the time that he worked for Thomas Construction, he
was drinking about twelve beers per day and about a couple of
shots of whiskey per week.

(Tr. 49) Garcia explained that he

used to smoke marijuana occasionally but that he did not smoke
marijuana anymore.

(Tr. 50) Further, Garcia said that he quit

drinking after a visit to the hospital on June 18, 2010, and that
he did not go through any treatments or programs to assist him in
quitting alcohol.

(Tr. 50) Once Garcia had quit drinking for a

six month period, he likely would be eligible to be placed on a
transplant list.

(Tr. 70)
18

Additionally, Garcia testified that he typically left his
house only to get the mail but that he occasionally would go see
a movie or shop for groceries.

(Tr. 63) Garcia explained that he

rarely left the house to see friends and family but that his
friends, family, and ex-coworkers would visit him at his home.
(Tr. 63) Garcia further testified that he no longer could play
softball in his old leagues, did not do any chores around the
house, and spent most of his time lying down, watching
television, and watching over Matthew.

(Tr. 64) On a typical

day, Garcia would get up around noon, take a shower, make himself
something to eat, watch television, and then lay around on a
couch the rest of the day.

(Tr. 64)

April Warner testified at the hearing as a witness.

(Tr.

70) Warner stated that she had been living with Garcia for ten
years, that Garcia had stopped drinking, and that she could tell
Garcia was in pain because he was in bed a lot more and was far
less active.

(Tr. 71) Warner further stated that Garcia had

awakened in the middle of the night moaning and crying from pain
for about five or six months.

(Tr. 71)

VE Leonard Fisher, Ph.D., was the last to testify.

(Tr. 72)

The ALJ asked the VE to identify the exertional and skill level
of Garcia’s past work performed within the last fifteen years as
actually and generally performed.

(Tr. 77) The VE responded that

Garcia was a product assembler, which was semiskilled according
19

to the DOT and a medium exertional level; a roofer, which was
skilled according to the DOT and a medium exertional level; and a
window installer, which was skilled according to the DOT and a
medium to heavy exertional level.

(Tr. 77)

The ALJ posed a series of hypothetical questions.

(Tr. 78-

83) First, the ALJ asked the VE about the existence of jobs at a
light level for a person of Garcia’s age, education, and work
experience who was able to lift a maximum of twenty pounds
occasionally and ten pounds more frequently; could stand and walk
six hours out of an eight hour day; had postural limitations such
that he never should climb ladders, ropes, or scaffolds; was
unable to crawl; and, due to the individual’s pain and
medication, could not operate dangerous moving machinery, was to
avoid all work at unprotected heights, or where he might be
exposed to unguarded dangerous machinery.

(Tr. 78) The VE

responded that an individual with those limitations could not
perform Garcia’s past assembly work as generally performed, and
there was no past relevant work to the first hypothetical.

(Tr.

79) At the unskilled level, the individual could be an
electronics worker (9,600 Indiana jobs and 200,000 national
jobs), an inspector (20,000 Indiana jobs and 400,000 national
jobs), or a parking lot attendant (5,300 Northwest
Indiana/Chicago jobs and 100,000 national jobs).

20

(Tr. 79)

The ALJ’s second hypothetical assumed the individual
described in the first hypothetical situation was limited to a
sedentary level work.

(Tr. 79) The ALJ asked whether that

individual would be able to perform any jobs subject to those
postural and environmental limitations.

(Tr. 79) The VE

responded that an individual with those limitations would be able
to do work including, but not limited to, that of a surveillance
monitor (1,500 Chicago jobs and 81,000 national jobs), food and
beverage order clerk (8,000 Northwest Indiana/Chicago jobs and
200,000 national jobs), or a charge account clerk (5,700
Northwest Indiana/Chicago jobs and 200,000 national jobs). (Tr.
80)
The third hypothetical the ALJ posed assumed all of the same
factors and limitations in as the last hypothetical with
additional postural limitations, such as the individual would be
unable to perform more than occasional stooping, kneeling, or
crouching.

(Tr. 80) The VE responded that these additional

postural limitations would not preclude the individual’s
performance of the jobs that were just identified. (Tr. 80) The
ALJ also asked whether those jobs described in this hypothetical
would allow an individual to alternate his seated position
briefly at one hour intervals.
affirmative.

(Tr. 81) The VE responded in the

(Tr. 81)

21

The fourth hypothetical the ALJ posed assumed all of the
same factors and limitations in the last hypothetical with
additional mental limitations due to any medication and pain.
(Tr. 80) Further, the ALJ added that the individual would be
limited to simple, routine, repetitive tasks that involved no
more than occasional decision making, no more than occasional
changes in the work setting, and only the occasional exercise of
judgment on the job.

(Tr. 80) The VE responded that the

individual would not be able to perform any jobs, even simple
ones.

(Tr. 80) The ALJ then changed the hypothetical to describe

only simple, routine, and repetitive tasks and questioned whether
that would permit the performance of the jobs previously
identified.

(Tr. 82) The VE responded in the affirmative.

(Tr.

82)
Finally, the ALJ asked how many unexcused absences or
unscheduled absences an employer generally would allow per month.
(Tr. 82) The VE responded that based on factors such as loyalty,
competency, and other skills, if an individual missed more than
one work day per month, he would have difficulty sustaining
competitive employment.

(Tr. 82)

In his decision, the ALJ discussed the five-step sequential
evaluation process for determining whether an individual was
disabled.

(Tr. 17-27) In step one, the ALJ found that Garcia had

not engaged in substantial gainful activity since June 1, 2008,
22

the alleged onset date.

(Tr. 19) At step two, the ALJ found that

Garcia had the following severe impairments:

cirrhosis of the

liver, thrombocytopenia (low platelet), hepatitis C, colitis, and
history of alcohol dependence.

