Scott Louk v Commissioner of Social Security
OPINION AND ORDER: The decision of the Commissioner is AFFIRMED. Signed by Judge Rudy Lozano on 7/29/2015. (lhc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
) NO. 3:14–CV-01602
HELEN M. LOUK,
CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL
OPINION AND ORDER
Commissioner of Social Security’s decision denying Disability
Insurance Benefits to Plaintiff Helen M. Louk.
For the reasons
set forth below, the decision of the Commissioner is AFFIRMED.
On November 10, 2011, Scott Allen Louk (“Louk”) filed an
application for Social Security Disability Benefits (“DIB”) under
Title II of the Social Security Act, 42 U.S.C. section 401, et
Louk also applied for Supplemental Security Income (“SSI”)
under Title XVI of the Social Security Act, 42 U.S.C. section
1381, et. seq.
Louk alleged that his disability began on October
The Social Security Administration (“SSA”) denied his
Louk requested a hearing, and on January 30, 2013, Louk
appeared with his attorney at an administration hearing before
Administrative Law Judge (“ALJ”) David R. Bruce.
“Plaintiff”), and vocational expert (“VE”) Ronald Malik.
February 28, 2013, the ALJ issued a decision denying Louk’s
claim, finding him not disabled because he was capable of making
a successful adjustment to other work that exists in significant
numbers in the national economy.
Louk requested that the Appeals Council review the ALJ’s
decision, but that request was denied.
Accordingly, the ALJ’s
decision became the Commissioner’s final decision.
See 20 C.F.R.
Louk initiated the instant action for judicial
review of the Commissioner’s final decision pursuant to 42 U.S.C.
Louk passed away on June 25, 2014, as a result
of a myocardial infarction.
Thereafter, Mrs. Louk was
substituted as the plaintiff in this matter.
Louk was born in December 1967, and was 43 years old on the
alleged disability onset date of October 11, 2011.
He had a high school education.
relevant work included employment as a pressure tester and a
(Tr. 43, 64-65.)
Louk alleged the following
conditions limited his ability to work: a spot on the side of his
brain, residuals from a stroke in 2001, extreme aggravation and
concentration, and a perceptual impairment.
The medical evidence can be summarized as follows:
Louk suffered a stroke in 2001.
On November 29,
2001, Louk underwent magnetic resonance imaging (“MRI”) of his
in Louk’s brain.
The MRI revealed damage to the structures
Nearly a decade later, on July 30, 2011, Louk was taken to
the emergency room after a seizure-like episode (syncope) at WalMart, where he worked as a greeter.
(Tr. 42, 233, 238.)
was prescribed rest but could return to work on August 2, 2011.
The emergency room doctor indicated that Louk should
not drive a motor vehicle “for now” and that he should follow up
in a few days.
After Louk applied for DIB and SSI in November 2011, Louk
submitted a function report to the state agency.
bending, standing, reaching, walking, sitting, kneeling, stair
climbing, or using his hands.
as needed” without stopping for rest.
He could walk “as far
that he lived alone, prepared his own meals (such as frozen
dinners), did not have any problems with personal care, and did
not need help with household tasks such as laundry and sweeping.
Louk was able to drive alone, shop for himself,
and could pay bills, count change, and handle bank accounts.
completing tasks, following instructions, or getting along with
In November and December 2011, Dr. Frank Choate, Psy.D.,
conducted a consultative psychological evaluation during which he
Louk had a full-scale IQ score of 75, which
Louk had a 31-point difference between his
Verbal Comprehension Index and his Perceptual Reasoning Index,
indicated that while Louk’s ability to understand or comprehend
understands is “severely limited.”
Louk’s Working Memory
Index score of 71 placed him in the borderline range.
Louk’s score of 65 on the Processing Speed Index placed him
within the “Extremely Low” range.
Louk took the Trial
Making Test Part B, which 90% of people can complete in less than
Louk worked for three minutes and forty-
five seconds before he had to stop due to confusion, having
completed only one-fifth of the test.
Dr. Choate noted
likely due to a stroke (Tr. 282), but he did not opine that these
indications affected Louk’s ability to work.
(See Tr. 283.)
learning disorder, and borderline intellectual functioning.
He gave Louk a Global Assessment of Functioning (“GAF”) of
53, which reflects moderate symptoms or difficulties in social,
occupational, or school functioning.
found that Louk had “definite memory impairment, both short and
Louk’s ability to recall things after a
20-30 minute delay was very impaired.
repetition and possibly frequent reminders to do so.
noted that Louk had a “fairly successful work history,” and
opined that Louk “would do best with simple repetitive work,” but
could not take on numerous tasks.
recommended that Louk be placed in work with simple repetitive
steps, and that Louk have a list of duties that he could check
off as he completed them, or some manner of reminder.
finding a job.
In December 2011, Dr. Stacia Hill, Ph.D., a state agency
forms used for assessing mental impairments.
Hill noted that she gave Dr. Choate’s medical opinion weight and
that it was consistent with other information in the file.
