Fortenberry v. Commissioner of Social Security

Filing 21

OPINION AND ORDER: The final decision of the Commissioner of Social Security denying plaintiff's application for disability benefits is AFFIRMED. The Clerk shall enter judgment in favor of the defendant and against the plaintiff. Signed by Judge Philip P Simon on 11/14/2017. (sct)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
JENNY FORTENBERRY,

)
)
Plaintiff,
)
)
vs.
)
)
NANCY BERRYHILL, Acting Commissioner )
)
of the Social Security Administration,1
)
Defendant.
)

Cause No. 3:16CV648-PPS

OPINION AND ORDER
Jenny Fortenberry appeals the Social Security Administration’s final decision
denying her application for disability benefits. That denial is in a written decision of an
Administrative Law Judge, entered after a hearing at which Fortenberry appeared and
testified.2 [AR at 19-31; AR at 41-109.] At the time of the hearing in February 2015,
Fortenberry was 50 years old. [AR at 28.] She was 46 on the date she alleges her
disability began. [Id.] She did not graduate from high school, only attending school to
10th grade. [AR at 51.] Fortenberry had previously worked as a housecleaner, a cashier,
and a waitress. [AR 52-58.] She had last worked in 2011, and claims that she became
unable to work because of a disabling condition as of August 5, 2011. [AR at 60, 239.]

1

On January 23, 2017, Nancy Berryhill became the Acting Commissioner of Social Security.
Fed.R.Civ.P. 25(d) provides for Berryhill’s automatic substitution in place of her predecessor,
Carolyn Colvin.
2

The administrative record [AR] is found in the court record at docket entry 10, and consists
of 657 pages. I will cite to its pages according to the Social Security Administration’s Bates stamp
numbers rather than the court’s Electronic Case Filing page number.

The ALJ found that Fortenberry has four severe impairments: degenerative disc
disease, carpal tunnel syndrome, depression and anxiety. [AR at 22.] The ALJ also
found that Fortenberry has the non-severe impairment of fibromyalgia. [Id.] The ALJ
concluded that Fortenberry‘s severe impairments do not conclusively establish
disability by meeting or medically equaling the severity of the listed impairments in 20
CFR Part 404, Subpart P, Appendix 1. [AR at 22.] At the ALJ’s hearing, Fortenberry
conceded this. [AR at 45.]
The ALJ found that Fortenberry possessed the residual functional capacity to
perform less than light work [AR at 24], and was actually still capable of performing her
past relevant work as a housekeeper/cleaner [AR at 28]. In addition, based on the ALJ’s
findings as to Fortenberry’s residual functional capacity, as well as her age, education
and work experience, the ALJ concluded that Fortenberry can perform several other
jobs at the light exertional level that exist in significant numbers in the national
economy, and that Fortenberry is not disabled. [AR at 28-29.]
Fortenberry asks me to reverse the ALJ’s decision or remand the case for further
proceedings by the Social Security Administration. My role is not to determine from
scratch whether or not Fortenberry is disabled and entitled to benefits. Instead, my
review of the ALJ’s findings is deferential, to determine whether the ALJ applied the
correct legal standards and whether the decision is supported by substantial evidence.
Shideler v. Astrue, 688 F.3d 306, 310 (7th Cir. 2012); Castile v. Astrue, 617 F.3d 923,926 (7th

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Cir. 2010); Overman v. Astrue, 546 F.3d 456, 462 (7th Cir. 2008). If substantial evidence
supports the Commissioner’s factual findings, they are conclusive. 42 U.S.C. §405(g).
What is “substantial evidence?” The term suggests a rigorous review is required.
But it’s helpful on occasion to remind ourselves just how low the Supreme Court has
defined the standard of review. The Court has told us that while it is more than a
“scintilla” of evidence, it’s less than a preponderance of the evidence. Richardson v.
Perales, 402 U.S. 389, 401 (1971). The review of an ALJ’s findings is a light and
deferential one. The ALJ should be affirmed if the decision is supported by “such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Nelms v. Astrue, 553 F.3d 1093, 1097 (7th Cir. 2009) (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971)). In making a substantial evidence determination, I
must review the record as a whole, but I can’t re-weigh the evidence or substitute my
judgment for that of the ALJ. Id.
Fortenberry offers two specific challenges to the ALJ’s decision. The first deals
with how the ALJ evaluated the opinion evidence of Fortenberry’s doctors. The second
concerns how the ALJ evaluated Fortenberry’s limitations and impairments, and
whether they were adequately accounted for in the residual functional capacity
analysis.