(Tr. 20) At step three, the ALJ

found that Garcia did not have an impairment or combination of
impairments that met or medically equaled one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1.

(Tr. 20)

In particular, Garcia’s physical impairments did not meet the
requirements of listing 5.05, 5.06, or 7.06.

(Tr. 20-21) With

regard to Garcia’s medical impairments, the ALJ found that
Garcia’s daily living activities were only mildly restricted, he
only had mild difficulties in social functioning and with regard
to concentration, persistence or pace, and he did not suffer any
episodes of decompensation.

(Tr. 22) Thus, Garcia’s mental

impairment did not meet or medically equal the criteria of
listing 12.09, paragraph B, as Garcia’s mental impairment does
not cause at least two “marked” limitations or one “marked”
limitation and “repeated” episodes of decompensation.

(Tr. 21-

22)
In determining Garcia’s RFC, the ALJ stated that he
considered the entire record and found that Garcia had the
residual functional capacity to perform sedentary work except:
“claimant is unable to climb ladders, ropes or scaffolds, crawl,
drive moving vehicles, operate dangerous machinery or work around
23

unprotected heights.”

(Tr. 22) The ALJ further stated that

Garcia was able to stoop, kneel, and crouch occasionally.

(Tr.

22) The ALJ also explained that Garcia needs to be permitted to
change positions from sitting or standing every hour, and was
limited to simple, routine, and repetitive tasks.

(Tr. 22)

In reaching this determination, the ALJ first discussed
Garcia’s symptoms and whether those symptoms reasonably could be
accepted as consistent with medical evidence, opinion evidence,
and other evidence presented.

(Tr. 22) The ALJ followed a two-

step process in which he (1) determined whether there was an
underlying medically determinable physical or mental impairment,
and (2) evaluated the intensity, persistence, and limiting
effects of Garcia’s symptoms to determine the extent to which
they limit the claimant’s functioning.

(Tr. 23) Garcia alleged a

disability in his initial application due to cirrhosis of the
liver, lupus, and hepatitis C.

(Tr. 23) Garcia testified at the

hearing that his impairments caused him to suffer from severe
chronic pain above his colon, which he rated as an eight on a ten
point scale, and also prevented him from any activities involving
bending, stooping, or performing simple daily activities.

(Tr.

23) Garcia further testified that he suffered pain in his knees
and elbows, which was not evaluated by a doctor; he had quit
drinking in June of 2010, but used to drink about a twelve-pack
of beer per day and two or three shots of whiskey per week; he
24

could sit for an hour before getting agitated; he could stand for
about an hour; he could lift about a gallon of milk; and he could
walk about thirty yards before becoming breathless.

(Tr. 23) The

ALJ determined that Garcia’s medically determinable impairments
reasonably could be expected to cause the alleged symptoms.
However, the ALJ found that Garcia’s statements concerning the
intensity, persistence, and limiting effects of these symptoms
were not credible, as they were inconsistent with the residual
functional capacity assessment.

(Tr. 23)

The ALJ considered the fact that the record indicated that
Garcia was not receiving medical care for his impairments at the
time of the alleged onset date in June of 2008.

(Tr. 23) The

medical evidence began on June 18, 2010, when Garcia went to St.
Anthony’s Hospital due to epigastric abdominal pain, upper
quadrant abdominal pain, and nausea.

(Tr. 23) At that hospital

visit, Garcia admitted he had a history of drinking excessive
amounts of alcohol on a daily basis and that he consumed alcohol
earlier in the day.

(Tr. 23) On June 22, 2010, he was discharged

from the hospital with diagnoses of end-stage liver disease
secondary to alcoholism, severe thrombocytopenia without evidence
of bleeding secondary to end-stage liver disease, biliary
dyskinesis, hepatitis C, and a history of chronic alcoholism.
(Tr. 23) Upon being discharged, Garcia was told to stop drinking
alcohol and smoking tobacco, especially because he would need to
25

stop drinking for six months prior to any evaluation by a
transplant center.

(Tr. 23)

In September of 2010, the record indicated that Garcia’s
lymph nodes were biopsied at Indiana University Medical Center
due to his chronic abdominal pain.

(Tr. 23) The biopsies failed

to detect any sign of lymphoma or cancer.

(Tr. 23-24) A CT scan

of Garcia’s abdomen revealed a distended gallbladder with minimal
pericholecyslic fluid, and January 10, 2011 medical records
received after the hearing indicated that Garcia underwent a
laparoscopic cholecystectomy and an open umbilical repair with
mesh at St. Clare Clinic.

(Tr. 24) Garcia was discharged on

January 14, 2011 in stable condition with prescriptions for pain
medications.

(Tr. 24) The ALJ recognized that the record

indicated that Garcia was diagnosed with colitis after a CT scan
was performed in September of 2010 at St. Anthony’s Hospital.
(Tr. 24)
The ALJ stated that he did not fully credit Garcia’s
allegations.

(Tr. 24) The ALJ explained that he found the record

to contain no evidence of disability as of the alleged onset date
in June of 2008.

(Tr. 24) The ALJ further explained that he

found the medical evidence to indicate that the claimant
continued to drink heavily throughout 2010 and sought treatment
in June of 2010, two years after the onset date.

(Tr. 24) The

ALJ found that Garcia’s drinking was a factor for at least a good
26

part of his alleged period of disability.

(Tr. 24) Garcia

further testified that he did not stop working in 2008 because of
his disability, but because the company went out of business.
(Tr. 24) The ALJ determined that the record indicated that Garcia
had admitted he was not disabled as of the alleged date of onset.
(Tr. 24) Further, the ALJ found that the evidence indicated
Garcia worked for cash doing part-time work after August of 2008,
Garcia was lifting and carrying heavy things while working
construction as recently as June of 2010, and Garcia considered
himself capable of attempting demanding tasks.