Dr. Hill indicated that Louk’s mental impairments did not
meet or medically equal a listed impairment.
assigned ratings of mild restriction in Louk’s activities of
functioning; moderate difficulties in maintaining concentration,
Dr. Hill concluded that Louk was “Not Significantly Limited”
in 18 categories, including remembering and carrying out very
short and simple instructions, remembering locations and worklike procedures, carrying out simple instructions, maintaining
She found that Louk was “Moderately
Limited” in understanding and remembering detailed instructions
and carrying out detailed instructions. (Tr. 299-300.)
explained that “in terms of level of severity of functioning,
[activities of daily living] appear wnl [within normal limits]
and attention/concentration are moderately impacted but appear
reasonable for simple tasks.”
Dr. Hill opined that
Louk could “understand, remember, and carry-out simple tasks,”
“relate on at least a superficial basis on an ongoing basis with
periods of time to complete tasks,” and “manage the stresses
involved with simple work.”
opinion on January 27, 2012.
William Shipley, Ph.D., a
On December 27, 2011, Dr. Coulter performed a consultative
indications of musculoskeletal or neurological problems, and no
range of motion limitations.
Louk had full muscle
strength and tone with no atrophy; normal gait; normal standing
static balance; negative supine and seated straight-leg raise
tests; normal grip strength; full ability to perform fine and
gross movements; and no motor loss.
opined that Louk could maintain balance during ambulation while
carrying objects less than 10 pounds; lift and carry less than 10
pounds and more than that occasionally; and stand or walk 2 hours
in an 8 hour day.
He concluded that Louk’s “primary
disability is learning disability and anxiety secondary to a
information, motivation, concentration, interacting with others.”
On December 30, 2011, state agency medical consultant Dr.
Richard Wenzler, M.D., opined that Louk had no severe physical
Dr. Wenzler noted that Louk had a
normal gait and neurological exam, no range of motion limits,
Dr. M. Brill, M.D., a state agency medical
consultant, affirmed Dr. Wenzler’s opinion on January 30, 2012.
In March 2012, Louk provided an assessment of his daily
functioning indicating that his stroke caused difficulty with
He reported that he was unable
to cook his own meals and that he relied on his mother for
grocery shopping and food preparation.
Louk also claimed
In May 2010 and December 2011, Louk was referred to Carol
McGrew, Job Development Specialist.
assisted Louk in obtaining a position at Wal-Mart as a freezer
In a one-page report, Ms. McGrew stated
that Louk “was unable to perform this position at an accurate and
fast-paced level” in spite of accommodations and patient managers
Ms. McGrew noted Louk’s difficulties
with “follow through, memory and speed,” and that Louk was unable
to maintain employment as a Wal-Mart Greeter because the position
According to Ms. McGrew, Louk was
discharged because of his “inability to do the jobs.”
different training personalities,” which “is a great barrier and
will definitely impact future job developments.”
Louk testified that he last worked on October 11, 2011, when
he was laid off for being too slow.
Louk testified that he lived in his own
place, cleaned, took care of his personal needs, read Stephen
King novels, watched television, and visited with friends and
Louk also testified regarding his prior
(Tr. 42-46, 53-54.)
Mrs. Louk testified that she saw Louk on holidays and other
occasions, and that she spoke with him approximately ten times a
day. (Tr. 55.)
She testified that he had very poor memory, that
his judgment and coordination were impaired, that it was hard for
him to learn new things and that he was slow in doing things.
After Louk and Mrs. Louk testified, the ALJ asked the VE to
consider a hypothetical individual who was the same age as Louk
and had the same work experience and education.
VE was asked to assume the following limitations:
This person is limited to work at all exertional
levels. However I would have them not climb ladders,
ropes and scaffolds.
No exposure to unprotected
heights, moving mechanical parts or operating a motor
I would limit this person further to simple, routine
and repetitive tasks and not at a production rate pace
like assembly line work but could perform goal oriented
This person should also have a list of duties
that can be checked off as the tasks are completed.
. . . I would further limit this person in terms of
interacting with supervisors, they should not have
multiple supervisors. Shouldn’t be in a position where
they have to have multiple people checking on them.
Should not have any jobs that require socializing or
bonding with the team in terms of interaction with coworkers. And any interaction with the public should be
brief and superficial, not an integral part of the job.
The VE testified that such a person could not
perform Louk’s past work.
The VE noted that because
limitation would restrict this person to light work.
VE opined that the hypothetical person could perform light jobs
in the national economy, such as small product assembler (DOT #
739.687-030); wiring assembler (DOT # 726.684-022); and packager
(DOT # 726.687-038).
Louk’s counsel asked the VE about the vocational impact of
test scores indicating low processing speeds.
testified that a score of 65 “does not mean that the individual
“individuals with lower processing scores than that, that went
into competitive employment.”
composite score of 71.
Louk’s counsel also
The VE responded that low
processing and memory speeds would make employment “much more
difficult” but noted that he “placed individuals with scores
lower than that, that maintained a long term employment.”
