Lugo v. Commissioner of Social Security

Filing 19

OPINION AND ORDER finding that the Commissioner of Social Security's final decision is AFFIRMED re 1 Complaint. Signed by Judge Rudy Lozano on 7/23/2014. (rmn)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
STEVEN LUGO,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.

No. 2:13-CV-203

OPINION AND ORDER
This matter is before the Court for review of the Commissioner
of Social Security’s decision denying Disability Insurance Benefits
to Plaintiff, Steven Lugo.

For the reasons set forth below, the

Commissioner of Social Security’s final decision is AFFIRMED.

BACKGROUND
On April 19, 2010, Plaintiff, Steven J. Lugo (“Lugo”), applied
for Social Security Disability Insurance Benefits (“DIB”) under Title
II of the Social Security Act, 42 U.S.C. section 401 et seq.
alleged his disability began on June 12, 2009.

Lugo

The Social Security

Administration denied his initial application and also denied his
claims on reconsideration.

On August 8, 2011, Lugo appeared with his

attorney

at

and

testified

an

administrative

hearing

before

Administrative Law Judge (“ALJ”) Dennis R. Kramer (“Kramer”).

In

addition, Dr. James M. McKenna, M.D., testified as a medical expert
(“ME”) and Leonard M. Fisher testified as a vocational expert (“VE”).
Additional medical evidence was submitted necessitating a supplemental
hearing.

The supplemental hearing was held on January 3, 2012.

At

this hearing, Lugo testified in addition to James M. Brooks, Ph.D.,
an ME, and Thomas A. Gusloff, a VE.

On January 11, 2012, ALJ Kramer

denied Lugo’s DIB claim, finding that Lugo had not been under a
disability as defined in the Social Security Act.
Lugo
decision.
became

requested

that

the

Appeals

This request was denied.

the

Commissioner’s

final

Council

review

the

ALJ’s

Accordingly, the ALJ’s decision
decision.

See

20

C.F.R.

§

422.210(a)(2005). Lugo has initiated the instant action for judicial
review of the Commissioner’s final decision pursuant to 42 U.S.C.
section 405(g).

DISCUSSION
Facts
Lugo was born on January 26, 1967, and was 42 years old on the
alleged disability onset date.

(Tr. 23, 209).

Lugo’s alleged

impairments include hypertension, status-post left shoulder rotator
cuff surgery with detached bicep surgery on the left arm, cubital
tunnel syndrome, and depression.

(Tr. 13-14).

diploma and completed a 5-year apprenticeship.

He has a high school
(Tr. 227).

past relevant work is as a journeyman sheet-metal worker.

-2-

His only

(Tr. 228).

He last worked in June of 2009.

(Tr. 228).

The medical evidence can be summarized as follows:
Lugo injured his rotator cuff and biceps tendon on February 5,
2009, while drilling and reaching overhead at work.

(Tr. 322).

He

participated in physical therapy for about three weeks with no
improvement. (Tr. 322, 388).
An MRI of Lugo’s left shoulder taken on April 7, 2009, showed
findings suggestive of a rotator cuff tear and productive changes at
the acromioclavicular joint, with some impingement. (Tr. 315-16, 341,
368, 394, 492).
On June 18, 2009, Lugo underwent surgery performed by Dr. Thometz
at the Same Day Surgery Center at Ingalls Family Care Center.

(Tr.

322, 372). The procedures performed were: left shoulder arthroscopic
rotator cuff repair with subacromial decompression and arthroscopic
biceps tenodesis.

(Tr. 375, 396, 520).

On June 29, 2009, it was

noted that his wounds were clean and he could start therapy.
387).

(Tr.

On August 18, 2009, Lugo’s physical therapist recommended that

he continue with therapy.

(Tr. 360).

Physical therapy notes from

September 1, 2009, show Lugo putting forth maximum effort but still
having difficulty using his left arm against gravity.

(Tr. 358).

On

September 9, 2009, Dr. Thometz noted that Lugo still had some soreness
and difficulty sleeping but the physical therapy was helping.
385).

(Tr.

September 17, 2009, notes from Accelerated Rehabilitation

Center show that Lugo was continuing to benefit from physical therapy.

-3-

(Tr. 347-48, 350, 356, 503). On October 7, 2009, Dr. Thometz reported
that Lugo was having a bit of weakness for finger abduction and had
a little bit of sensitivity for Tinel’s at the elbow.
was

making

continued.

slow

progress

in

physical

therapy

(Tr. 385).

but

therapy

He
was

(Id.).

An October 20, 2009, MRI of Lugo’s left shoulder showed: reduced
sensitivity/specificity for pathology due to patient motion; intact
attenuated supraspinatus rotator cuff repair with intrinsic signal
abnormality which likely is post-surgical; intact biceps anchor and
long head of the biceps tendon with intrinsic signal abnormality which
likely is post-surgical; and severe infraspinatous tendinosis along
with a small partial thickness articular surface subscapularis tear.
(Tr. 339-40, 392-93, 490-91).

On October 23, 2009, Dr. Thometz

discussed the MRI results with Lugo and reported that his current
therapy would be continued. (Tr. 384, 480).
On November 4, 2009, Lugo underwent an independent medical
examination by Dr. Timothy R. Lubenow.

(Tr. 322-27).

Dr.

reported:
He is still having a lot of pain with certain
motions,
especially
internal
and
external
rotation at the shoulder joint.
He also is
having limitations with movement. He also states
that he has some numbness and paresthesias in his
pinky and ring fingers that run up to midforearm.
He describes a constant ache in his
shoulders of around 5-6/10 and with motion during
therapy and certain stretches, the pain can get
to be a 9-10/10. The pain is all in his left
shoulder and he describes the pain as aching,
with occasional shooting pains down the arm. He
-4-

Lubenow

feels that he has muscle weakness on that side in
that upper extremity as well as tremors.
(Tr. 322).

His medications in November of 2009 included Norco

10/3251, which he takes three or four times per day and Ambien CR2
which he takes at bedtime.
with a weight of 240 pounds.3

(Tr. 322).

Lugo was measured at 5’11”

(Tr. 322).

Dr. Lubenow reported that

Lugo had significant tremors both at rest and with active motion.
(Tr. 322-23).

Grip strength on the left was reduced to 3/5 compared

to the right and flexion, extension, abduction and adduction at the
left shoulder were all decreased to 4/5.

(Tr. 323).

extension strength at the left elbow was 4/5.
significantly

limited

range

of

motion,

(Id.).

especially

Flexion and
He also had
with

flexion

(approximately 110º/180º) and abduction (approximately 105º/180º).
(Tr. 323). Extension was limited to about 35º/60º. In addition, Lugo
had paresthesias and sensory changes along the pinky and ring fingers
and also in the lateral hand and wrist. (Id.).

Dr. Lubenow concluded

that Lugo’s function was severely restricted and recommended that he

1

Norco 10/325 (10 mg of hydrocodone bitartrate and 325 mg of
acetaminophen is an opioid analgesic used to treat moderate to
moderately severe pain. The most frequent side effects of Norco
are lightheadedness, dizziness, sedation, nausea, and vomiting.
http://www.rxlist.com/norco-drug.htm
2

Ambien CR (zolpidem tartrate) is a sedative used to treat
insomnia characterized by difficulty falling asleep and/or
staying asleep. http://www.rxlist.com/ambien-cr-drug.htm
3

A height of 5’11” and a weight of 240 pounds indicates a
body mass index (BMI) of 33.5 which reflects obesity.
http://nhlbisupport.com/bmi/bminojs.htm
-5-

continue attending therapy three times per week.

(Tr. 323).

On November 9, 2009, Dr. Thometz reported that Plaintiff was
making progress in therapy.

(Tr. 331).

He was still tight for

internal rotation and still having some numbness and tingling through
the ring and small fingers of his left hand.

(Id.).