(Tr. 24) Based on

this evidence, the ALJ determined Garcia could perform
significantly less demanding work consistent with the earlier
assessment of residual functional capacity.

(Tr. 24)

The ALJ went on to discuss Garcia’s testimony regarding his
physical capabilities.

(Tr. 24) At the hearing, Garcia testified

that he could sit and stand for an hour, was able to lift a
gallon of milk, and could drive about thirty-five to forty
minutes.

(Tr. 24) In August of 2010, Garcia’s primary doctor

reported Garcia had no ascites in his abdomen. (Tr. 24) Garcia
further testified that he spent the majority of the day lying
down and stretching, but the record did not indicate there was
medical evidence to support Garcia’s need to lie down on a
regular basis.

(Tr. 24) Based on this testimony and evidence,

the ALJ rejected the allegations that Garcia needed to lie down
27

and stretch for the majority of the day.

(Tr. 24) The ALJ

further determined, based on the evidence and testimony
presented, that Garcia exaggerated the severity of his pain
because the record did not document that he sought medical
attention and management as would reasonably be expected of a
person experiencing pain at an eight out of a ten point scale.
(Tr. 24) Although Garcia’s testimony and the medical evidence
indicated that Garcia’s medications caused fatigue, the ALJ
explained his limitation on Garcia to simple, routine, repetitive
tasks accommodated for the effect his medication had on him
throughout the day.

(Tr. 25)

The ALJ next considered the opinion evidence on record.
(Tr. 25) First, the ALJ discussed the medical consultant, Dr.
Robert Bond’s, opinion that Garcia’s impairments were not severe.
(Tr. 25) The ALJ gave Dr. Bond’s opinion little weight as the
updated medical records from St. Anthony’s Hospital, St. Clare
Clinic, IU Medical Center, and Dr. House all indicated that
Garcia suffered from cirrhosis of the liver, thrombocytopenia,
hepatitis C, and colitis.

(Tr. 25) Next, the ALJ discussed

Garcia’s physical consultative examination on August 10, 2010
with Dr. Rahmany.

(Tr. 25) Dr. Rahmany opined that Garcia was

unable to do functional activity and could not do any labor work
due to his cirrhosis and hepatitis C.

(Tr. 25) The ALJ gave Dr.

Rahmany’s opinion little weight because the ALJ determined it was
28

inconsistent with the record as a whole.

(Tr. 25) The ALJ

explained that Dr. Rahmany found that Garcia had no abdominal
pain, nausea, vomiting, or hematemesis; had no swelling,
stiffness, or effusion in the upper or lower extremities; had
normal strength in all muscle groups; was able to walk with a
stead gait; could stoop and squat without difficulty; could walk
heel to toe and tandem walk without difficulty; and was able to
stand from a sitting position without difficulty.

The ALJ

believed that these findings were inconsistent with a finding of
disability.

(Tr. 25) Additionally, the ALJ noted the finding of

a disability was a matter reserved to the Commissioner.

(Tr. 25)

Next, the ALJ discussed Garcia’s treating physician, Dr.
Lucena’s, September 10, 2010 opinion that Garcia was unable to
stand for more than thirty minutes at a time or lift anything
over twenty pounds.

(Tr. 25) The ALJ stated that he considered

the administrative findings of fact made by the treating
physician, relied upon them in determining Garcia’s residual
functional capacity, and gave considerable weight to Dr. Lucena’s
opinions regarding Garcia’s functional limitation as they were
consistent with a limited range of sedentary work and were
supported by the objective evidence.

(Tr. 25) However, the ALJ

gave no weight to Dr. Lucena’s opinion that Garcia was considered
disabled and unable to perform any functions because the finding

29

of disability was a matter reserved to the Commissioner.

(Tr.

25)
Next, the ALJ discussed the Medical Assessment of Ability to
do Work-Related Activities completed by Dr. Lucena on December 7,
2010 regarding Garcia.

(Tr. 25) In this statement, Dr. Lucena

opined that Garcia was able to carry five pounds frequently and
ten pounds occasionally, stand for less than one-half hour in an
eight hour work day, and stand and walk without interruption for
less than one-half hour.

(Tr. 25) Additionally, Dr. Lucena

stated that Garcia was unable to climb, balance, stoop, crouch,
kneel, crawl, bend, or twist.

(Tr. 25) Further, Dr. Lucina

opined that Garcia was able to balance occasionally, but that he
had an impaired ability to reach, handle, feel, push/pull, see,
and speak.

(Tr. 25)

Dr. Lucena further found that Garcia should

be restricted in his exposure to heights, moving machinery,
extreme temperatures, chemicals, dust, fumes, and humidity and
that he would need one thirty to sixty minute period of rest
during an eight hour period.

(Tr. 25) The ALJ rejected these

opinions and gave them little weight because he found they were
inconsistent with the record as a whole.

(Tr. 25) The ALJ

explained that Dr. Lucena did not explain why Garcia’s
restrictions were far greater in his December 7, 2010 evaluation
as compared to his September 10, 2010 assessment.

(Tr. 25-26)

Additionally, Dr. Lucena did not provide any findings to support
30

his opinions.

(Tr. 26) Furthermore, Dr. Lucena offered no

evidence that these limitations dated back to the alleged onset
date or that they had lasted for at least twelve months.

(Tr.

26)
The ALJ went on to discuss April Warner’s testimony.

(Tr.

26) Warner testified that Garcia stayed in bed a lot during the
day and woke up in the middle of the night in tears due to pain.
(Tr. 26) Warner also completed a Third Party Function Report on
July 6, 2010 in which she alleged Garcia had difficulty
performing daily living activities such as mowing the lawn,
lifting heavy objects, or playing sports due to abdominal pain.
(Tr. 26) The ALJ gave Warner’s opinions some weight, but he
disregarded Warner’s statements regarding Garcia’s functional
limitations that conflicted with the above residual functional
capacity.