Review of Commissioner’s Decision
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 .
. . .”
Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support
Richardson v. Perales, 402 U.S. 389, 401 (1971)
(citation omitted); see Moon v. Colvin, 763 F.3d 718, 721 (7th
Cir. 2014) (noting “[t]his deferential standard of review is
determining whether substantial evidence exists, the Court shall
examine the record in its entirety, but shall not substitute its
reweighing the evidence.
(7th Cir. 2003).
See Jens v. Barnhart, 347 F.3d 209, 212
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 ex rel. Smith
v. Apfel, 167 F.3d 369, 373 (7th Cir. 1999).
As a threshold matter, for a claimant to be eligible for DIB
or SSI benefits under the Social Security Act, the claimant must
establish that he is disabled.
42 U.S.C. § 423(d)(1)(A) and
To qualify as being disabled, the claimant must be
unable “to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
42 U.S.C. § 423(d)(1)(A).
To determine whether a
performs a five-step evaluation:
Is the claimant performing substantially
If yes, the claim is
disallowed; if no, the inquiry proceeds to
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
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.
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
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.
See 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 case, the ALJ found that Louk had not engaged in
substantial gainful activity since October 11, 2011, his alleged
The ALJ found that Louk suffered from the
functioning, cognitive disorder, and learning disorder (20 C.F.R.
§§ 404.1520© and 416.920(c).
The ALJ further found that
Louk did not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20
C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925
The ALJ made the following Residual
Functional Capacity (“RFC”) determination:
[T]he claimant has the [RFC] to perform a full range of
work at all exertional levels but with the following
The claimant should never
climb ladders, ropes, or scaffolds.
should avoid all exposure to unprotected heights and
moving mechanical parts.
The claimant should never
operate a motor vehicle. The claimant can understand,
remember, and carry out simple, routine, and repetitive
tasks and use judgment to make simple work-related
The claimant is not able to perform at a
production rate pace but can perform goal-oriented
work. The claimant must have a list of duties that he
can check off as the tasks are completed. The claimant
needs a job that does not have multiple supervisors;
cannot perform a job that requires socialization or
bonding with a team; and should have only brief and
superficial interaction with the public.
Based upon Louk’s RFC, the ALJ found that Louk was
unable to perform his past relevant work as a greeter/stocker,
pressure tester and die setter.
However, the ALJ
found that Louk was capable of performing other work that exists
in significant numbers in the national economy, including work as
a small products assembler, wire assembler, and packager.
Plaintiff believes that the ALJ committed several errors
First, Plaintiff argues that the Appeals
Council’s denial of the request for review is not supported by
Second, Plaintiff asserts that the ALJ
Third, Plaintiff claims that the ALJ’s RFC
entirely credible is not supported by substantial evidence.
Appeals Council’s Denial of Request for Review
Plaintiff argues that the Appeals Council’s denial of the
request for review is not supported by substantial evidence.
More specifically, Plaintiff claims that Louk’s 2001 MRI - which
Louk did not present to the ALJ – was important medical evidence.
Louk presented the 2001 MRI to the Appeals Council.
The 2001 MRI
was acknowledged in the Appeals Council’s decision, and was added
to the record as Exhibit 10F. (Tr. 1-2, 310-11.)1
Plaintiff claims that the Appeals Council failed to submit
the 2001 MRI to the medical scrutiny it should have, because it
was “new and potentially decisive medical evidence.”
(DE# 15 at
13 (citing Goins v. Colvin, 764 F.3d 677, 680 (7th Cir. 2014).)
chronological sense,” as it was taken twelve years before the
According to Plaintiff, the MRI is new and material evidence of
“multiple vascular distributions” of Louk’s brain injury due to
his stroke, and should have resulted in a remand to the ALJ for
further consideration pursuant to 20 C.F.R. § 405(g).
The Commissioner responds that the Appeals Council correctly
determined that the 2001 MRI did not render the ALJ’s decision
contrary to the weight of the evidence, and properly denied
Louk’s request for review.
The regulation governing Appeals
Council review provides that:
Plaintiff maintains that the ALJ was “playing doctor” when he noted there was
“very little medical evidence in the record,” and “assumed that there is medical
treatment for Mr. Louk’s condition.” (DE# 15 at 12.) Plaintiff’s argument is
without merit. The ALJ’s decision does not assert that treatment exists for
Louk’s condition. Rather than making an independent medical finding, the ALJ
merely stated a fact about the record before him.
If new and material evidence is submitted, the Appeals
Council shall consider the additional evidence only
where it relates to the period on or before the date of
the [ALJ] hearing decision. The Appeals Council shall
evaluate the entire record including the new and
material evidence submitted if it relates to the period
on or before the date of the [ALJ] hearing decision.
It will then review the case if it finds that the
[ALJ]’s action, findings, or conclusion is contrary to
the weight of the evidence currently of record.