He has a fairly

weak left grip compared to the right. (Id.). On exam he had a mildly
positive Tinel’s sign at the elbow and at the wrist for the ulnar
nerve.

(Tr. 331).

Dr. Thometz noted that Lugo “is not capable of

work. He will continue in his current therapy program.”

(Tr. 331).

Physical therapy notes from November 17, 2009, show Lugo putting forth
maximum effort, that he is making some progress and that the skilled
therapy should continue.

(Tr. 346, 501).

On November 18, 2009, Dr.

Thometz noted that Lugo was progressing in therapy.

(Tr. 384, 480).

He still had some numbness and tingling in the left small and ring
finger.

(Tr. 384, 480).

Dr. Thometz continued Lugo in his current

therapy. (Id.).
On

December

3,

2009,

George

Charuk,

M.D.,

administered

electrodiagnostic study at the referral of Dr. Thometz.

an

(Tr. 328-30,

383, 479). The EMG showed a conduction abnormality of the ulnar nerve
distal to the medial epicondyle.

“These electrical findings are

consistent with a mild cubital tunnel syndrome.”4

4

(Tr. 330, 332,

“Cubital Tunnel Syndrome is a condition brought on by
increased pressure on the ulnar nerve at the elbow.... [S]ymptoms
usually include pain, numbness and/or tingling. The numbness and
tingling most often occurs in the ring and little fingers....
When symptoms are severe or do not improve, surgery may be needed
-6-

336).

On December 10, 2009, Dr. Thometz gave Lugo a prescription to

continue his current therapy program, noting that he was not yet ready
for work conditioning.

(Tr. 380).

On January 5, 2010, physical therapist Cheryl Shelby reported to
Dr. Thometz that Lugo was making slow progress and recommended that
another four weeks of therapy (2-3x/week) be prescribed.
362, 495).

(Tr. 344,

On January 19, 2010, Chartis-Clayton (the Worker’s Comp

insurer) indicated that it was denying coverage for additional therapy
claiming that it did not appear to be medically necessary.
496).

(Tr. 363,

On January 27, 2010, Dr. Thometz noted that the prior request

for additional therapy had been denied and he wrote a new prescription
for therapy.

(Tr. 380).

On February 3, 2010, it was noted that no therapy had been
approved and Lugo was still having a lot of difficulty with his wrist.
(Tr. 379, 475).
(Id.).

Dr. Thometz reported persistent left wrist pain.

On February 24, 2010, an MRI of Lugo’s left wrist showed non-

specific edema over the dorsum of the carpus within the region of the
dorsal intercarpal ligaments, suspicious for ligamentous injury; also
mild osteoarthritis in the carpus.

(Tr. 338, 391, 489).

On March 3,

2010, Lugo and Dr. Thometz discussed the MRI results and the fact that
Lugo has not gotten the approval for any additional therapy or even

to ease the pressure on the nerve.”
http://www.assh.org/Public/
HandConditions/Pages/CubitalTunnelSyndrome.aspx. Even after
surgery the symptoms may not completely resolve, especially in
severe cases. (Id.).
-7-

any home exercise equipment. (Tr. 376, 472). Dr. Thometz recommended
a trial of therapy for the left wrist and resumption of therapy for
the shoulder.
work.”

(Id.).

(Tr. 378).

He noted that Lugo was “not capable of regular
On April 7, 2010, Dr. Thometz noted that Lugo

still had numbness through the ring and small fingers and soreness
through the wrist.

(Tr. 376, 472).

Although there was almost full

forward elevation there was still some tightness for internal rotation
with the thumb getting a little bit past the hip towards L4.

(Id.).

Dr. Thometz still recommended a course of therapy for the wrist and
elbow and additional therapy for the shoulder.

(Tr. 376, 472).

Dr.

Thomas also reported that Lugo was “not capable of regular work at
that time.”

(Tr. 376, 472).

On May 5, 2010, Dr. Thometz reported no

change in Lugo’s condition or his recommendations.

(Tr. 468).

On June 11, 2010, Lugo was examined by Kanayo K. Odeluga, M.D.,
at the request of the SSA.

(Tr. 416-19).

Lugo related left shoulder

pain that he described as aching, constant and moderate in intensity.
(Tr. 416).

It was noted that after the surgery Lugo returned to

physical therapy until January of 2010, when the Worker’s Compensation
insurer did not approve further therapy.

(Id.).

Lugo reported that

heavy lifting and overhead motion exacerbated his pain.

(Tr. 416).

He also has pain in his left wrist. (Id.). An MRI of the wrist showed
a lot of inflammation.
Norco and Ambien.

(Tr. 416).

(Id.).

His medication still included

Dr. Odeluga noted that Lugo had numbness

over the fourth and fifth fingers of his left hand and he was

-8-

diagnosed with ulnar neuropathy following EMG and a nerve conduction
study.
groove

(Tr. 417).
on

the

There was a positive Tinel sign over the ulna

medial

aspect

Neurological exam was normal.

of

the

left

(Tr. 419).

elbow.

(Tr.

418).

Dr. Odeluga’s impression

was: chronic left shoulder pain, left shoulder rotator cuff/biceps
tendon

tear

post-repair,

left

ulnar

hypercholesterolemia and obesity.

neuropathy,

hypertension,

(Tr. 419).

On June 23, 2010, Lugo was examined by psychologist Irena M.
Walters, Psy.D., at the request of the SSA.

(Tr. 427-29).

Lugo

related to Dr. Walters that he had not had any physical therapy since
January after Worker’s Compensation told him he was not entitled to
any more therapy.

(Tr. 427).

Lugo related that he was left-handed

and had lost mobility in his left hand.

(Tr. 428).

Lugo admitted to

feelings of hopelessness or helplessness since being out of work.
(Tr. 428).

Since the injury he has experienced fatigue, loss of

energy and a loss of interest in doing things.

(Tr. 428).

Dr.

Walters found that Lugo’s mood was subdued and his affect was
appropriate.

(Tr. 428).

Dr. Walters noted that Lugo put forth good

effort during the evaluation.
diagnosis on Axis I or Axis II.

(Tr. 429).

Dr. Walters gave no

(Tr. 429).

On June 30, 2010, Amy Johnson, Ph.D., reviewed the records and
filled out a psychiatric review technique form indicating that Lugo

-9-

had no medically determinable mental impairment.5 (Tr. 430). On July
9, 2010, Fernando Montoya, M.D., reviewed the record and filled out
a

physical

residual

functional

capacity

form

opining

that

Lugo

retained the functional capacity for light work with occasional
climbing of ladders, ropes and scaffolds and also occasional crawling;
but with frequent climbing of ramps/stairs, balancing stooping,
kneeling and crouching.6

(Tr. 444-52).

Dr. Montoya concluded that

reaching and handling should be limited to occasional with the left
arm and that there were not limitations in reaching or handling with
the right arm.

(Tr. 447).

Dr. Montoya further concluded that Lugo

had no limitations with regard to fingering or feeling with either
hand.

(Id.).
On July 7, 2010, Dr. Thometz noted that authorization had not

been granted for Lugo to see the hand specialist.

(Tr. 468).

On

August 11, 2010, Dr. Thometz reported no change although Lugo reported
feeling

anxious

and

depressed.

(Tr.

455,

466).

recommended that Lugo have a psychological evaluation.

Dr.

Thometz

(Id.).

Dr.

Thometz continued to report no change in Lugo’s condition from
September 2010 through December 2010.

(Tr. 455, 465, 466).

5

On October 12, 2010, another State agency physician, J.
Grange, Ph.D., affirmed Dr. Johnson’s form as written. (Tr. 452).
6

It appears that, on October 7, 2010, Dr. Montoya’s RFC form
was affirmed as written by B. Whitley, M.D., another State agency
paper reviewer. (Tr. 458). Dr. Whitley references an assessment
dated July 12, 2010, not July 9, 2010, but this Court did not
find any report in the file dated July 9, 2010.
-10-

An MRI arthrogram of Lugo’s left shoulder taken on January 17,
2011,

showed

bursitis

and

articulation.

status-post

rotator

degenerative

cuff

changes

repair,
of

the

mild

subacromial

acromioclavicular

(Tr. 487).