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1.

Analysis of Medical Opinion Evidence

Fortenberry argues that the ALJ failed to properly weigh medical opinion
evidence. The ALJ decided to give little weight to the opinions of Fortenberry’s treating
physician, Dr. John Kelly, and the consultative examiner, Dr. Bharat Pithadia. But the
ALJ chose to give considerable weight to the opinions of state agency consultants who
did not examine Fortenberry and which were rendered longer ago and without benefit
of much of the medical evidence in the record. Here’s what the ALJ said about the
opinions of Dr. Kelly:
The undersigned affords little weight to the opinions of Dr. John Kelly
(Exhibits 9F; 14F). While he is a treating source of the claimant, Dr. Kelly’s
opinions are not consistent with the record as a whole. Dr. Kelly’s opinion
as to the claimant’ physical limitations include a number of extreme
limitations that are not supported by the record, including a complete
inability to lift any weight at all off the floor or stoop. Dr. Kelly also
rendered an opinion as [to] the claimant’s mental limitations, despite that
being somewhat outside of his realm of expertise as a primary care
provider, but these reported limitations are grossly inconsistent with the
record. As previously discussed, the claimant has never treated with a
psychiatric expert. Dr. Kelly indicated that the claimant had poor to no
ability to demonstrate reliability or behave in an emotionality [sic] stable
manner (Exhibit 9F/3). He also indicated that the claimant had extreme
loss in her ability to respond appropriately to usual works [sic] situations
and make simple work-related decisions, but could still somehow manage
her benefits in her own best interest. However, the record indicates the
claimant has never needed to be hospitalized for psychiatric reasons, and
has never even treated with a psychological expert, making these reported
limitations somewhat dubious. The claimant also reports that most of her
limitations are physical in nature, not mental (Exhibit 3E). Accordingly,
the undersigned finds that Dr. Kelly’s opinion is not consistent with the
record and affords it little weight.
[AR at 27.]

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“While a treating physician’s opinion is usually entitled to controlling weight, it
must be ‘well-supported by medically acceptable clinical and laboratory diagnostic
techniques’ and not contradicted by other substantial evidence.” Lloyd v. Berryhill, 682
Fed.Appx. 491, 496 (7th Cir. 2017), citing 20 C.F.R. §404.1527(c)(2). If an ALJ chooses to
reject a treating physician’s opinion he has to give good reasons for doing so after
considering the following factors:
(1) whether the physician examined the claimant, (2) whether the
physician treated the claimant, and if so, the duration of overall treatment
and the thoroughness and frequency of examinations, (3) whether other
medical evidence supports the physician’s opinion, (4) whether the
physician’s opinion is consistent with the record, and (5) whether the
opinion relates to the physician’s specialty.
Brown v. Colvin, 845 F.3d 247, 252 (7th Cir. 2016).
In this case, the ALJ attributed his disregard of Dr. Kelly’s opinions to their
extreme nature, which the ALJ found to be inconsistent with the medical record. [AR at
27.] Review of the medical record, which consists largely of Dr. Kelly’s treatment of
Fortenberry, confirms the reasonableness of the ALJ’s conclusion, as does a comparison
of Dr. Kelly’s opinions with Fortenberry’s own reports of her abilities.
Dr. Kelly treated Fortenberry regularly from July 2008 through her Social
Security proceedings. [AR at 281, 431.] A log of Activities of Daily Living reflects
Fortenberry’s report that her limitations are “caused by her physical impairments, not
mental conditions,” and that she is able to cook, clean and shop with some physical
limitations, that she gets along well with others and is able to focus on conversations