20 C.F.R. § 404.970(b).
A district court’s review of “whether
the Council made an error of law in applying this regulation is
Perkins v. Chater, 107 F.3d 1290, 1294 (7th Cir.
1997) (citations omitted).
Under this regulation, the first step is for the Appeals
Council to determine whether the additional evidence relates to
the appropriate time period, and is really “new” and “material.”
If the evidence is qualifying, the Appeals Council
concludes that the ALJ’s action “appears to be contrary to the
weight of the evidence ‘currently’ of record — that is, the old
evidence plus the new submissions — only then does it proceed to
a full review of the case.”
When the Appeals Council finds post-decision evidence to be
“new, material, and relates to the period at issue, but does not
Appeals and Litigation Law Manual (“HALLEX”).
This procedure calls for the Appeals Council
to designate the additional evidence as an exhibit, and explain
in the denial notice that the evidence did not provide a basis
1:14–cv–01797, 2015 WL 3886029, at *13 (S.D. Ind. June 22, 2015)
(explaining that if the ALJ’s action is not contrary to the
weight of the evidence, then the Appeals Council prepares a
denial notice and the review ceases); cf. HALLEX I-3-5-20(A)
determines is not new, material, or related to the period at
issue shall not be designated as an exhibit).
In this case, the Appeals Council added the 2001 MRI as an
exhibit to the record, and stated in part:
“In looking at your
case, we considered . . . the additional evidence . . . [and]
found that this information does not provide a basis for changing
the [ALJ’s] decision.”
(Tr. 1-2; see Tr. 4, 310-11.)
Seventh Circuit has held that this language “is not as clear as
it might be,” Farrell v. Astrue, 692 F.3d 767, 771 (7th Cir.
ambiguity in the Appeals Council’s order.
By designating the
record, the Appeal Counsel indicated its conclusion that Louk
satisfied the first step, that is, that the 2001 MRI related to
the proper time period and was new and material.
See Pottorff v.
Colvin, No. 1:13-CV-931, 2014 WL 4636538, at *5 (S.D. Ind. Sept.
16, 2014) (“[T]he Appeals Council’s decision to add the evidence
to the exhibit list itself demonstrates that it considered the
evidence to be new material and time relevant.”); Brown, 2015 WL
3886029, at *14.
“This, in turn, implies that the Council did
proceed to the second step of its analysis.”
Appeals Council accepted the 2001 MRI as qualifying evidence, at
designated the new evidence as an exhibit and added it to the
record, “the Appeals Council did in fact conclude that the newly
submitted evidence was qualifying . . . [and] must have proceeded
to the second step”) (emphasis in original; citations omitted).
The Appeals Council’s decision to deny review, as opposed to
refuse to consider additional evidence, is within the discretion
of the Appeals Council, and is not subject to review by this
See Perkins, 107 F.3d at 1294; Brown, 2015 WL 3886029, at
*14 (“[A] district court cannot review the Appeals Council’s
decision at step two.”) (citation omitted).
Therefore, the Court
cannot remand on the basis of the Appeals Council’s decision.2
The Commissioner also maintains that even if the Appeals
Council found that the 2001 MRI was non-qualifying at step one,
the error was harmless because the Appeals Council could not
reasonably find that the 2001 MRI rendered the ALJ’s decision
contrary to the weight of the evidence.
The Court agrees.
error was not prejudicial because the 2001 MRI does not undermine
the ALJ’s finding about Louk’s ability to work after he suffered
After the claimant’s stroke, [he] was able to work for
Fulton Industries for seven years as a pressure tester.
This work was semi-skilled (SVP3) at the heavy
exertional level. The claimant testified that he did a
good job and did not have a problem there until he was
moved to another part of the factory with a different
The fact [he] was able to perform such work
after his stroke strongly suggests that the residuals
of his stroke would not currently prevent work.
The 2001 MRI results do not indicate any work-related
limitations of function.
See Klahn v. Colvin, No. 13-165, 2014
Plaintiff argues in passing that the Court should remand this case pursuant
to sentence six of 42 U.S.C. § 405(g). (DE# 15 at 14.) This sentence allows
the Court to remand the case “upon a showing that there is new evidence which
is material and that there is good cause for the failure to incorporate such
evidence into the record in a prior proceeding[.]” 42 U.S.C. § 405(g). For
sentence six purposes, “new” means evidence “not in existence or available to
the claimant at the time of the administrative proceeding.” Perkins, 107 F.3d
at 1296 (citations omitted). Plaintiff submitted the 2001 MRI to the Appeals
Council. The evidence existed at the time of the “administrative proceeding,”
and accordingly is not “new” for the purposes of sentence six. See DeGrazio
v. Colvin, 558 F. Appx. 649, 652 (7th Cir. 2014) (“The evidence . . . was not
new for purposes of sentence six because it already had been presented to the
degenerative disease identified on an MRI “does not by itself
show functional limitation or pain.”).
Louk worked for seven
years after his stroke, and did not proffer medical evidence that
his brain functioning had deteriorated in the interim.