On April 20, 2011, Dr. Thometz reported that Lugo had seen Dr.
Nagel and that Dr. Nagel thought that the cubital tunnel syndrome was
likely an aggravation of his post-surgical treatment.

(Tr. 462).

On

May 18, 2011, Dr. Thometz reported that a new EMG7 showed evidence of
bilateral cubital tunnel syndrome.

(Tr. 459, 542).

Lugo continued

to have numbness and tingling in his left hand but no symptoms on the
right.
(Id.).

(Id.).

On exam he had a positive Tinel’s sign at the elbow.

He also had some difficulty with weakness of small finger

abduction. (Id.).
On June 15, 2011, Dr. Thometz reported that Lugo’s condition was
basically unchanged.

(Tr. 459, 542).

On July 27, 2011, Dr. Thometz

reported no change and that the worker’s comp insurer had still not
approved any additional treatment.

(Tr. 542).

Lugo was still having

numbness and tingling through his small and ring fingers on his left
hand and he had been getting some popping and discomfort while trying
to do home exercises.

(Tr. 542).

Dr. Thometz recommended treating

the cubital tunnel and then re-establishing therapy.

(Id.).

On August 25, 2011, Lugo was examined by Mark A. Amdur, M.D., at
the request of Lugo’s attorney. (Tr. 551-54). Dr. Amdur is certified
7

The EMG was performed on May 12, 2011.

-11-

(Tr. 460).

in psychiatry and qualified in forensic psychiatry by the American
Board of Psychiatry and Neurology.

(Tr. 547).

Dr. Amdur reviewed

various medical records including the reports of Drs. Parks and
Walters from 2008 and 2010.

(Tr. 551).

Lugo related to Dr. Amdur

that he had surgery on his shoulder but his treatment was cut short.
(Id.).

“Feelings of despondency and rejection centered on the denial

of physical therapy services,”8 were a recurring theme throughout the
interview.

(Tr. 551).

Lugo related pain and weakness in his left

shoulder with numbness and tingling in his left hand that interferes
with gripping and grasping. (Tr. 551). He also related problems with
focus and following through with directions.
to crying daily over the last six months.

(Id.).

(Tr. 551).

Lugo admitted
Lugo described

diminished libido and diminished desire to play with his children.
(Id.).

He had withdrawn from family contact.

(Id.).

He tearfully

admitted to often wishing he was dead. (Id.). He had also reportedly
gained weight.
asleep.
552).

(Tr. 552).

(Tr. 554).

He related marked difficulty staying

Lugo said he had given up going to church.

(Tr.

He mostly just lies around the house and has to be prompted to

shower, shave or change clothes.

(Tr. 552).

Brief muscle testing revealed diminished strength in his left
shoulder and left hand. He seemed unable to move the third and fourth
fingers of his left hand.

He is obese.

8

(Tr. 552).

Dr. Amdur

The physical therapy services were denied by the Worker’s
Compensation insurer for the first time in January 2010, but the
refusal to authorize or pay for treatment continued.
-12-

reported that Lugo was tense and apprehensive to a moderately severe
degree.

(Id.).

Lugo’s responses were moderately slowed.

(Id.).

“Affect was depressed to a moderately severe degree.” (Tr. 552). Dr.
Amdur noted that Lugo is obsessive and fixated on the physical therapy
services

and

treatment

denied

to

preoccupations are markedly severe.
name any recent news events.

him.

His

(Tr. 552).

(Id.).

somatic

pain

Lugo was unable to

His score on the Montreal

Cognitive Assessment showed a mild cognitive impairment.
performance on that test was slow.

and

(Tr. 552).

(Id.).

His

Dr. Amdur reported

that, “the intensity and persistence of his current depression are
consistent with major depressive disorder.”

(Tr. 553).

Dr. Amdur

assessed that Lugo would be a slow worker and unable to relate
effectively with co-workers or supervisors. In addition, he believed
Lugo was affectively labile and would be unable to tolerate work
stresses.

(Tr. 553).

Dr. Amdur diagnosed Lugo with depression.

(Id.).
On September 9, 2011, Dr. Amdur completed a medical source
statement of ability to do mental activities.

(Tr. 544-46).

Dr.

Amdur reported that because of motor slowing, impaired concentration
and diminished ability to tolerate stress, Lugo would be unable to
remember, understand and carry out instructions for even unskilled
work.

(Tr. 544).

Marked social withdrawal would limit his capacity

to deal with co-workers and supervisors. (Tr. 545).
On September 21, 2011, Dr. Thometz completed a Medical Source

-13-

Statement of ability to do physical work-related activities.
555-60).

(Tr.

Dr. Thometz reported that Lugo should not be lifting or

carrying even as little as ten pounds, and he has bilateral cubital
tunnel syndrome in his wrists.

(Tr. 555).

Ulnar neuropathy has been

diagnosed in his left hand and wrist and his shoulder suffers from
subluxation/rotator cuff syndrome.
tendonitis.

(Tr. 555).

(Id.).

Lugo also has biceps

Dr. Thometz wrote that Lugo should not do

prolonged sitting, standing or walking and that he should not be using
his hands or wrists.

(Tr. 556).

Dr. Thometz reported that Lugo

should never use his left hand and his right hand should only be used
occasionally for feeling and fingering.

(Tr. 557).

Dr. Thometz

explained that Lugo has generalized weakness bilaterally in his hands
and fingers and that the left side is impacted by the ruptured left
rotator cuff, left shoulder weakness with limited arm motion and
numbness/weakness in the left arm and hand.

(Tr. 557).

Because of

limited upper extremity strength, Dr. Thometz reported that Lugo
should never climb ladders, ropes, or scaffolds; stoop, kneel, crouch
or crawl; and should only occasionally balance.

(Tr. 558).

Lugo’s Testimony
At the first hearing before ALJ Kramer on August 2, 2011, Lugo
testified that he is left-handed.

(Tr. 54).

He has a high school

education and had been a journeyman sheet-metal worker for over 15
years.

(Tr. 54).

Lugo explained that there were lapses in his

-14-

medical treatment because the worker’s compensation insurer has
refused to authorize or pay for much of his recommended treatment.
(Tr. 56).

Lugo testified:
Well, with - - I constantly get numbness in my
hand, my ring finger and my pinky finger. With
that, it’s hard to grasp things and control
things when I have to hold them, you know. I have
problems sleeping at night so I - * * *
It’s because of the pain. I’m constantly turning
and so I constantly feel that effect in my left
shoulder. And, you know, it’s like an aching pain
all the time so I’m just trying to deal with it
the best I can.

(Tr. 57).

He testified that he has a hard time holding on to dishes,

but he sets them down before he can drop them.

(Tr. 58).

He did not

think he would be able to sort and handle papers in a file with his
left hand.

(Tr. 59).

He gets numbness if he holds something or if

his left arm is in a bent position.

(Tr. 60).

With his left forearm

and hand horizontal he will get numbness in his hand and in the pinky
and ring finger.

(Tr. 61).

Lugo explained that he did not receive

all of the post-surgery therapy that he needed so that now just trying
to open a door or lifting a negligible weight results in pain.
62).

(Tr.

According to Lugo, just lifting the arm itself produces pain.

(Id.).
Lugo explained that the worker’s compensation insurer would not
authorize or pay for physical therapy beyond January 5, 2010.
64).

(Tr.

He rated his left shoulder pain at a 6 out of 10, but when

tossing and turning at night it goes up to 9 out of 10.

-15-

(Tr. 64).

The doctor told him to avoid any overhead work. (Tr. 65). Lugo rated
the pain in his left bicep area at 5 out of 10.

(Tr. 66).