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and TV shows, to follow written and verbal instructions and to recall personal and
general information. [AR at 284.] At her hearing before the ALJ, Fortenberry agreed
that her limitations are more physical than mental. [AR at 73.]
Fortenberry’s hearing testimony suggested that she quit her last job as a waitress
at Ryan’s Steakhouse because she was irritated that the restaurant was understaffed
that day. Fortenberry told the ALJ that she “walked out of [the] job” when a fellow
server did not show up for work, and Fortenberry became overwhelmed with the
workload. [AR at 61.] Fortenberry made no reference to back or neck pain as disabling
her from her work. It had more to do with the stress of the situation. Her testimony was
otherwise unremarkable. She confirmed that she gets along well with people, is able to
focus on TV shows and conversations, and is able to handle her finances. [AR at 81.]
Fortenberry testified that she sweeps, does dishes, makes her bed and goes with her
boyfriend to the laundromat every two weeks. [AR at 82-83.] She testified that she is
able to drive to the grocery store and shop alone for 30 minutes, pushing the cart, and
unload the groceries from the car at home if the bags weigh no more than 5 pounds
each. [AR at 77-79.] The ALJ’s opinion takes all these factors into account. [AR at 23,
24, 25, 26.]
Beginning as early as 2011, Dr. Kelly prescribed hydrocodone-acetaminophen for
unspecified myalgia (muscle pain) and myositis (muscle inflammation). [AR at 518.]
Fortenberry was seeing Dr. Kelly regularly. For example, on March 27, 2012,
Fortenberry visited Dr. Kelly. The stated purpose of the appointment was for
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Fortenberry to get her “meds refilled.” [AR at 345.] Fortenberry told Dr. Kelly that her
“pain is constant, (100%) of the time” though it could be controlled by medication. [AR
at 346.] In response, Dr. Kelly planned a radiology work-up of the lumbar sacral spine
and blood work in relation to Fortenberry’s reported back pain. [AR at 510.] The
radiology work was done the next day and the results were entirely normal. [AR at
345.]
In early 2013 Dr. Kelly decided to refer Fortenberry to a pain specialist for pain
management relating to her cervical spine. [AR at 350, 352.] Nurse Practitioner Jennifa
Thomas treated Fortenberry at the Woodland Pain Center on referral from Dr. Kelly,
beginning in March 2013. [AR at 282.] Thomas quickly became concerned that
Fortenberry was getting addicted to the opiods. The records show that Thomas
repeatedly discussed opioid addiction with Fortenberry, advising that she taper off all
opioids in March 2013, April 2013, July 2013, October 2013 and January 2014. [AR at 587,
597, 608, 617, 627.]
Fortenberry’s February 14, 2013 visit to Dr. Kelly reflects Fortenberry’s first
assertion of an inability to work due to pain in her back. [AR at 329.] Dr. Kelly
responded to Fortenberry’s complaints of pain with the prescription of the same four
medicines he had previously prescribed. [AR at 332.] On her July 18, 2013 visit to Dr.
Kelly, Fortenberry reported just about every species of pain (generalized, headache,
neck pain, abdominal pain, lower back pain and limb pain), and that they were not
controlled since her last visit. [AR at 391.] Reporting constant pain in her neck, lower
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back and limbs during her November 27, 2013 visit, Fortenberry also advised Dr.
Kelly’s office that she could not afford her hydrocodone. [AR at 458.]
An MRI of Fortenberry’s lumbar spine on April 5, 2014 revealed a small disc
herniation at the L4-L5 level with mild left neural foraminal narrowing, but no other
significant degenerative changes, no fracture, and no subluxation (partial dislocation).
[AR at 344.] A February 13, 2015 MRI of Fortenberry’s cervical spine showed it to be
normal in every way except for a mild compression of a spinal nerve at C4-C5. [AR at
575.] The treatment notes of Fortenberry’s January 28, 2015 visit to Dr. Kelly don’t
reference pain, but instead focus on restless legs syndrome and sleep disturbances. [AR
at 428-432.]
The three radiologic tests of the lumbar and cervical spine over a three-year
period show either no or only mild degenerative changes. The ALJ noted that the MRI’s
of Fortenberry’s spine “have not suggested disabling abnormalities.” [AR at 26.] Dr.
Kelly’s records variously associate the reported pain with arthritis, spondylosis, chronic
pain, cervicalgia and unspecified “thoracic or lumbosacral neuritis or radiculitis” as
well as unspecified myalgia and myositis, with occasional mentions of fibromyalgia
[e.g., AR at 470]. These various conditions seldom feature in the “PLAN” section of Dr.
Kelly’s notes on each visit, suggesting he offered as little in the way of treatment as he
did in the way of specific diagnosis. The ALJ notes that despite Fortenberry’s reports
of constant pain, the record indicates that she does not appear to be in acute distress,