Warren v. Colvin, 565 Fed. Appx. 540, 544 (7th Cir. 2014) (noting
“intellectual abilities are generally presumed to remain stable
The Court finds that the 2001 MRI did not make the
Therefore, the Appeals Council did not harmfully err in denying
Louk’s request for review of the ALJ’s decision.
ALJ’s Evaluation of Opinion Evidence
Plaintiff argues that the ALJ failed to consider the factors
medical opinions of the examining and non-examining physicians in
Pursuant to 20 C.F.R. section 404.1527(c)(1), the
opinions of examining physicians are entitled to greater weight
than those of non-examining physicians.
While an ALJ generally
affords “more weight to the opinion of a source who has examined
a claimant than to the opinion of a source who has not, the
consistency with and objective medical support in the record; the
quality of the explanation the source gave for the opinion; and
the source’s specialization.”
Givens v. Colvin, 551 Fed. Appx.
855, 860 (7th Cir. 2013) (internal quotation omitted).
404.1527(c)(2), (4) (medical evidence may be discounted if it is
internally inconsistent or inconsistent with other evidence).
Plaintiff argues that the ALJ did not afford the opinion of
examining physician Dr. Coulter sufficient weight.
opined that Louk was able to maintain balance during ambulation
while carrying objects weighing less than ten pounds; was able to
occasionally; and was able to stand/walk two hours in an eighthour workday.
(Tr. 21, 306.)
The ALJ afforded Dr. Coulter’s
consistent with [Louk’s] normal examination.”
Dr. Coulter’s examination, Louk “had a normal gait; a normal
neurological examination; and full range of motion in all joints”
and “was able to perform fine and gross movements and his muscle
strength was grossly normal.”
(Id.; see Tr. 304-06.)
finds that the ALJ properly gave Dr. Coulter’s opinion little
1:13–cv–01694, 2015 WL 224767, at *8 (S.D. Ind. Jan. 15, 2015)
(concluding that “the ALJ properly gave the report little weight
supported by other evidence in the record”); Schrader v. Colvin,
No. 13–2101, 2014 WL 4375930, at *3 (C.D. Ill. Sept. 4, 2014)
(approving ALJ’s decision to give little weight to examining
physician’s opinion that was inconsistent with “normal findings
on examination” and “other evidence of record”).
Drs. Wenzler and Brill
Non-examining medical consultant Dr. Wenzler determined that
Louk was not severely physically limited, and Dr. Brill concurred
consistent with Louk’s medical records, Dr. Coulter’s objective
findings of a normal examination, and Louk’s testimony.
Plaintiff claims that these opinions are not consistent
with this evidence, but points to no evidence or testimony in the
record indicating that Louk had any severe physical limitation.
(DE# 15 at 15-16.)
As such, the Court finds that the ALJ did not
err in affording great weight to these opinions.
performed a psychological evaluation of Louk.
The ALJ found that
Dr. Choate “was not a treating physician” and “afforded some
weight” to his opinion.
Plaintiff claims that the ALJ
erred by not affording greater weight to Dr. Choate’s opinion and
objective test results, and by failing to evaluate Dr. Choate’s
objective medical evidence as required by regulations.
C.F.R. § 404.1529(c)(2) (“we will consider [objective medical
But the ALJ did consider Louk’s low scores from the
(addressing Louk’s scores from Weschler Adult Intelligence ScaleIV test, full-scale IQ test, and Weschler Memory Scale-IV test).)
While Dr. Choate concluded that Louk’s ability to recall things
after a 20-30 minute delay was very impaired, he believed that
Louk could learn with repetition and frequent reminders.
24); see Novy v. Astrue, 497 F.3d 708, 709-10 (7th Cir. 2007)
(noting “persons with an IQ in the 60s (or even lower) may still
be able to hold a full-time job”).
Dr. Choate opined that Louk
numerous tasks, since learning is “excruciatingly difficult” for
him, and suggested that his jobsite provide a list of duties for
recommendations into Louk’s RCF assessment.
(See, e.g., Tr. 23
(incorporating lists of duties Louk can check off as tasks are
completed into RFC), 26 (acknowledging the incorporation of Dr.
As such, the Court finds that the ALJ
did not err in affording Dr. Choate’s opinion some weight.
Drs. Hill and Shipley
Plaintiff also argues that the ALJ erred by affording the
opinions of non-examining psychological consultants Dr. Hill and
Shipley substantial weight.
An ALJ may “give substantial weight
to the testimony of a medical advisor even though the advisor has
determination is supported by substantial evidence.
v. Bowen, 867 F.2d 1040, 1043 (7th Cir. 1989) (citation omitted);
see Ketelboeter v. Astrue, 550 F.3d 620, 624-25 (7th Cir. 2008)
(affirming decision to give more weight to opinions of nonexamining
substantial if it is “sufficient for a reasonable person to
accept as adequate to support the decision.”
F.3d at 624 (citation omitted).