He

testified that often, if he has not slept well at night, he will get
up in the morning, have something to eat and then go lie down, watch
some television and possibly fall asleep.
that he rests a couple hours a day.

(Tr. 66-67).

(Tr. 66-67).

hearing he rested for about two hours.

He reports

The day before the

(Tr. 67).

During the

remainder of the day he may go outside and take a little walk because
he gets depressed sitting inside all the time.

(Tr. 67).

One of his

doctors recommended that he see a psychiatrist but the insurer would
not cover it so he is not receiving treatment for his depression.
(Tr. 67).

Lugo wants to have additional surgery and additional

physical therapy.

(Tr. 71).

When asked to describe his depression, Lugo explained, “I don’t
feel like a person.

I don’t feel like a man.”

pain is bad it makes him angry.

(Tr. 72).

When the

If he is doing something when the

pain gets bad he usually stops what he is doing.

(Tr. 72).

At Lugo’s second hearing before ALJ Kramer, on January 3, 2012,
Lugo testified that he was still being treated by Dr. Thometz, that
he was still taking medication and that ulnar nerve surgery has been
discussed.

(Tr. 34).

significant pain.

He testified that he was still experiencing

(Tr. 34-35).

He also continued to feel depressed.

(Tr. 35). In August 2011, Lugo told the doctor that he did not go out
very much and spent most of his time at home.

-16-

Lugo testified that,

as of the second hearing, that remained true.

(Tr. 35).

Since he

last appeared before the ALJ he feels more down on himself.

(Id.).

He stated that he felt he was inadequate for his family. (Id.). Lugo
was still pretty apathetic, not seeing his friends, not going out and
not wanting to be with people.

(Tr. 35).

He testified that he tends

to stay home, not doing much of anything and not having an interest
in anything.

(Tr. 35-36).

He still has problems sleeping but may

still spend 12 hours a day in bed.

(Tr. 36).

His wife still has to

urge him to get up, shower, shave and change his clothes.
He has given up his hobbies like golfing and fishing.

(Tr. 36).

(Tr. 36).

Testimony of Dr. McKenna
Dr. James McKenna testified at the August 2011 hearing as a
medical expert.

(Tr. 73-92).

left

cuff

rotator

injury

Dr. McKenna testified that Lugo had a
and

productive

changes

of

the

acromioclavicular joint which he stated was spurring of that joint.
(Tr. 75-76). There was also an associated impingement syndrome. (Tr.
76).

Conservative repair surgery was performed on June 18, 2009, but

they did not do the “Mumford decompression” or radical acromioplasty
that Dr. McKenna indicated would have been appropriate.

(Tr. 76).

The surgeon found that his biceps tendon was also torn and that was
treated surgically.

(Id.).

Dr. McKenna noted that the left shoulder

MRI from October 2009, showed that he did not have a healed, intact
supraspinatus tendon and there was some residual signal abnormality

-17-

showing that there was not complete healing.

(Tr. 77).

There was

also “severe tendonosis of the infraspinatus tendon with a small
partial tear and thickness and the articular surface suprascapular
tear.”

(Tr. 77).

Dr. McKenna explained that Lugo also has premature

osteoarthritis in the left wrist.

(Tr. 78).

Dr. McKenna also noted

that Lugo was found to have bilateral cubital tunnel syndrome, but
with all of the symptoms on the left.

(Tr. 79).

Dr. McKenna stated

that the ulnar nerve supplies the small finger and the lateral half
of the ring finger and it mostly affects motor function of abduction
of the small finger.

(Tr. 79).

Dr. McKenna opined that Lugo’s ulnar

neuropathy would really only affect a concert pianist trying to get
a full span of the keyboard.

(Tr. 79-80).

Dr. McKenna noted that

there could be more limitation where pain was involved.

(Tr. 80).

Dr. McKenna noted some residual pain in Lugo’s shoulder, then stated:
We would have some residual loss of function as
a result of his previous conditions of the tear
plus repair, and then we have the, we have some
arthritis in his wrist, which he is somewhat
partially symptomatic from, even though some of
the pain in the wrist may be radiation from the
elbow pain because of the carpal tunnel as well.
(Tr. 81).

Dr. McKenna repeated that Lugo could have referred pain

into his left wrist.

(Tr. 81).

Dr. McKenna testified that Lugo did

not quite meet Appendix 1 Listing 1.08, but then noted that “pain does
interfere with his function somewhat.” (Tr. 81-82). Dr. McKenna said
that the listing differentiated between normal function and major
function and opined that the listing was not equaled despite the pain.

-18-

(Tr. 82).
Dr. McKenna testified that he thought a limitation to a light
load was prudent.
crawling.

(Tr. 83).

(Tr. 83).

Dr. McKenna supported occasional

He felt that Lugo’s reaching on the left would

be limited to occasional.

(Tr. 83-84).

But, Dr. McKenna later added

that he would reduce handling on the left side to only 10-15% of the
work-day, referring to gross manipulation with the left hand.
84).

(Tr.

Dr. McKenna also noted that Lugo should avoid concentrated

exposure to extreme cold as well as vibration. (Tr. 85). Dr. McKenna
said that he did not think the ulnar neuropathy would affect someone
who had to type on the job unless they were speed typing and that
frequent computer use would be okay.

(Tr. 85-86).

Dr. McKenna then

added that elbow flexion would be difficult for Lugo.
response

further

questioning,

Dr.

McKenna

In

acknowledged

that

typing/using the computer in general results in flexed elbows.

(Tr.

86-87).

to

(Tr. 86).

Dr. McKenna amended his opinion to reflect that Lugo’s

computer usage should be limited to occasional instead of frequent.
(Tr. 87). Dr. McKenna then brought up the possibility of a functional
overlay and noted that there had been a suggestion by a treating
source that Lugo see a psychiatrist. (Tr. 88). Dr. McKenna, however,
admitted

that

none

of

the

treating

physicians

had

suggested

a

functional overlay and the psychiatric referral was for reactive
depression.

(Tr. 88).

Despite Dr. McKenna’s initial concern about

the EMG results, he ended up stating that it was actually difficult

-19-

to

say

what

the

initial

EMG

changes

represented.

(Tr.

89).

Nonetheless, Dr. McKenna noted that he found it “a little troubling
that [there are] symmetrical objective findings and asymmetrical
subjective findings.”

(Tr. 89).

Dr. McKenna expressed concern

regarding Lugo’s credibility based on a comparison of the complaints
to the medical record, but stated that he was considering Lugo’s pain
“to a certain extent” in reaching his conclusion regarding Lugo’s RFC,
but other than stating he was not considering 100% of Lugo’s pain, he
did not explain how much pain he had included.

(Tr. 89-90).

Testimony of Dr. Brooks
Psychologist James Brooks testified via telephone as a medical
expert at the supplemental hearing held on January 3, 2012.
43).

(Tr. 36-

Dr. Brooks had not been present at the first hearing and he

asked no questions of Lugo prior to offering his opinion.

(Tr. 36).

Dr. Brooks’ testimony focused on four exhibits in the file: notes from
Dr. Roger Parks who saw Lugo for 13 individual therapy sessions in
2008 (Exhibit 9F); the June 2010 report of Dr. Walters (Exhibit 10F);
and both a report and an assessment from Dr. Amdur in August of 2011
(Exhibits 17F, 20F).

(Tr. 37-39, 422-25, 426-29, 532-36, 543-54).

Dr. Brooks stated that back in 2008, Lugo was diagnosed with an
adjustment disorder with some symptoms of depression related to

-20-

marital problems.9

(Tr. 37).

He testified that at the time of the

June 2010 psychological evaluation, Lugo was receiving no mental
health treatment and no diagnosis was made on either Axis I or Axis
II.

(Tr. 37).

He stated that the assessment supported only a very

mild level of any kind of psychiatric symptoms. (Tr. 37). Dr. Brooks
testified that the psychological evaluation from August 2011 showed
a totally different picture: it described Lugo as having severe
depression symptoms, decreased libido, weight gain, excessive sleep,
somatic pain and preoccupation, and social withdrawal.