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has “engaged in rather limited treatment,” “has not attempted surgery,” and “is not
even fully compliant with her current, conservative treatment.” [AR at 26.]
The ALJ also gave short shrift to Dr. Kelly’s opinions about Fortenberry’s mental
limitations. The ALJ’s explanation is four-fold: the subject of mental limitations is
“somewhat outside of [Dr. Kelly’s] realm of expertise as a primary care provider,” the
reported limitations are “grossly inconsistent with the record,” Fortenberry has never
treated with a mental health expert, and Fortenberry herself describes her limitations as
physical in nature, not mental. [AR at 27.] The ALJ found unsupported by the record
Dr. Kelly’s opinion that Fortenberry has little ability to demonstrate reliability or behave
in an emotionally stable manner. [Id.] The ALJ observed that Kelly’s finding that
Fortenberry is unable to make simple decisions is incompatible with his opinion that
Fortenberry is nonetheless capable of managing her benefits in her own interest. [Id.]
Consideration of the doctor’s specialty and consistency with the record are appropriate
factors for the ALJ’s weighing of a treating physician’s opinions. Brown, 845 F.3d at 252.
Fortenberry’s argument fails to demonstrate that the ALJ offered an inadequate or
erroneous explanation of his reasons for giving Dr. Kelly’s mental health opinions little
weight.
For all these reasons, the lack of objective medical evidence and overall
inconsistency with the record support the ALJ’s refusal to give Dr. Kelly’s extreme
opinions about Fortenberry’s limitations considerable weight. And those factors are
adequately explained by the ALJ in his decision. These factors constitute “good
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reasons” for the weight the ALJ assigned Dr. Kelly as a medical source. 20 C.F.R.
§404.1527(c)(2). Fortenberry’s argument essentially asks me to second-guess the ALJ
and re-weigh the persuasiveness of Dr. Kelly’s assertions about her limitations against
certain aspects of the medical record. [DE 13 at 16-18.] But that is not my role on
appeal. As noted above, the review is deferential. “Though the ALJ must provide some
explanation for her decision to discount a treating physician’s opinion, our review is
deferential: the ALJ’s decision must stand as long as she has ‘minimally articulated’ her
reasons for rejecting the treating doctor’s opinion.” Henke v. Astrue, 498 Fed.Appx. 636,
639 (7th Cir. 2012), quoting Elder v. Astrue, 529 F.3d 408, 415 (7th Cir. 2008). Fortenberry
fails to demonstrate reversible error in the ALJ’s analysis of Dr. Kelly’s views.
Fortenberry also argues that the ALJ “inadequately evaluated” the opinion of
consultative examiner Dr. Bharat Pithadia. [DE 13 at 14.] Specifically, Fortenberry cites
Dr. Pithadia’s conclusion that Fortenberry suffered from significant carpal tunnel
syndrome, which would cause difficulty with activities requiring grip strength. [DE 13
at 19, citing AR at 387.] The ALJ did in fact find that carpal tunnel syndrome is one of
Fortenberry’s severe impairments. [AR at 22.] Citing Dr. Pithadia’s report, the ALJ
noted that although Fortenberry’s “grip strength was somewhat reduced, her fine
movement, reflexes and sensory examination was normal.” [AR at 22-23, citing AR at
386-387.] In his more detailed review of the medical record, the ALJ analyzed
Fortenberry’s carpal tunnel syndrome and concluded that it was not disabling. [AR at
26.] The ALJ noted Dr. Pithadia’s findings but also that Fortenberry has had little
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treatment for the condition, had not undergone surgery, and that the medical record
reflects normal fingers and fine movements as well as full muscle strength in her
extremities. [Id.] Fortenberry’s assertion that the ALJ did not discuss Dr. Pithadia’s
report about carpal tunnel syndrome is false, and Fortenberry fails to demonstrate any
reversible error in the ALJ’s consideration of Dr. Pithadia’s evidence.
2.