(Tr. 26) Thus, considering the totality of the

medical, testimonial, and opinion evidence, the ALJ concluded
that Garcia had the residual functional capacity to perform at
the sedentary level due to cirrhosis of the liver.

(Tr. 26) The

ALJ further found Garcia was unable to climb ladders, ropes, or
scaffolds; crawl; drive moving vehicles; operate dangerous
machinery; or work at unprotected heights.

(Tr. 26)

Additionally, the ALJ determined Garcia could stoop, kneel, and
crouch occasionally; needed to change positions from sitting or
standing every hour due to the cirrhosis and colitis; and was
31

limited to simple, routine, and repetitive tasks due to fatigue
caused by pain medications and alcohol dependence.

(Tr. 26)

With the RFC determined, at step four the ALJ found that
Garcia could not perform his past relevant work.

(Tr. 26) At

step five, the ALJ found that considering Garcia’s age,
education, work experience, and RFC, there were a significant
number of jobs available in the national economy that he could
perform, including surveillance systems monitor (1,500 jobs
regionally and 81,000 jobs nationally), order clerk (8,000+ jobs
regionally and 200,000+ jobs nationally), and charge account
clerk (5,700+ jobs regionally and 200,000+ jobs nationally).
(Tr. 27) The vocational expert defined the region as metropolitan
Chicago area and Northwest Indiana.

(Tr. 27)

Discussion
The standard for judicial review of an ALJ’s finding that a
claimant is not disabled within the meaning of the Social
Security Act is limited to a determination of whether those
findings are supported by substantial evidence.

42 U.S.C. §

405(g)(2006) (“The findings of the Commissioner of Social
Security, as to any fact, if supported by substantial evidence,
shall be conclusive.”); Schmidt v. Barnhart, 395 F.3d 737, 744
(7th Cir. 2005); Lopez ex rel Lopez v. Barnhart, 336 F.3d 535,
539 (7th Cir. 2003).

Substantial evidence has been defined as

“such relevant evidence as a reasonable mind might accept to
32

support such a conclusion.”

Richardson v. Perales, 402 U.S. 389,

401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 852 (1971) (quoting
Consolidated Edison Company v. NLRB, 305 U.S. 197, 229, 59 S.Ct.
206, 217, 83 L.Ed.2d 140 (1938)).

See also Jens v. Barnhart, 347

F.3d 209, 212 (7th Cir. 2003); Sims v. Barnhart, 309 F.3d 424,
428 (7th Cir. 2002).

An ALJ’s decision must be affirmed if the

findings are supported by substantial evidence and if there have
been no errors of law.

Roddy v. Astrue, 2013 WL 197924, No. 12-

1682 (7th Cir. 2013); Rice v. Barnhart, 384 F.3d 363, 368-369
(7th Cir. 2004); Scott v. Barnhart, 384 F.3d 363, 368-69 (7th Cir.
2004); Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir. 2002).
However, “the decision cannot stand if it lacks evidentiary
support or an adequate discussion of the issues.”

Lopez, 336

F.3d at 539.
Disability insurance benefits are available only to those
individuals who can establish “disability” under the terms of the
Social Security Act.

The claimant must show that he is unable 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 twelve
months.

42 U.S.C. § 423(d)(1)(A).

The Social Security regulations enumerate the five-step
sequential evaluation to be followed when determining whether a
claimant has met the burden of establishing disability.
33

20

C.F.R. §§ 404.1520, 416.920.

The ALJ first considers whether the

claimant is presently employed or “engaged in substantial gainful
activity.”

20 C.F.R. §§ 404.1520(b), 416.920(b).

If he is, the

claimant is not disabled and the evaluation process is over. If
he is not, the ALJ next addresses whether the claimant has a
severe impairment or combination of impairments which
“significantly limits . . . physical or mental ability to do
basic work activities.”

20 C.F.R. §§ 404.1520(c), 416.920(c).

Third, the ALJ determines whether that severe impairment meets
any of the impairments listed in the regulations.
401, pt. 404, subpt. P, app. 1.

20 C.F.R. §

If it does, then the impairment

is acknowledged by the Commissioner to be conclusively disabling.
However, if the impairment does not so limit the claimant’s
remaining capabilities, the ALJ reviews the claimant’s “residual
functional capacity’ (RFC) and the physical and mental demands of
his past work.

If, at this fourth step, the claimant can perform

his past relevant work, he will be found not disabled.
§§ 404.1520(e), 416.920(e).

20 C.F.R.

However, if the claimant shows that

his impairment is so severe that he is unable to engage in his
past relevant work, then the burden shifts to the Commissioner to
establish that the claimant, in light of his age, education, job
experience and functional capacity to work, is capable of
performing other work and that such work experience and
functional capacity to work, is capable of performing other work
34

and that such work exists in the national economy.

42 U.S.C. §

423(d)(2); 20 C.F.R. §§ 404.1520(f), 416.920(f).
Garcia raises three challenges to the ALJ’s denial of
disability benefits.

First, Garcia argues that the ALJ made an

erroneous RFC determination because he did not give his treating
physician’s opinions great weight in the RFC determination, nor
did he properly assess the opinion of the individual consultative
examiner and other medical evidence of record.

Next, Garcia

argues that the ALJ’s finding that Garcia, in light of his age,
education, job experience and functional capacity to work, was
capable of performing other work, and that such work existed in
the national economy, was erroneous.

Finally, Garcia argues that

the ALJ’s finding that Garcia was not credible was improper.
SSR 96-8p explains how an ALJ should assess a claimant’s RFC
at steps four and five of the sequential evaluation.