(Tr. 37-38).

In August of 2011, Lugo was given a diagnosis of major depression.
(Tr. 37-38).

Dr. Brooks stated that although Lugo related his

worsening depressive symptoms back to January 2010, the report from
June 2010 did not demonstrate diagnosable depression.

(Tr. 38).

Dr. Brooks also expressed concern about the manner in which the
2011 evaluation took place: the examining psychologist administered
the evaluation at the office of Lugo’s attorney.

(Tr. 38-39).

The

psychologist, Dr. Amdur, works for the Thresholds organization and
does not have a separate office.

(Tr. 40-41).

9

He usually goes to

On July 25, 2007, Lugo asked his primary care physician to
refer him to a psychiatrist. (Tr. 414). From February 19, 2008
through July 7, 2008, Lugo had 13 therapy sessions with
psychologist Roger L. Parks, Psy.D. (Tr. 425). He presented with
depressive symptoms including low level energy, difficulty
concentrating and poor sleep. (Id.). He was diagnosed as having
an adjustment disorder with depressed mood. (Tr. 425). The
depression was related to marital conflict, and only minimal
progress had been made when therapy ended and Lugo indicated that
he might be interested in marital therapy with his wife. (Id.).
-21-

individual’s homes for psychological evaluations, but since Lugo lives
in Indiana and Dr. Amdur is licensed in Illinois, the evaluation was
performed at the attorney’s office in Illinois.

(Tr. 40-41).

Dr.

Brooks testified to no severe mental impairment based primarily on the
June 2010 report.

(Tr. 39-40).

Dr. Brooks acknowledged that long periods of severe pain can
affect an individual’s mental status.

(Tr. 41).

Dr. Brooks also

conceded that it was possible that an individual’s mental status could
have deteriorated over a year when the person had been experiencing
significant pain.

(Tr. 41).

Dr. Brooks acknowledges that several

medical examination reports noted that Lugo reported pain.

(Tr. 41).

Dr. Brooks also admitted that difficulty sleeping at night can affect
someone’s mental status.

(Tr. 42).

Dr. Brooks also testified that

Lugo’s current testimony is more consistent with the August 2011
report than the June 2010 report.

(Tr. 42).

Dr. Brooks acknowledged

that since he was testifying by telephone he was unable to observe
Lugo.

(Tr. 42-43).

Dr. Brooks stated that crediting Dr. Amdur’s

report, Lugo would meet the requirements of Listing 12.04 sometime
after June 2010.

(Tr. 43).

Testimony of VE Leonard Fisher
Leonard Fisher testified as a VE at Lugo’s first hearing.

(Tr.

90-99). In response to a “modified” RFC consistent with Dr. McKenna’s
testimony, VE Fisher testified that such an individual would be unable

-22-

to perform Lugo’s past relevant work or use any transferable work
skills.

(Tr. 91-92).

The VE stated that the hypothetical individual

would be at the light unskilled level.

(Id.).

The VE named parking

lot attendant,10 school bus monitor and usher as jobs the hypothetical
person could perform.

(Tr. 93).

The VE said that in his experience,

parking lot attendants use their dominant hands from occasionally to
frequently.

(Tr. 98).

If the individual must lie down for two hours

during the day, the individual would be unable to sustain gainful
employment. (Tr. 97).

Testimony of VE Thomas A. Gusloff
Thomas A. Gusloff testified as a VE at Lugo’s second hearing.
(Tr. 43-49). When presented with a hypothetical question limiting the
individual according to Dr. McKenna’s testimony, VE Gusloff testified
that such an individual would be unable to perform Lugo’s past
relevant work as a sheet metal worker.
three

light

unskilled

jobs

he

(Tr. 44-45).

considered

The VE named

consistent

with

the

hypothetical, naming usher, counter clerk and investigator-dealer
accounts.

(Tr. 45).

When limitations of function from Dr. Amdur’s

assessment were added to the hypothetical, VE Gusloff testified that
there would be no jobs.

(Tr. 45-46).

The VE also explained that the

delineation of reaching, handling, fingering and feeling between the
10

The VE testified that the job of parking lot attendant is no longer
consistent with the definition listed in the DOT but that, based on his
experience, he considers the job to be consistent with the parameters of the
ALJ’s hypothetical question. (Tr. 94-95).

-23-

left and right arms is not specifically addressed by the Selected
Characteristics of Jobs Defined in the Dictionary of Occupational
Titles.

(Tr. 46).

Review of Commissioner’s Decision
This Court has authority to review the Commissioner’s decision
to deny social security benefits.

42 U.S.C. § 405(g).

“The findings

of the Commissioner of Social Security as to any fact, if supported
by

substantial

evidence,

shall

be

conclusive

.

.

.

.”

Id.

Substantial evidence is defined as “such relevant evidence as a
reasonable mind might accept as adequate to support a decision.”
Richardson v. Perales, 402 U.S. 389, 401 (1971).

In determining

whether substantial evidence exists, the Court shall examine the
record in its entirety, but shall not substitute its own opinion for
the ALJ’s by reconsidering the facts or re-weighing evidence.
v. Barnhart, 347, F.3d 209, 212 (7th Cir. 2003).

Jens

With that in mind,

however, this Court reviews the ALJ’s findings of law de novo and if
the ALJ makes an error of law, the Court may reverse without regard
to the volume of evidence in support of the factual findings.

White

v. Apfel, 167 F.3d 369, 373 (7th Cir. 1999).
As a threshold matter, for a claimant to be eligible for DIB
under the Social Security Act, the claimant must establish that he is
disabled.

To qualify as being disabled, the claimant must be unable

“to engage in any substantial gainful activity by reason of any

-24-

medically determinable physical or mental impairment which can be
expected to result in death or has lasted or can be expected to last
for a continuous period of not less than twelve months.”
§§ 423(d)(1)(A) and 1382(a)(1).

42 U.S.C.

To determine whether a claimant has

satisfied this statutory definition, the ALJ performs a five step
evaluation:
Step 1:

Is the claimant performing substantial gainful activity: If
yes, the claim is disallowed; if no, the inquiry proceeds
to Step 2.

Step 2:

Is the claimant’s impairment or combination of impairments
“severe” and expected to last at least twelve months? If
not, the claim is disallowed; if yes, the inquiry proceeds
to Step 3.

Step 3:

Does the claimant have an impairment or combination of
impairments that meets or equals the severity of an
impairment in the SSA’s Listing of Impairments, as
described in 20 C.F.R. § 404, Subpt. P, App. 1? If yes,
then claimant is automatically disabled; if not, then the
inquiry proceeds to Step 4.

Step 4:

Is the claimant able to perform his past relevant work?
If yes, the claim is denied; if no, the inquiry proceeds to
Step 5, where the burden of proof shifts to the
Commissioner.

Step 5:

Is the claimant able to perform any other work within his
residual functional capacity in the national economy: If
yes, the claim is denied; if no, the claimant is disabled.

20 C.F.R. §§ 404.1520(a)(4)(i)-(v) and 416.920(a)(4)(i)-(v); see also
Herron v. Shalala, 19 F.3d 329, 333 n. 8 (7th Cir. 1994).
In

this

substantial

case
gainful

the

ALJ

found

activity

and

that

Lugo

that

he

was

not

suffered

engaged
from

in

severe

impairments; namely, essential hypertension, status-post left shoulder
rotator cuff surgery with detached bicep surgery on the left arm, and
-25-

left cubital tunnel syndrome. The ALJ further found that Lugo did not
meet or medically equal one of the listed impairments and could not
perform any of his past relevant work, but nonetheless retained the
physical residual functional capacity to perform a reduced range of
light work.