Here, Dr. Hill reviewed the file and determined that Louk
can “understand, remember and carry-out simple tasks”; “relate on
at least a superficial basis on an ongoing basis with co-workers
and supervisors”; “attend to task for sufficient periods of time
to complete tasks”; and “manage the stresses involved with simple
(Tr. 301; see Tr. 26.)
Dr. Shipley affirmed Dr. Hill’s
substantial weight to these opinions, noting that while they were
from non-examining and non-treating expert sources, they were
consistent with the record as a whole and based on their detailed
knowledge of the standard of disability as set forth by the
Plaintiff argues that while Dr. Hill’s report claims to give
weight to Dr. Choate’s report, she misstates the test results,
Plaintiff asserts that Dr. Hill’s summary conclusions indicate
that Louk’s mental condition was less severe than Dr. Choate’s
test results. For example, Dr. Hill’s conclusion that Louk was
“not significantly limited” in several areas of mental ability
impairment,” and “noticeably limited” concentration.
Tr. 299 with Tr. 281-283.)
However, Dr. Hill’s conclusions were not based solely on Dr.
Choate’s report, but rather, were “derived from the evidence in
Dr. Hill noted that Dr. Choate’s medical
opinion was consistent with other information in the file, and
that she agreed with Dr. Choate’s medical opinion.
The medical opinions of Drs. Hill and Choate appear consistent.
After interviewing Louk, administering tests, and considering
Louk’s low test scores, Dr. Choate did not opine that Louk was
unable to work.
See 20 C.F.R. Pt. 404, Subpt. P, App. 1, §
12.00(D)(6)(a) (noting that intelligence tests “are only part of
comment on whether the scores are consistent with the claimant’s
“degree of functional limitation”).
Rather, Dr. Choate’s report
indicates that while Louk had memory issues, he was able to do
simple tasks with certain limitations.
He opines that “[d]ue to
his memory issues, [Louk] would do best in a job which had simple
Dr. Hill similarly opined that
appear reasonable for simple tasks.”
The Court finds
that the ALJ did not err in affording the opinions of Drs. Hill
and Shipley substantial weight.
ALJ’s RFC Finding
evidence in the record.
See SSR 96–8p; Pepper v. Colvin, 712
discussion of the issues need not contain a complete written
evaluation of every piece of evidence”).
Terry v. Astrue, 580 F.3d 471, 475 (7th Cir. 2009)
The ALJ must build the
Moreover, the ALJ must orient the VE to the
Astrue, 627 F.3d 614, 619 (7th Cir. 2010).
Here, the ALJ found that Louk had the RFC to perform a full
range of work at all exertional levels.
argues that the RFC assessment is erroneous because the ALJ did
“indications of problems with fine motor skills, . . . likely due
to [Louk’s] stroke” during his psychological examination (Tr.
282), while examining physician Dr. Coulter indicated that Louk
was “able to perform fine and gross movements.
No motor loss.”
(Tr. 306; see also Tr. 307 (Dr. Wenzler’s opinion of “normal fine
The ALJ’s decision does not address Dr.
“[A]n ALJ is not required to discuss every snippet of
information from the medical records that might be inconsistent
with the rest of the objective medical evidence.”
F.3d at 363.
Plaintiff fails to point to any other medical
evidence or testimony indicating that Louk had problems with his
fine motor skills, or that such problems contributed to his
alleged inability to work.
Given the dearth of evidence on this
issue, the Court finds any error in failing to address this
apparent conflict was harmless.
See Spiva v. Astrue, 628 F.3d
predictable with great confidence that the agency will reinstate
its decision on remand because the decision is overwhelmingly
supported by the record”).
Plaintiff also argues that the ALJ should have credited Dr.
Coulter’s opinion that Louk was able to “lift/carry less than 10
pounds or over 10 pounds occasionally” and “stand/walk 2 hours in
an 8 hour day.”
While the ALJ’s RFC assessment
indicated that Louk could work at all exertional levels, the
ALJ’s Step Five decision was based on the VE’s testimony that a
hypothetical person with Louk’s impairments could perform the
product assembler, wiring assembler and packager.
“Light work involves lifting no more than 20 pounds at a time
with frequent lifting or carrying of objects weighing up to 10
20 C.F.R. § 404.1567(b).
Because the representative
limitations for lifting and carrying, the Court finds that any
error in failing to limit Louk’s RFC to light work is harmless.
See Plant v. Colvin, No. 2:13–CV–489, 2015 WL 1931337, at *9
(N.D. Ind. Apr. 28, 2015) (any error in articulating the RFC was
harmless where the VE identified jobs for someone with claimant’s
RFC that could also be performed by someone with additional
limitations posed by claimant).
Regarding Dr. Coulter’s standing and walking limitation of
two hours, the ALJ afforded Dr. Coulter’s opinion little weight
because the limitations were inconsistent with Louk’s “normal
According to Dr. Coulter’s examination
report, Louk had a normal gait, full range of motions in all
joints, was able to perform fine and gross movements and his
muscle strength was grossly normal.