In a

section entitled, “Narrative Discussion Requirements,” SSR 96-8p
specifically spells out what is needed in the ALJ’s RFC analysis.
This section of the Ruling provides:
The RFC assessment must include a narrative discussion
describing how the evidence supports each conclusion,
citing
specific
medical
facts
(e.g.,
laboratory
findings)
and
nonmedical
evidence
(e.g.,
daily
activities, observations).
In assessing RFC, the
adjudicator must discuss the individual’s ability to
perform sustained work activities in an ordinary work
setting on a regular and continuing basis (i.e., 8
hours a day, for 5 days a week, or an equivalent work
schedule), and describe the maximum amount of each
work-related activity the individual can perform based
35

on the evidence available in the case record.
The
adjudicator must also explain how any material
inconsistencies or ambiguities in the evidence in the
case record were considered and resolved.
SSR 96-8p (footnote omitted).

Thus, as explained in this section

of the Ruling, there is a difference between what the ALJ must
contemplate and what he must articulate in his written decision.
See Morphew v. Apfel, 2000 WL 682661 at *3 (S.D. Ind. Feb. 15,
2000) (“SSR 96-8p does not require an ALJ to discuss all of a
claimant’s abilities on a function-by-function basis.

Rather, an

ALJ must explain how the evidence supports his or her conclusions
about the claimant’s limitations and must discuss the claimant’s
ability to perform sustained work activities.”).
Garcia argues that the ALJ made an erroneous RFC
determination because he did not grant enough weight to his
treating physician’s testimony, the opinion evidence of the
independent consultant examiners, and other supporting medical
evidence.

Garcia specifically directs the court to consider the

open letter written by treating physician Dr. Lucena that
addressed Garcia’s ability to work, the Medical Assessment of
Ability to do Work-Related Activities Form completed by Dr.
Lucena regarding Garcia, Dr. Durak’s report that assigned Garcia
a GAF score of 55, and Dr. Rahmany’s report.

Garcia argues that

the ALJ improperly “cherry-picked” parts of the various

36

physicians’ notes and medical testimony to support his contention
that Garcia was able to perform sedentary work.
A treating source’s opinion is entitled to controlling
weight if the “opinion on the issue(s) of the nature and severity
of [the claimant’s] impairment(s) is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence” in the
record.

20 C.F.R. § 404.1527(d)(2); See also Schmidt v. Astrue,

496 F.3d 833, 842 (7th Cir. 2007); Gudgell v. Barnhart, 345 F.3d
467, 470 (7th Cir. 2003).

The ALJ must “minimally articulate his

reasons for crediting or rejecting evidence of disability.”
Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir. 2000) (quoting
Scivally v. Sullivan, 966 F.2d 1070, 1076 (7th Cir. 1992); See
also 20 C.F.R. § 404.1527(d)(2) (“We will always give good
reasons in our notice of determination or decision for the weight
we give your treating source’s opinion.”).
Internal inconsistencies in a treating physician’s opinion
may provide a good reason to deny it controlling weight.
C.F.R. § 404.1527(c)(2); Clifford, 227 F.3d at 871.

20

Furthermore,

controlling weight need not be given when a physician’s opinions
are inconsistent with his treatment notes or are contradicted by
substantial evidence in the record, including the claimant’s own
testimony.

Schmidt, 496 F.3d at 842 (“An ALJ thus may discount a

treating physician’s medical opinion if the opinion is
37

inconsistent with the opinion of a consulting physician or when
the treating physician’s opinion is internally inconsistent, as
long as he minimally articulates his reasons for editing or
rejecting evidence of disability.); see e.g. Latkowski v.
Barnhart, 93 Fed. Appx. 963, 970-71 (7th Cir. 2004); Jacoby v.
Barnhart, 93 Fed. Appx. 939, 942 (7th Cir. 2004).

Ultimately,

the weight accorded a treating physician’s opinion must balance
all the circumstances, with recognition that, while a treating
physician “has spent more time with the claimant,” the treating
physician may also “bend over backwards to assist a patient in
obtaining benefits . . . [and] is often not a specialist in the
patient’s ailments, as the other physicians who give evidence in
a disability case usually are.”

Hofslien v. Barnhart, 439 F.3d

375, 377 (7th Cir. 2006) (internal citations omitted).
In his opinion, the ALJ stated that he gave considerable
weight to the September 10, 2010 opinion letter prepared by Dr.
Lucena because the findings were consistent with the record as a
whole and supported by objective medical evidence.

The ALJ

disregarded one portion of Dr. Lucena’s letter, which stated that
Garcia was disabled and unable to perform any function.

The ALJ

explained that he disregarded this statement because it
constituted a disability finding.

An opinion that a claimant is

disabled need not be considered by the ALJ because disability is
a determination reserved for the Commissioner.
38

20 C.F.R.

404.1527(d)(1). Therefore, the ALJ did not err in disregarding
this statement.
The letter also stated that Garcia should not lift more than
20 pounds and could stand for no more than thirty minutes at a
time.

Dr. Lucena stated that he based his opinion on Garcia’s

chronic pain and fatigue.

However, this opinion does not

conflict with the ALJ’s finding.

The ALJ limited Garcia to

sedentary work, which involves lifting no more than 10 pounds at
a time and involves sitting.

This is consistent with Dr.

Lucena’s restrictions.
Dr. Lucena also prepared a report two months later that
demanded greater restrictions.

Dr. Lucena decreased the amount

of weight Garcia could lift to no more than 10 pounds and
decreased the amount of time Garcia could stand from no more than
thirty minutes at a time to less than half an hour in a total
eight-hour day. Dr. Lucena left the spaces blank that asked for
the medical findings upon which his assessment was based.

Garcia

argues that the more restrictive limitations were a reflection of
his deteriorating health.
In addressing the discrepancies between the two opinions,
the ALJ explained that even if Garcia’s health deteriorated over
the two month period, Dr. Lucena did not provide any findings,
evidence, or explanation for his opinions contained in the
December report.

The ALJ need not rely on a treating source’s
39

opinion if it is not supported by medically acceptable clinical
and diagnostic techniques and is not consistent with other
substantial evidence of record. 20 C.F.R. § 404.1527(d)(2).