Evaluation of Impairments and Limitations

Fortenberry next argues that the ALJ failed to identify all of her medically
determinable severe impairments and failed to account for their combined limiting
effects. [DE 13 at 20.] More specifically, Fortenberry asserts that it was error for the ALJ
to include carpal tunnel syndrome among her severe impairments, but not to have
included any manipulative limitations in her residual functional capacity. [Id.] “When
determining an individual’s RFC, the ALJ must consider all limitations that arise from
medically determinable impairments.” Thomas v. Colvin, 745 F.3d 802, 807 (7th Cir.
2014).
As I’ve already noted, the ALJ clearly considered Dr. Pithadia’s observations
about indications of carpal tunnel syndrome. He expressly referenced them in his RFC
discussion, noting the finding of decreased grip strength and thinning of the thenar
eminence on the left side. [AR at 26, citing AR at 387.] The impact of the impairment
was on the ALJ’s mind, as he questioned the vocational expert about the effect on job
prospects if the ability to perform handling and fingering was reduced to merely
occasional. [AR at 101.] But his analysis was ultimately that the medical records did
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not support a finding that Fortenberry’s condition was disabling. His reasons included
that Fortenberry had sought little treatment for carpal tunnel and had not had surgery,
which Dr. Pithadia observed would help if her condition impacted “clutching and
squeezing.” [AR at 387.] The ALJ also noted that other medical examinations found that
Fortenberry’s fingers and fine movements were normal, and repeatedly (four times)
observed that she had full muscle strength in all her extremities. [AR at 26, citing AR
386, 586, 596, 616 and 377.] For Fortenberry to suggest that the ALJ failed to specifically
discuss why he did not include manipulative limitations in the RFC is disingenuous.
[AR 13 at 21.] He clearly did. And Fortenberry’s argument establishes no reversible
error by the ALJ in doing so.
Next Fortenberry challenges the adequacy of the ALJ’s RFC assessment of her
limitations “in performing the mental demands of work.” [AR 13 at 21.]
Acknowledging that the ALJ found Fortenberry’s severe impairments to include
depression and anxiety [AR at 22], and that she has moderate limitations in maintaining
concentration, persistence or pace [AR at 23], Fortenberry suggests that the ALJ’s RFC
did not adequately take these difficulties into account. [AR 13 at 21-22.] Noting these
issues, the ALJ’s RFC assessment included that Fortenberry is “limited to simple,
routine, repetitive tasks and simple work related decisions” and “can only tolerate a
few changes in a routine work setting.” [AR at 24.] The RFC also limits Fortenberry “to
occasional interaction with the public, coworkers, and supervisors.” [Id.]