(Id.; see Tr. 304-06.)
report does not indicate why Louk’s standing and walking should
An ALJ is entitled to discount an opinion where the
source “did not explain his opinion and his treatment notes do
not clarify the doctor’s reasoning.”
Schaaf v. Astrue, 602 F.3d
869, 875 (7th Cir. 2010); see Henke v. Astrue, 498 F. Appx. 636,
640 n.3 (7th Cir. 2012) (finding it “is enough” for the ALJ to
note the lack of medical evidence supporting an opinion and its
inconsistency with the rest of the record).
The ALJ did not err
in determining that Dr. Coulter’s conclusions regarding Louk’s
ability to stand and walk were unsupported.3
Plaintiff’s reply brief introduces a new argument, contending that the ALJ’s
RFC is erroneous because he failed to incorporate the opinion of Carol McGrew,
job development specialist. This argument is waived because it was not raised
in the opening brief. See Young v. Colvin, No. 1:13–cv–01602, 2015 WL
1190095, at *7 n.5 (S.D. Ind. Mar. 13, 2015); Citizens Against Ruining the
Env't v. EPA, 535 F.3d 670, 675 (7th Cir. 2008) (“It is improper for a party
to raise new arguments in a reply because it does not give an adversary
adequate opportunity to respond.”) Even so, the argument lacks merit. The
ALJ “considered Ms. McGrew’s opinion valuable and incorporated her perceived
ALJ’s Credibility Determination
Plaintiff claims that the ALJ’s finding that Louk was not
Barnhart, 390 F.3d 500, 504 (7th Cir. 2004).
However, the ALJ
must articulate specific reasons for discounting a claimant’s
testimony as being less than credible, and cannot merely ignore
the testimony or rely solely on a conflict between the objective
medical evidence and the claimant’s testimony as a basis for a
negative credibility determination.
Schmidt v. Barnhart, 395
credibility determination supported by record evidence and be
sufficiently specific to make clear to the claimant and to any
statements and the reasons for that weight.
Lopez ex rel Lopez
v. Barnhart, 336 F.3d 535, 539-40 (7th Cir. 2003).
In evaluating the credibility of statements supporting a
Social Security Application, the Seventh Circuit has noted that
an ALJ must comply with the requirements of Social Security
See Steele, 290 F.3d at 942.
limitations” into Louk’s RFC.
This ruling requires
evaluations; the ALJ cannot merely state that “the individual’s
allegations have been considered” or that “the allegations are
(or are not) credible.”
Furthermore, the ALJ must
consider specific factors when assessing the credibility of an
individual’s statement including:
The individual’s daily activities;
intensity of the individual’s pain or other
Factors that precipitate and aggravate the
The type, dosage, effectiveness, and side
effect of any medication the individual takes
or has taken to alleviate pain or other
individual receives or has received
relief of pain or other symptoms;
individual uses or has used to relieve pain
or other symptoms . . . ; and
Any other factors concerning the individual’s
functional limitations and restrictions due
to pain or other symptoms.
SSR 96-7p; see Golembiewski v. Barnhart, 322 F.3d 912, 915 (7th
The ALJ used some template language in initially assessing Louk’s
the claimant’s medically determinable impairments could
reasonably be expected to cause some of the alleged
symptoms; however, the claimant’s statements concerning
the intensity, persistence and limiting effects of
these symptoms are not entirely credible for the
reasons explained in this decision.
Almost identical language was used and criticized in
However, the use of boilerplate language, by itself, does not
See Adams v. Astrue, 880 F. Supp. 2d 895, 906-07
(N.D. Ill. 2012) (finding reversal was not warranted where the
ALJ provided further explanation as to why the claimant’s alleged
limitations were not supported by the record).
Here, the ALJ considered the factors required by SSR 96-7P
and found that some of Louk’s allegations were not entirely
The ALJ addressed Louk’s hearing testimony as well as
his reports regarding his daily activities.
hearing, Louk testified that he lives alone, can make cake from a
box and pizza, watches television, and reads Stephen King novels.
(Id., Tr. 25.)
In a written report, Louk claimed that he was
shopping and preparing meals.
Louk also reported that
he was unable to concentrate fully, and becomes aggravated easily
because he was unable to complete actions.
that he cannot work because he is too slow and cannot multi-task.
The ALJ noted that Louk was taking several medications that
effectively control his headaches and hypertension and regulate
his blood, and that Louk testified that he felt well and was
incident in which Louk fainted at work and was taken to the
hours, and instructed that he could return to work. (Id.)
ALJ also addressed the psychological evaluation by Dr. Choate,
describing Dr. Choate’s observations and diagnosis, as well as
Louk’s scores on various tests.
The ALJ considered Louk’s employment after his stroke in
2001, and determined that Louk’s ability “to perform such work
after his stroke strongly suggests that the residuals of his
stroke would not currently prevent work.”
also considered that Louk collected unemployment benefits after
he stopped working at Wal-Mart.