More specifically, the ALJ found that:

The claimant has the residual functional capacity
to perform light work as defined in 20 CFR
404.1567(a) in that the claimant can occasionally
lift and/or carry up to 20 pounds and frequently
lift and/or carry up to 10 pounds. He can stand
and/or walk 6 hours in an 8-hour workday. The
claimant should never climb ladders, ropes, or
scaffolds and can only occasionally crawl. He
can finger and feel constantly with both hands,
but must limit reaching with the left, dominant
hand to 10% to 15% of an 8-hour workday. He can
reach constantly with the right hand, and handle
constantly with the right hand, but can only
occasionally handle with the left hand and must
never do any overhead reaching with the left
upper
extremity.
He
should
also
avoid
concentrated exposure to extreme cold.
(Tr. 16).
With these limits in mind, the ALJ found that Lugo could not
perform his past relevant work, but that there were jobs existing in
significant numbers in the national economy that Lugo could perform.
(Tr. 22-23). Thus, Lugo’s claim failed at step five of the evaluation
process.

Lugo believes that reversal is required because the ALJ’s

decision was not supported by substantial evidence.
Lugo believes that the ALJ erred by failing to give proper
consideration to:
(1) evidence from one of Lugo’s treating physicians;
(2) Lugo’s credibility; and
-26-

(3) Lugo’s mental impairment.
Each argument will be examined in turn.

The ALJ’s Consideration of Evidence from Dr. Thometz
Lugo claims the ALJ erred in evaluating the evidence obtained
from one of his treating physicians, Dr. Thometz.

Social Security

Ruling (“SSR”) 96-2p provides that a treating physician’s medical
opinion must be given controlling weight if it is “well supported” and
“not inconsistent with other substantial evidence in the case record.”
Furthermore, SSR 96-2p requires that the ALJ’s “decision must contain
specific reasons for the weight given to the treating source’s medical
opinion, supported by the evidence in the case record, and must be
sufficiently specific to make clear to any subsequent reviewers the
weight the adjudicator gave to the treating source’s medical opinion
and the reasons for that weight.”

SSR 96-2p.

If the treating physician’s opinion is not well supported or is
inconsistent with other substantial evidence, the ALJ must apply the
following factors to determine the proper weight to give the opinion:
(1) the length of the treatment relationship and
frequency of examination;
(2) the nature
relationship;

and

extent

of

the

treatment

(3) how much supporting evidence is provided;
(4) the consistency between the opinion and the record
as a whole;
(5) whether the treating physician is a specialist;
-27-

(6) any other factors brought to the attention of the
Commissioner.
20 C.F.R. §§ 404.1527(d)(2) and 416.927(a)-(d); see Moss v. Astrue, 555
F.3d 556, 561 (7th Cir. 2009); Bauer v. Astrue, 532 F.3d 606, 608 (7th
Cir. 2008).

It is reversible error for an ALJ to discount the medical

opinion of a treating physician without applying this legal standard and
for further failing to support the decision with substantial evidence.
Moss, 555 F.3d at 561; see also Punzio v. Astrue, 630 F.3d 704, 710 (7th
Cir. 2011) (finding the ALJ’s rejection of a treating physician’s mental
residual

functional

capacity

questionnaire

was

not

substantially

supported).
Lugo began treating with Dr. Thometz, an orthopaedic surgeon,
shortly after his work related injury.

Several months after the

injury, Dr. Thometz reported that Lugo was not “capable of work” and
needed to continue therapy.
variation
instances.

of

his

opinion

(Tr. 331).
that

Lugo

Dr. Thometz’ notes repeat a
could

not

work

on

several

In December of 2009, Dr. Thometz noted that Lugo was not

yet ready for work conditioning.

(Tr. 380).

In March of 2010, Dr.

Thometz noted that Lugo was “not capable of regular work.” (Tr. 378).
Again, in April of 2010, Dr. Thometz noted that Lugo was “not capable
of regular work at that time.”

(Tr. 376, 472).

These treatment

notes, although opining on Lugo’s ability to work, did not offer
specific limitations regarding Lugo’s ability to function.
In September of 2011, Dr. Thometz completed a medical source

-28-

statement of ability to do physical work-related activities.

(Tr.

555-60). This form provided detailed opinions regarding what Lugo can
and cannot do. More specifically, Dr. Thometz opined that Lugo should
not lift or carry even as little as ten pounds.

Furthermore, Lugo

should avoid prolonged sitting, standing or walking and should not use
his hands or wrists.

(Tr. 556).

According to Dr. Thometz, Lugo

should never use his left hand and his right hand should only be used
occasionally for feeling and fingering.

(Tr. 557).

And, Dr. Thometz

concluded that Lugo should never climb ladders, ropes, or scaffolds;
stoop, kneel, crouch or crawl; and should only occasionally balance.
(Tr. 558).
The ALJ did not give Dr. Thometz’ opinion controlling weight.
According to the ALJ:
Dr. Thometz indicated throughout his 2009 and
into 2010 records that the claimant would not be
capable of regular work. The undersigned notes
that these opinions were rendered mostly after
the claimant had undergone his rotator cuff
surgery and was still participating in physical
therapy.
Additionally, Dr. Thometz’s notes
consistently document the claimant’s positive
improvement with the help of the therapy and athome exercises.
His indications that the
claimant would not be capable of regular work are
not necessarily clear as to what he considers to
be regular.
His opinions are given moderate
weight, but based on his treatment notes from
this period and the claimant’s progression after
his corrective surgery, he would still be capable
of performing work within the parameters set
forth in the residual functional capacity above
(Exhibit 5F).
Dr. Thometz completed a Physical Impairment
Questionnaire on Residual Functional Capacity
-29-

dated August 28, 2011.
Therein, he indicated
that because of the claimant’s surgical history,
complaints of shoulder discomfort, and recent
diagnosis of bilateral cubital tunnel syndrome,
his prognosis was fair to poor and that the
claimant would not be capable of working.
He
indicated that the claimant could only lift 5 to
10 pounds with his dominant left hand and that he
could carry only 5 to 10 pounds with his left
hand, but that any repetitive motion of the left
hand would aggravate the pain. The undersigned
gives little weight to Dr. Thometz’s opinion that
the claimant cannot work as he provided
restrictions that would not totally preclude the
claimant from all work. In fact, a few months
prior to this opinion, Dr. Thomet’z [sic]
indicated in his notes that the claimant could
not return to his regular work, not that he could
not do any work at all, especially since he
continues to indicate no change in the claimant’s
condition from this indication all the way
through to his opinion rendered in August 2011.
His opinion as to the claimant’s weight lifting
restrictions is given moderate weight.
The
records indicate difficulty with numbness in the
pinky and ring finger of the left hand and
shoulder discomfort.
These complaints do not
necessarily support the claimant’s inability to
lift anything with either hand. In any event,
the claimant’s limitations have been reasonably
accounted for in the residual functional capacity
above, and based on vocational expert testimony,
he is not totally precluded from all work within
the national economy, and is therefore not
disabled (Exhibit 18F).
On September 21, 2011, Dr. Thometz then completed
a Physical Medical Source Statement indicating
that the claimant could not lift even up to 10
pounds with a number of other severe restrictions
including an inability to sit more than 10
minutes at a time, even though the records do not
ever make mention of the claimant’s difficulty
sitting, standing, or walking. Little weight is
also given to Dr. Thometz’s opinion contained in
his Medical Source Statement as they are
generally inconsistent with the objective record
and lack supporting evidence, including support
-30-

from his own treatment notes (Exhibit 21F).
(Tr. 21-22).
According to Lugo’s counsel:
Dr. Thometz has consistently reported that Lugo
required additional treatment and therapy before
he would even be ready for work hardening
/conditioning, let along [sic] be ready for
competitive employment. Unfortunately, because
of the recalcitrant behavior of the worker’s
compensation insurer, Lugo has been unable to
obtain the treatment and therapy that he has
required since January 2010. As a result, he was
still having problems from the shoulder itself as
well as from the post-surgical developments in
his left wrist and elbow.
(DE 11 at 20).