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In pressing this argument, Fortenberry relies on and analogizes from cases in
which the Seventh Circuit has been critical of the hypothetical posed to the vocational
expert as inadequately setting forth deficiencies of concentration, persistence and pace,
such as O’Connor-Spinner v. Astrue, 627 F.3d 614, 619 (7th Cir. 2010). Fortenberry does
not specifically articulate why the ALJ’s RFC formulation in this case was inadequate to
capture the work-related limitations associated with Fortenberry’s depression, anxiety
and maintaining concentration, persistence or pace. Neither does Fortenberry cite to a
case that demonstrates the insufficiency of the kind of language the ALJ used here.
Fortenberry has the burden to demonstrate a reversible error in the Commissioner’s
adverse decision. That burden is not met by citing an issue identified in other cases and
then merely asserting, without demonstrating, that an analogous error is present in her
case. Without more, Fortenberry’s argument on this point is unpersuasive and
unavailing.
Next, Fortenberry argues that the RFC assessment should have reflected “that
Ms. Fortenberry’s depression, anxiety, and pain combine to make her irritable and
unpredictable in a work setting.” [DE 13 at 22.] In making this argument, Fortenberry
cites no factual evidence of issues with irritability or unpredictable behavior. This
conclusion about Fortenberry is said to be supported by “Dr. Kelly’s assessment,” but
curiously, the citation in her brief is to Dr. Pithadia’s report. [DE 13 at 22, citing AR at
387.] What’s more, the cited report from Dr. Pithdia suggests the contrary: Fortenberry

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displayed a normal affect and no abnormalities of personality or psychosis, according to
Dr. Pithadia. [AR at 387.]
For his part, Dr. Kelly assessed Fortenberry’s mental issues as “fair” in her ability
to relate predictably in social situations [AR at 419] and there was no assessment
specifically relating to irritability. And there was substantial evidence to the contrary.
As the ALJ noted several times, and as Fortenberry herself reported, she was able to get
along with others. [AR at 23, 26, 81 and 284.] In any event, the ALJ’s RFC assessment
included limited social interactions with the public, coworkers and supervisors [AR at
24], and Fortenberry does not demonstrate (or even attempt to demonstrate) that this
finding is insufficient to address the limitations Fortenberry invokes.
Fortenberry also criticizes the ALJ’s consideration of her fibromyalgia. [DE 13 at
23.] In fact, the ALJ identified fibromyalgia as a non-severe impairment, but noted that
the record “does not contain clinical or diagnostic findings, nor durational treatment, to
support the severity of this impairment.” [AR at 22.] Fortenberry does not challenge
the accuracy of that comment or the rest of the substance of the ALJ’s discussion of her
fibromyalgia. In sum, the ALJ found that because he was already assessing three other
severe impairments — degenerative disc disease, carpal tunnel syndrome and
depression — which “could reasonably cause the claimant’s symptoms of widespread
body pain and fatigue,” he “considered the claimant’s reported symptoms, but
attributed them to the claimant’s other impairments.” [Id.]

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Fortenberry does not identify a specific shortcoming of what the ALJ did with
respect to his analysis of fibromyalgia, but only criticizes what he didn’t do, without any
authority suggesting that any of those steps were required. For example, Fortenberry
faults the ALJ for not mentioning SSR 12-2p, a Social Security Administration Policy
Interpretation Ruling addressing evaluation of fibromyalgia. Fortenberry does not
identify any requirement of SSR 12-2p that was not met by the ALJ’s analysis, or any
other respect in which SSR 12-2p demonstrates that reversible error was committed in
her case. Much of SSR 12-2p is devoted to determination of whether fibromyalgia is a
medically determinable impairment, but obviously the ALJ here found that it was. To
the extent the remainder of SSR 12-2p addresses how fibromyalgia (once determined) is
evaluated, Fortenberry does not explain how that policy guidance was not followed by
the ALJ who evaluated her case.
In evaluating Fortenberry’s claims about her symptoms and functional
limitations, the ALJ considered “all of the evidence in the case record, including the
person’s daily activities, medications or other treatments the person uses, or has used,
to alleviate symptoms; the nature and frequency of the person’s attempts to obtain
medical treatment for symptoms; and statements made by other people about
symptoms,” and ultimately applied the familiar 5-step sequential evaluation process, as
SSR 12-2p prescribes. [Id.] Fortenberry cites no authority explaining any necessity for
obtaining information from nonmedical sources or third party function reports in order