Finally, the ALJ found
that Louk’s ability to perform a significant number of daily
activities suggested that he was capable of simple repetitive
Although the ALJ may have used some template language, the
substance of the decision supports his credibility determination.
determination, citing evidence in the record.
See Plant, 2015 WL
claimant’s statements and the evidence in weighing claimant’s
credibility determination was “patently wrong.”
See Skarbek, 390
F.3d at 504; Berger v. Astrue, 516 F.3d 539, 546 (7th Cir. 2008)
(“an ALJ’s credibility assessment will stand as long as there is
some support in the record”) (quotation and brackets omitted).
Plaintiff asserts that the ALJ erred by discounting Louk’s
credibility because he worked for seven years after his stroke.
Plaintiff points out that Louk was required to have been employed
in order to qualify for benefits, and that a claimant who pushes
himself to work despite his limitations is not precluded from
later establishing that he is disabled.
But Louk alleged that
his symptoms stem from his stroke in 2001, and failed to proffer
any evidence that his brain deteriorated thereafter.
565 Fed. Appx. at 544 (“[I]ntellectual abilities are generally
presumed to remain stable over time.”).
The ALJ relied upon
Louk’s hearing testimony that he did a good job after his stroke
and did not have a problem there until he moved to another part
of the factory with a different boss.
testimony and the lack of evidence of deterioration of his mental
functioning after the stroke, the ALJ reasonably concluded that
“the residuals of his stroke would not currently prevent work.”
Plaintiff also argues that the ALJ improperly discounted
Louk’s credibility because he collected unemployment benefits
inconsistency between holding oneself out as ready, able, and
willing to work, and claiming an inability to work full-time.
acknowledges that ALJs are permitted to give some consideration
to such activity, but insists that the ALJ did not give this
determination “significant care and circumspection.”
(DE# 15 at
Plaintiff claims that Louk’s collection of unemployment
benefits does not contradict his disability application because
he was slow to reach the conclusion that he was unable to work.
See Scrogham, 765 F.3d at 699 (“In the case of a progressive
disease, it is especially possible that an applicant might, at
the early stages of the disease’s manifestation, be unsure of the
limits of his physical capabilities and only later determine that
his inability to find work.”).
“[T]here is a contradiction between claiming one is able to
work and claiming one is unable to work, and if there is an
exception to that apparent contradiction it seems incumbent on
the claimant to make that exception clear, as opposed to simply
relying on the fact that, in the abstract, exceptions do exist.”
Roovers v. Colvin, No. 14–C–370, 2015 WL 347749, at *4 (E.D. Wis.
Jan. 26, 2015).
As noted above, Louk testified that he did a
good job for several years after his stroke, and Plaintiff points
1:13–cv–1725, 2014 WL 5704728, at *5 (S.D. Ind. Nov. 5, 2014)
unemployment benefits and there was “no evidence of significant
deterioration in [claimant’s] medical condition after he stopped
working in 2009”).
The Court finds the ALJ did not err in
considering Louk’s collection of unemployment benefits as “one of
many factors” in assessing Louk’s credibility.
Finally, Plaintiff argues that the ALJ improperly questioned
Louk’s credibility because he was able to perform a significant
number of daily activities where he “lives alone, maintains his
own apartment, prepares his own meals, can follow television
Plaintiff maintains that these activities do not equate with an
While Plaintiff asserts that Louk did not testify that he prepared his own
meals, other evidence in the record reflects that Louk did so. (See Tr. 197
(self-reporting that Louk prepared his own meals a daily basis)). Plaintiff
also points to the ALJ’s remark at the hearing that Louk “may be
overestimating his ability, I don’t know.” (Tr. 62.) When viewed in context,
it appears that the ALJ’s remark was merely a response to Mrs. Louk’s
testimony that Louk never made a cake from a box mix at her house. (See id.)
Barnhart, 360 F.3d 751, 755–56 (7th Cir. 2004).
However, an ALJ
inconsistent with [his] stated inability to work.”
Astrue, 258 Fed. Appx. 38, 43 (7th Cir. 2007) (citation omitted).
This was not a matter of the ALJ concluding that Louk was able to
perform full-time work because he periodically engaged in certain
Here, the ALJ noted that the significant
number of daily activities performed by Louk indicated that he
was “capable of simple repetitive work.”
The ALJ also
6977691, at *9 (N.D. Ind. Dec. 9, 2014) (affirming ALJ’s decision
Even if the ALJ misconstrued the evidence of
Louk’s daily activities, the other evidence on which he relied
was sufficient to support the conclusion that Louk’s complaints
were not entirely credible.
See Everaert v. Barnhart, No. 03-Cat
(affirming ALJ’s decision where ALJ relied on evidence other than
Plaintiff has not demonstrated that the ALJ’s decision regarding
Louk’s credibility was patently incorrect.
The ALJ’s credibility
Commissioner is AFFIRMED.
July 29, 2015
/s/ RUDY LOZANO, Judge
United States District Court
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