The

ALJ was unwilling to make the assumption that Garcia’s condition
deteriorated to such an extent and pointed to the lack of any
objective medical evidence to show that Garcia’s condition
deteriorated and demanded such restrictive limitations.

Absent

any supporting explanation or medical evidence, the ALJ did not
err by disregarding Dr. Lucena’s opinion.

Additionally, the ALJ

supported his decisions by explaining that Dr. Lucena’s letter
lacked information that would suggest that Garcia’s limitation
dated back to the alleged onset date or had lasted for at least
twelve months.

Together, the ALJ provided sufficient support for

rejecting Dr. Lucena’s opinions contained in the December
assessment.
Garcia next complains that the ALJ failed to discuss or
mention Dr. Durak’s Report, in which he gave Garcia a GAF Score
of 55, and this resulted in an erroneous RFC determination.

The

GAF scale measures a “clinician's judgment of the individual's
overall level of functioning.” Am. Psychiatric Ass'n, Diagnosis
and Statistical Manual of Mental Disorders, Fourth Edition, Text
Revision, 32, 34 (2000) (DSM IV–TR). The established procedures
require a mental health professional to assess an individual's
current level of symptom severity and current level of
40

functioning, and adopt the lower of the two scores as the final
score. Id. at 32–33. A GAF score ranging from 41–50 indicates
serious symptoms; scores ranging from 51–60 indicate moderate
symptoms; and scores ranging from 61–70 indicate mild symptoms.
Id.

GAF scores are “useful for planning treatment” and are

measures of both severity of symptoms and functional level. Id.
at 32-34.

Because the “final GAF rating always reflects the

worse of the two,” the score does not reflect the clinician's
opinion of functional capacity. “[N]owhere do the Social Security
regulations or case law require an ALJ to determine the extent of
an individual's disability based entirely on his GAF score.”
Wilkins v. Barnhart, 69 Fed.Appx. 775, 780 (7th Cir. 2003)
(citing Howard v. Comm'r of Soc. Sec., 276 F.3d 235, 241 (6th
Cir. 2002)).
Garcia was assigned a GAF score of 55, indicating moderate
limitations in social, occupational, or school functioning.
Garcia points to an unpublished opinion to support his argument
that the ALJ should have considered the GAF score of 55 because a
score below 51 would indicate a complete inability to keep a job.
Bartrom v. Apfel, 234 F.3d 1272, n.3 (7th Cir. 2000). In Bartrom,
the plaintiff was assigned a series of GAF scores that fell well
below 55, including scores of 30, 45, and 50.

The ALJ did not

resolve the discrepancies in the scores or explain why he
disregarded the low scores in favor of the high scores.
41

Here, no such conflict exists.

Garcia was assigned one GAF

score indicating moderate limitations.

At no point was his GAF

score low enough to suggest a complete inability to work, and
because of this Garcia has not shown that the GAF score conflicts
with the ALJ’s conclusion.

The ALJ only is required to provide a

substantial support for his conclusion and confront the evidence
that did not support his conclusion. See Jelinek v. Astrue, 662
F.3d 805, 811 (7th Cir. 2011); Kasarsky v. Barnhart, 335 F.3d
539, 543 (7th Cir. 2003); Brindisi v. Barnhart, 315 F.3d 783, 786
(7th Cir. 2003).
record.

The ALJ need not address all evidence of

Jelinek, 662 F.3d at 811.

Because the GAF score does

not conflict with his conclusion, the ALJ did not need to
confront this evidence.
Additionally, in making his RFC determination, the ALJ fully
discussed all of Garcia’s symptoms and indicated that he fully
considered all opinion evidence.

(Tr. 22-26) The ALJ supported

his findings by discussing Garcia’s medical history, explaining
that Garcia did not seek treatment until two years after the
alleged onset date, and by engaging in a detailed discussion of
the inconsistencies between Garcia's reported activities and
reported effects of his medical conditions.

(Tr. 22-26) Although

the ALJ did not specifically cite the language from Dr. Durak’s
medical report, the record reflects that he took these notes into
consideration.

Because the GAF score Dr. Durak assigned Garcia
42

was not inconsistent with his finding and would not control his
disability determination, the ALJ did not err in failing to
address the GAF score.
Finally, Garcia complains that the ALJ did not assign enough
weight to Dr. Rahmany’s opinion. Dr. Rahmany stated that Garcia
was could not perform functional activity or labor work.

The ALJ

again explained that this was a conclusory disability opinion
that was reserved for the Commissioner, and he went on to point
to the inconsistencies between Dr. Rahmany’s objective findings
and conclusion.

The ALJ explained that Dr. Rahmany noted that

during his examination Garcia had no abdominal pain, nausea,
vomiting, hematemesis, swelling, stiffness, or effusion in either
the upper or lower extremities.

(Tr. 25) Furthermore, the ALJ

explained that Dr. Rahmany noted that Garcia had normal strength
in all muscle groups, was capable of walking with a steady gait,
could stoop and squat without difficulty, could walk heel to toe
in tandem walk without difficulty, and was able to stand from a
sitting position without difficulty, which were all observations
that were inconsistent with a finding of disability.

(Tr. 25)

The ALJ pointed to contradictions between Dr. Rahmany’s findings,
his notes, and the record as a whole, and thus provided
sufficient support for his finding that Dr. Rahmany’s conclusions
were contradicted by substantial evidence in the record,

43

including Garcia’s own testimony regarding his physical
capabilities and symptoms.
Next, Garcia argues that the ALJ’s step five finding was
erroneous.

Specifically, Garcia directs the court to consider

whether the ALJ ignored the VE’s statements regarding an
individual’s employability who had Garcia’s limitations, and
whether the ALJ parsed and “cherry picked” through the record to
come to his conclusion.