Contrary to counsel’s suggestion, Dr. Thometz’ notes

appear to mention that Lugo was not ready for work conditioning only
once.

(Tr. 380).

And, it is not clear whether Dr. Thometz was

referring to work conditioning that is specific to Lugo’s previous
work as a sheetmetal worker or work conditioning for the purpose of
being able to perform any work whatsoever.

This case involved a

worker’s compensation claim, and when Dr. Thometz refers to “regular
work” it is not clear if he is referring to Lugo’s regular work as a
sheetmetal

worker

or

work

generally

as

regularly

performed.

Ultimately, this is irrelevant though, because Dr. Thometz’ opinions
on the ultimate issue of whether Lugo can work are not entitled to
special deference.

The determination of whether Lugo is disabled

as defined under the Social Security Act is not one for Dr. Thometz
to make; it is a determination reserved to the Commissioner.

While

the ALJ must consider medical evidence of Lugo’s impairments, the
-31-

final responsibility for deciding Lugo’s RFC is reserved to the
Commissioner, and a treating physician’s opinion that the claimant is
“disabled”

or

significance.

“unable

to

work”

will

not

be

given

any

special

See Bjornson v. Astrue, 671 F.3d 640, 647-48 (7th Cir.

2012).
The only portion of Dr. Thometz’ opinions that included specific
enough limitations regarding Lugo’s function so they might be entitled
to controlling weight, if well supported and consistent with other
substantial evidence, are the opinions in the Physical Impairment
Questionnaire dated August 29, 2011, and the Medical Course Statement
dated September 21, 2011.

(Tr. 537-40; 555-60).

The ALJ noted with

specificity what weight he gave to the opinions in these reports.
With regard to the Physical Impairment Questionnaire, he gave little
weight

to

the

opinion

that

Lugo

could

not

work

because

the

restrictions given were not inconsistent with all work, and he gave
moderate weight to Dr. Thometz’ lifting restrictions.11

(Tr. 21-22).

With regard to the Physical Medical Source Statement, the ALJ gave
little weight to Dr. Thometz’ opinion in that statement because “they

11

Lugo quibbles with the ALJ’s statement that he gave
moderate weight to certain opinions of Dr. Thometz, suggesting
that it is not clear what that means. But when the ALJ’s opinion
is read as a whole, rather than just reading the excerpt that
Lugo quotes in his brief, it is clear what the ALJ meant. (Tr.
21-22). As noted above, the ALJ gave moderate weight to Dr.
Thometz’ lifting restrictions, which were 5 to 10 pounds, and the
ALJ ultimately found in his RFC that Lugo could lift only
slightly more than that, finding he can lift and carry 10 pounds
frequently and 20 pounds occasionally. (Tr. 538, 16).
-32-

are

generally

inconsistent

with

the

objective

record

and

lack

supporting evidence, including support from his own treatment notes.”
(Tr. 21-22).
Lugo also notes that the ALJ gives the most weight to Dr.
McKenna’s testimony.

Lugo argues that Dr. McKenna formed his opinion

without reviewing the evidence submitted after the first hearing, and
that, as a non-examining physician, his opinion therefore cannot be
given controlling weight.
the

ALJ’s

opinion

Contrary to Lugo’s suggestion, nothing in

suggests

that

he

gave

Dr.

McKenna’s

opinion

controlling weight in violation of the treating physician rule - he
simply gave it more weight than other opinions of record.

ALJ Kramer

did not error either in limiting the weight given to Dr. Thometz’
opinions or by placing too much weight on Dr. McKenna’s opinion.

The ALJ’s Credibility Assessment
Lugo argues that the ALJ improperly discredited his testimony in
violation of SSR 96-7p by relying on meaningless boilerplate language
without providing adequate explanation.
positioned

to

judge

a

claimant’s

Because the ALJ is best

truthfulness,

this

Court

will

overturn an ALJ’s credibility determination only if it is patently
wrong.

Skarbek v. Barnhart, 390 F.3d 500, 504 (7th Cir. 2004).

However, when a claimant produces medical evidence of an underlying
impairment, the ALJ may not ignore subjective complaints solely
because they are unsupported by objective evidence.

-33-

Schmidt v.

Barnhart, 395 F.3d 737, 745-47 (7th Cir. 2005); Indoranto v. Barnhart,
374 F.3d 470, 474 (7th Cir. 2004) (citing Clifford v. Apfel, 227 F.3d
863, 872 (7th Cir. 2000)).
Further, “the ALJ cannot reject a claimant’s testimony about
limitations on [his] daily activities solely by stating that such
testimony is unsupported by the medical evidence.”

Id.

Instead, the

ALJ must make a credibility determination that is supported by record
evidence and sufficiently specific to make clear to the claimant, and
to any subsequent reviewers, the weight given to the claimant’s
statements and the reasons for the weight.

Lopez v. Barnhart, 336

F.3d 535, 539-40 (7th Cir. 2003).
In evaluating the credibility of statements supporting a Social
Security application, an ALJ must comply with the requirements of SSR
96-7p.

Steele v. Barnhart, 290 F.3d 936, 941-42 (7th Cir. 2002).

This ruling requires ALJs to articulate “specific reasons” behind
credibility
individual’s

evaluations;
allegations

the

ALJ

have

cannot

been

allegations are (or are not) credible.”

merely

considered”

state
or

that
that

“the
“the

SSR 96-7p.

Here, ALJ Kramer determined 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. 20). Nearly identical language

-34-

was criticized by the Seventh Circuit in Bjornson v. Astrue, 671 F.3d
640, 645 (7th Cir. 2012).

That criticism will not be repeated here.

The boilerplate language utilized by ALJ Kramer is unhelpful at best,
and by itself, such language is inadequate to support a credibility
finding.

See Richison v. Astrue, No. 11-2274, 2012 WL 377674 (7th

Cir. 2012).
However, where boilerplate language such as that utilized by the
ALJ is accompanied by additional reasons, a credibility determination
need not necessarily be disturbed if otherwise adequate. Id. In this
case, the ALJ’s opinion contains more than mere boilerplate language
in support of his credibility determination. Specifically, the ALJ’s
opinion includes the following:
When evaluating the claimant’s credibility as it
relates to his assertions, the undersigned takes
into consideration various factors, including the
objective medical evidence, statements relating
to alleged pain, medical treatment, medications
taken, and any opinion evidence (see Social
Security Ruling 96-7p).
Overall the claimant’s allegations were generally
credible. However, there were some discrepancies
that detracted from his credibility as well. For
example, the claimant’s mental status examination
as mentioned above limits him greatly, almost to
the point of an inability to function on his own.
However, the claimant has shown such abilities.
Additionally, though he was diagnosed with
bilateral cubital tunnel syndrome, he only
alleged symptomatology in one of his hands.
Though this is not completely unusual, it is out
of character and calls into question the validity
of the claimant’s subjective complaints as pain
is not a symptom that can be measured or
quantified.

-35-

(Tr. 20-21).
The issue this Court must decide is whether the ALJ’s stated
reasons are sufficient.

In other words, is there a logical bridge

between the ALJ’s stated reasons and the conclusion that Lugo is not
fully credible?

Lugo claims the ALJ’s stated reasons for finding him

less than fully credible are inadequate because the ALJ has claimed
discrepancies exist where they do not.
First, the ALJ noted that Lugo’s abilities were greater than
those set forth in the mental status examination.

ALJ Kramer is

referencing the mental status exam performed by Dr. Amdur in August
of 2011.

Lugo notes that: “The ALJ makes that statement without

acknowledging, as did Dr. Brooks, that Plaintiff’s testimony was most
consistent with the latest mental status examination [meaning Dr.
Amdur’s report from August of 2011] and also the fact that pain and
a sleep disorder can cause mental decompensation.”

(DE 11 at 23).

Substantial evidence of record supports the ALJ’s conclusion that
Lugo’s demonstrated abilities were inconsistent with the mental status
exam performed by Dr. Amdur in August of 2011.