15

to appropriately assess her fibromyalgia. [DE 13 at 23.] No reversible error is
demonstrated in the ALJ’s fibromyalgia analysis.
Next Fortenberry argues that the ALJ:
erred by failing to adequately consider Ms. Fortenberry’s diagnoses of
osteoarthritis/arthropathy, obesity, hypothyroidism, chronic pain
syndrome, migraine/headaches, and peripheral vascular disease...and
clumping together Ms. Fortenberry’s spinal conditions as “degenerative
disc disease” without recognizing the distinct symptoms and limitations
caused [by] cervical radiculitis, cervical degenerative disc disease,
thoracic/lumbar radiculitis, and lumbar degenerative disc disease.
[DE 13 at 23.] This argument is best described as a cast-the-net-and-see-what-we catch
argument by Fortenberry. The ALJ clearly reviewed the entire medical record, including
the lengthy and various lists of “Active Problems” featured in Dr. Kelly’s treatment
notes. [See, e.g., AR at 311.] Although Fortenberry refers to “distinct symptoms and
limitations caused” by variously described spinal conditions, she does not explain any
such distinctions or cite to any evidence in the medical record supporting such
distinctions or their significance.
To the extent Fortenberry specifically singles out obesity, the Commissioner
rightly points out that Fortenberry merely invokes the condition without arguing that
she had any limitations from her obesity and without citing to “any objective or opinion
evidence that her obesity would have exacerbated her symptoms.” [DE 19 at 12.]
Hernandez v. Astrue, 277 Fed.Appx. 617, 624 (7th Cir. 2008) (it is the claimant’s burden to
“articulate how her obesity exacerbated her underlying conditions and further limited
her functioning”). Because of that silence, and because the ALJ “demonstrated that he
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reviewed the medical reports of the doctors familiar with the claimant’s obesity,” any
failure to explicitly address obesity is harmless error. Id., citing Prochaska v. Barnhart,
454 F.3d 731, 736-37 (7th Cir. 2006). The Court of Appeals has “long held that an ALJ is
not required to provide a ‘complete written evaluation of every piece of testimony and
evidence.’” Rice v. Barnhart, 384 F.3d 363, 370 (7th Cir. 2004), quoting Diaz v. Chater, 55
F.3d 300, 308 (7th Cir. 1995). I find that the ALJ’s determination of Fortenberry’s
impairments, their severity and her RFC was supported by substantial evidence.
Fortenberry’s scattershot argument does not demonstrate otherwise.
Finally, Fortenberry argues that the ALJ did not properly address the issue of
sustainability, that is, whether Fortenberry’s limitations prevent her from “sustaining a
40-hour workweek.” [DE 13 at 24.] Without citing to particular evidence, medical or
otherwise, Fortenberry summarily argues that “the weight of the evidence” shows that,
even if she could perform a number of functions, Fortenberry could not sustain those
activities as required for a 40-hour workweek. This degree of generality in making the
argument robs it of persuasive force. Furthermore, the Seventh Circuit has repeatedly
held that a perfunctory and undeveloped argument is waived. Putnam v. Colvin, 651
Fed.Appx. 538, 542-43 (7th Cir. 2016); Schomas v. Colvin, 732 F.3d 702, 708 (7th Cir. 2013);
Schoenfeld v. Apfel, 237 F.3d 788, 793 (7th Cir. 2001); United States v. Andreas, 150 F.3d 766,
769 (7th Cir. 1998).

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Conclusion
In reviewing the ALJ’s decision, I “may not decide facts anew or make
independent credibility determinations, and must affirm the ALJ’s decision even if
reasonable minds could differ about the ultimate disability finding.” Brown v. Colvin,
845 F.3d 247, 251 (7th Cir. 2016). For the reasons I’ve explained, Fortenberry has not
demonstrated that the ALJ failed to build a logical bridge from the evidence to his
conclusion that Fortenberry is not disabled, or committed other reversible error.
ACCORDINGLY:
The final decision of the Commissioner of Social Security denying plaintiff Jenny
Fortenberry’s application for disability benefits is AFFIRMED.
The Clerk shall enter judgment in favor of defendant Commissioner and against
plaintiff Fortenberry.
SO ORDERED.
ENTERED: November 14, 2017
/s/ Philip P. Simon
UNITED STATES DISTRICT JUDGE

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