Also, Garcia argues that the ALJ ignored

limitations incorporated into the hypothetical situations
presented to the VE and that the VE only testified to an
insignificant number of “1500 jobs” still remaining in the
economy that Garcia was able to perform.
In questioning the VE, the ALJ posed a series of
hypothetical questions pertaining to the working capacity of an
individual with the same or similar limitations as Garcia.

(Tr.

28-83) Garcia argues that the ALJ parsed through the record to
come to his conclusion by ignoring the VE’s statements that an
individual with Garcia’s limitations and need for extra breaks
and missed work days was not employable.

However, the ALJ

specifically asked the VE in his fourth hypothetical whether a
person with Garcia’s limitations who could perform only simple,
routine, and repetitive tasks was employable.

The VE responded

in the affirmative, indicating that a person with such functional
limitations and requirements was capable of performing more than
44

15,000 jobs regionally, and over 480,000 jobs nationally.
79-82).

(Tr.

Although the VE testified that a person who needed to

miss more than one day of work per month would have difficulty
sustaining competitive employment, the ALJ’s RFC determination
did not include a finding that Garcia’s limitations included
missing work on a regular basis.

(Tr. 82) In fact, in his RFC

determination the ALJ recognized that Garcia’s pain medications
and symptoms caused fatigue, but the ALJ explained that his
limitation for simple, routine, repetitive tasks was meant to
accommodate for the effect Garcia’s medications had on him
throughout the day.

Thus, the ALJ specifically included the

limitation involving simple, routine, repetitive tasks in his
hypothetical situations presented to the VE to ensure that a
significant number of jobs existed in which a person with
Garcia’s limitations and functional capacity could perform
without missing many days and requiring more frequent breaks
throughout the day than other employees.

The ALJ correctly found

that there were a significant number of jobs available in the
national and regional economy that Garcia could perform given his
age, education, work experience, and RFC.

(Tr. 27)

Garcia finally argues that the ALJ made an improper
credibility determination.

This court will sustain the ALJ’s

credibility determination unless it is “patently wrong” and not
supported by the record.

Schmidt v. Astrue, 496 F.3d 833, 843
45

(7th Cir. 2007); Prochaska v. Barnhart, 454 F.3d 731, 738 (7th
Cir. 2006) (“Only if the trier of fact grounds his credibility
findings in an observation or argument that is unreasonable or
unsupported . . . can the finding be reversed.”)

The ALJ’s

“unique position to observe a witness” entitles his opinion to
great deference.

Nelson v. Apfel, 131 F.3d 1228, 1237 (7th Cir.

1997); Allord v. Barnhart, 455 F.3d 818, 821 (7th Cir. 2006).
However, if the ALJ does not make explicit findings and does not
explain them “in a way that affords meaningful review,” the ALJ’s
credibility determination is not entitled to deference.
v. Barnhart, 290 F.3d 936, 942 (7th Cir. 2002).

Steele

Further, “when

such determinations rest on objective factors or fundamental
implausibilites rather than subjective considerations [such as a
claimant’s demeanor], appellate courts have greater freedom to
review the ALJ’s decision.”

Clifford v. Apfel, 227 F.3d 863, 872

(7th Cir. 2000).
The ALJ must determine a claimant’s credibility only after
considering all of the claimant’s “symptoms, including pain, and
the extent to which [the claimant’s] symptoms can reasonably be
accepted as consistent with the objective medical evidence and
other evidence.”

20 C.F.R. § 404.1529(a); Arnold v. Barnhart,

473 F.3d 816, 823 (7th Cir. 2007) (“subjective complaints need
not be accepted insofar as they clash with other, objective
medical evidence in the record.”); Scheck v. Barnhart, 357 F.3d
46

697, 703 (7th Cir. 2004).

If the claimant’s impairments

reasonably could produce the symptoms of which the claimant is
complaining, the ALJ must evaluate the intensity and persistence
of the claimant’s symptoms through consideration of the
claimant’s “medical history, the medical signs and laboratory
findings, and statements from [the claimant, the claimant’s]
treating or examining physician or psychologist, or other persons
about how [the claimant’s] symptoms affect [the claimant].” 20
C.F.R. § 404.1529(c); Schmidt v. Barnhart, 395 F.3d 737, 746-747
(7th Cir. 2005) (“These regulations and cases, taken together,
require an ALJ to articulate specific reasons for discounting a
claimant’s testimony as being less than credible, and preclude an
ALJ from merely ignoring the testimony or relying solely on a
conflict between the objective medical evidence and the
claimant’s testimony as a basis for a negative credibility
finding.”).
Although a claimant’s complaints of pain cannot be totally
unsupported by the medical evidence, the ALJ may not make a
credibility determination “solely on the basis of objective
medical evidence.”

SSR 96-7p, at *1.

See also Indoranto v.

Barnhart, 374 F.3d 470, 474 (7th Cir. 2004); Carradine v.
Barnhart, 360 F.3d 751, 754 (7th Cir. 2004) (“If pain is
disabling, the fact that its source is purely psychological does
not disentitle the applicant to benefits.”)
47

Rather, if the

[c]laimant indicates that pain is a significant factor
of his or he alleged inability to work, the ALJ must
obtain detailed descriptions of the claimant’s daily
activities by directing specific inquiries about the
pain and its effects to the claimant.
She must
investigate all avenues presented that relate to pain,
including claimant’s prior work record, information and
observations
by
treating
physicians,
examining
physicians, and third parties.
Factors that must be
considered include the nature and intensity of the
claimant’s pain, precipitation and aggravating factors,
dosage and effectiveness of any pain medications, other
treatment for relief of pain, functional restrictions,
and the claimant’s daily activities.
(internal
citations omitted).
Luna v. Shalala, 22 F.3d 687, 691 (7th Cir. 1994).
See also Zurawski v. Halter, 245 F.3d 881, 887-88 (7th Cir.
2001).
In addition, when the ALJ discounts the claimant’s
description of pain because it is inconsistent with the objective
medical evidence, he must make more than “a single, conclusory
statement . . . The determination or decision must contain
specific reasons for the finding on credibility, supported by the
evidence in the case record, and must be sufficiently specific to
make clear to the individual and to any subsequent reviewers the
weight the adjudicator gave to the individual’s statements and
the reasons for that weight.”