While it is possible

that Lugo’s condition changed significantly between Dr. Walters’
report in June of 2010 and Dr. Amdur’s report in August of 2011, the
evidence is not so strong that the ALJ was precluded from relying on
this

discrepancy

credibility.

in

reaching

his

decision

regarding

Lugo’s

That Dr. Brooks conceded pain and sleep disorder can

cause mental decompensation does not demonstrate that is what happened

-36-

here.

This Court might have reached a different conclusion, but that

is not grounds for overturning the ALJ’s decision.

See Farrell v.

Sullivan, 878 F.2d 985, 990 (7th Cir. 1989).
Next, Lugo takes issue with the ALJ’s opinion that Lugo’s having
only left-sided symptoms despite his diagnosis of bilateral cubital
tunnel syndrome reflects negatively on his credibility. According to
Lugo: “[t]he ALJ makes a giant leap to speculatively assert that in
this case, having only left-sided symptoms in light of a diagnosis of
bilateral cubital tunnel, is out of character and a basis to question
the validity of Plaintiff’s subjective complaints.”

(DE 11 at 23).

A review of the record shows that this leap finds at least some
support in the evidence.

Dr. McKenna, a medical expert, testified at

length and explained that he found “it a little troubling that we have
symmetrical objective findings and asymmetrical subjective findings.”
(Tr. 89).

In formulating an RFC, Dr. McKenna indicated that he was

taking Lugo’s complaints of pain into account “to a certain extent,
but not .... at absolute 100 percent, full face value, on account of
the discrepancy.”

(Tr. 90).

The ALJ did not make reference to Dr.

McKenna’s testimony in making his credibility determination.

His

opinion would have been stronger if he had, but in light of the
medical

evidence,

it

cannot

be

said

that

the

ALJ’s

speculative or the “giant leap” that counsel describes.

logic

is

In light of

the evidence of record, this Court cannot say that ALJ Kramer’s
reliance on the discrepancy between the medical evidence of bilateral

-37-

cubital tunnel syndrome while symptoms were only unilateral was
erroneous.

See Sienkiewicz v. Barnhart, 409 F.3d 798, 804 (7th Cir.

2005)(“An ALJ may not disregard an applicant’s subjective complaints
of pain simply because they are not fully supported by objective
medical evidence ...[b]ut a discrepancy between the degree of pain
claimed by the applicant and that suggested by medical records is
probative of exaggeration.”).
The ALJ could have done a

better

job

of

annunciating his

reasoning, but because substantial evidence of record supports the
ALJ’s determination, this Court finds that the ALJ’s credibility
determination is not patently wrong.

The ALJ’s Consideration of Lugo’s Mental Impairment
Lugo argues that the ALJ’s assessment of his depression was
erroneous and requires remand.

The ALJ found that Lugo does suffer

from depression, but that it is non-severe.

(Tr. 14-15).

In so

finding, he chose to give little weight to the report of Dr. Amdur,
who concluded that Lugo was suffering from major depression so severe
that he would be unable to relate effectively with co-workers and
supervisors and unable to tolerate work stressors.

(Tr. 14, 532-36).

In essence, Lugo’s argument that the ALJ did not properly assess his
mental impairments amounts to a challenge to the ALJ’s rejection of
Dr. Amdur’s opinion.
In determining that Lugo’s depression was not severe, ALJ Kramer
-38-

considered several factors.

He noted that Lugo did not initially

allege any mental impairment when he applied for DIB.

(Tr. 14).

He

also noted Lugo’s history of psychological treatment, or lack thereof.
(Id.). More specifically, the ALJ noted that Lugo sought therapy from
February through July of 2008 and was diagnosed with an adjustment
disorder

with

depressed

mood.

(Id.).

The

ALJ

considered

a

psychological consultative evaluation performed by Irene Walters,
Psy.D on June 29, 2010.

(Id.).

Dr. Walters did not diagnose Lugo

with any mental impairment and assigned him a Global Assessment of
Functioning (“GAF”) score of 65.12

Two months after Dr. Walters’

examination, on August 11, 2010, Dr. Thometz noted that Lugo had been
feeling

anxious

consultation.
In

August

evaluation.

and

depressed

and

recommended

a

psychological

(Tr. 455, 466).
of

(Id.).

2011,

Lugo

saw

Dr.

Amdur

for

a

psychiatric

The ALJ noted that Dr. Amdur’s report indicated

that Lugo had been experiencing depression for six months, and that
he reported no depression prior to his 2009 injury.

The ALJ noted

that Dr. Amdur formulated his opinion after only a one-time visit and
that Lugo had not sought any other mental health treatment for his
depressive symptoms.

(Tr. 14).

The ALJ noted that Dr. Amdur found

that Lugo suffered from numerous extreme and marked limitations, but

12

GAF is a scoring system for measuring an individual’s overall
functional capacity. A GAF of 65 would represent mild symptoms or some
impairment in social, occupational, or school functioning.
Diagnostic and
Statistical Manual of Mental Disorders, DSM-IV-TR, 32-34 (4th ed. 2000).

-39-

that

there

limitations.

were

no

medical

(Tr. 14-15).

records

that

supported

such

severe

Specifically, the ALJ noted that:

As there are no records to support such severe
limitations and these opinions are based on a
one-time visit with the claimant, Dr. Amdur’s
opinions are given little weight.
They are
inconsistent with the objective record and are
based primarily on the claimant’s subjective
allegations. However, giving the claimant the
significant benefit of the doubt, the undersigned
finds that he does suffer from depression, but
not to the degree indicated by Dr. Amdur (Exhibit
20F).
(Tr. 15).
The ALJ further noted that, “the claimant’s medically
determinable mental impairment of depression does not cause more than
minimal limitation in the claimant’s ability to perform basic mental
work activities[.]” (Tr. 15).
Lugo’s counsel correctly points out that Dr. Amdur’s opinion
should not be rejected solely because he is a one-time examiner.
After all, Dr. Walters also only examined Lugo once but her opinion
was not rejected by the ALJ.

But, the length of treatment is one

valid consideration in determining what weight to give to a medical
opinion.

In determining that Dr. Amdur’s opinion was entitled to

little weight, it was proper for ALJ Kramer’s to consider that Lugo
saw Dr. Amdur only once, along with other factors. Because ALJ Kramer
did not base his decision on the weight to be given Dr. Amdur’s
opinion on the nature of their treatment relationship alone, his
consideration of that factor was not error.
Lugo’s counsel points out that Dr. Brooks, whose testimony the
-40-

ALJ credited, admitted that an individual who is in pain and not
sleeping can experience mental decompensation.

(Tr. 41-42).

Dr.

Brooks did concede this, but the fact that this can occur does not
mean that it did occur here.

Dr. Brooks did not opine that Lugo’s

condition had deteriorated due to pain and lack of sleep; he only
conceded that pain and lack of sleep can cause deterioration.
Lugo’s counsel also points out that Dr. Amdur’s report was very
detailed, and that it is consistent with Dr. Thometz’ notes from
August 11, 2010, noting that Lugo was anxious and depressed and
recommending a psychological evaluation. (Tr. 455, 466). An ALJ need
not accept a report merely because it is detailed.

And, as for Dr.

Thometz’ report that Lugo was anxious and depressed, this is not
necessarily inconsistent with the ALJ’s finding - the ALJ conceded
that Lugo suffered depression, albeit non-severe.

There is a

logical bridge between the evidence and the ALJ’s decision to give Dr.
Amdur’s report little weight.

While a different ALJ may have viewed

the evidence differently, this Court cannot say that ALJ Kramer
committed reversible error in evaluating Lugo’s mental impairments.

CONCLUSION
For the reasons set forth above, the Commissioner of Social
Security’s final decision is AFFIRMED.

DATED: July 23, 2014

/s/RUDY LOZANO, Judge
United States District Court
-41-