SSR 96-7p, at *2.

See Zurawski,

245 F.3d at 887; Diaz v. Chater, 55 F.3d 300, 307-08 (7th Cir.
1995) (finding that the ALJ must articulate, at some minimum
level, his analysis of the evidence).

He must “build an accurate

and logical bridge from the evidence to [his] conclusion.”
48

Zurawski, 245 F.3d at 887 (quoting Clifford v. Apfel, 227 F.3d
863, 872 (7th Cir. 2000)).

When the evidence conflicts regarding

the extent of the claimant’s limitations, the ALJ may not simply
rely on a physician’s statement that a claimant may return to
work without examining the evidence the ALJ is rejecting.

See

Zurawski, 245 F.3d at 888 (quoting Bauzo v. Bowen, 803 F.2d 917,
923 (7th Cir. 1986)) (“Both the evidence favoring the claimant as
well as the evidence favoring the claim’s rejection must be
examined, since review of the substantiality of evidence takes
into account whatever in the record fairly detracts from its
weight.”) (emphasis in original).
Garcia argues that the ALJ improperly used boilerplate
language without explaining his reasoning, as is required by SSR
96-7p, when he found Garcia was not credible.

Garcia points to a

single statement in the ALJ’s decision, “the undersigned finds
that the claimant’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms; however,
the claimant’s statements concerning the intensity, persistence,
and limiting effects of these symptoms are not credible to the
extent they are inconsistent with the above residual functional
capacity assessment.”

(Tr. 23)

Although the Seventh Circuit has

criticized the use of boilerplates, their use is not reversible
error if the ALJ further supports his decision with the record.
Yost v. Astrue, 2012 WL 2814347 (N.D. Ill. July 10, 2010)(citing
49

Punzio v. Astrue, 630 F.3d 704, 709 (7th Cir. 2011)).

In the

same section of the opinion where he made his credibility
determination, the ALJ discussed Garcia’s medically determinable
physical and mental impairments, including the claimant’s
diagnoses of end stage liver disease secondary to alcoholism,
severe thrombocytopenia without evidence of bleeding secondary to
end-stage liver disease, biliary dyskinesis, hepatitis C, a
history of chronic alcoholism, and colitis.

(Tr. 23-24) The ALJ

also addressed Garcia’s daily activities, ability to care for
himself, and limitations in performing such activities.

(Tr. 22-

25) Therefore, the ALJ met his burden by providing more than
boilerplate language.
Garcia next complains that the ALJ failed to address his
testimony that his symptoms began prior to 2008, ignored his
statements that he was able to keep his job because his
specialized knowledge made him too valuable despite numerous
absences, and did not address that Garcia did not have health
insurance, making treatment cost prohibitive.
In the opinion, the ALJ noted that he found no evidence of
disability as of the alleged onset date in June of 2008. Garcia
continued drinking until June of 2010, after the claimed onset
date, he did not seek treatment until two years after the alleged
onset date, and Garcia’s drinking was a factor for at least a
good part of his alleged period of disability, thereby indicating
50

that despite the fact Garcia claimed he suffered from severe
symptoms prior to 2008, he continued exacerbating those health
issues by continuing to drink alcohol and by neglecting to seek
treatment for two years.

(Tr. 24)

In addressing issues pertaining to how Garcia was able to
remain employed despite frequent absences from his job prior to
the alleged onset date, the ALJ concluded that Garcia’s work
performance was not affected significantly by a disability, and
Garcia was not disabled as of the alleged date of onset.

(Tr.

24) The ALJ explained that the record indicated that Garcia did
not stop working in 2008 due to a disability but because the
company went out of business. Garcia continued to work for cash
part-time after August of 2008.

When he stopped working for the

company, Garcia was lifting and carrying heavy things while
working construction as recently as 2010, and Garcia considered
himself capable of attempting demanding tasks.

(Tr. 24) Thus,

the ALJ relied on medical evidence as well as Garcia’s testimony
to conclude that Garcia could perform significantly less
demanding work consistent with the RFC assessment.

(Tr. 24)

The ALJ also considered Garcia’s daily activities and
limitations in making his RFC determination.

The ALJ noted that

Garcia did not pursue treatment for his debilitating symptoms for
two years after the alleged onset date and continued to drink
alcohol.

For these reasons, the ALJ’s determination that
51

Garcia’s claimed symptoms that he was experiencing prior to the
alleged onset date were not disabling was supported by both
Garcia’s failure to pursue treatment and Garcia’s testimony
regarding work history.

This indicates that the severity of the

pain did not rise to the level to render Garcia disabled.

For

these reasons, substantial evidence of record supports the ALJ’s
decision to discredit Garcia’s testimony.
The ALJ correctly determined that some of the physician’s
opinions were inconsistent and contradicted evidence contained in
the record as a whole, and adequately articulated his reasons for
crediting and rejecting the opinion evidence presented regarding
Garcia’s claimed disability.

In making his RFC determination,

the ALJ provided a narrative discussion describing how the
evidence supported his conclusions and assessed all of the
elements discussed in SSR 96-8p that Garcia argued were improper.
Finally, in making his credibility determination, the ALJ
considered all of the factors outlined in 96-7p that Garcia
complained were not considered provided.

His decision is

therefore supported by substantial evidence of record, and the
decision of the ALJ is AFFIRMED.
ENTERED this 27th day of March, 2013
/s/ Andrew P. Rodovich
United States Magistrate Judge

52