SELLINGER v. ASTRUE
ENTRY on Judicial Review - The ALJs decision that Ms. Sellinger is not disabled is supported by relevant evidence that a reasonable person might accept as adequate to support his conclusions. Accordingly, the Commissioners decision is AFFIRMED (See Order). Signed by Magistrate Judge Debra McVicker Lynch on 9/6/2011.(MAC)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
BRANDY M. SELLINGER,
MICHAEL J. ASTRUE,
CASE NO. 1:10-cv-01141-DML-RLY
Entry on Judicial Review
Plaintiff Brandy M. Sellinger applied for Disability Insurance Benefits (DIB) under Title
II of the Social Security Act on May 29, 2008. She alleges that she has been disabled since
December 2, 2006, because of problems related to a stroke, back pain, diabetes, obesity, poor
eyesight, severe headaches, and feelings of dizziness. (See R. 80). Acting for the Commissioner
of the Social Security Administration, an administrative law judge (“ALJ”), after a hearing held
October 7, 2009, found that Ms. Sellinger is not disabled because, although she can no longer
perform her past relevant work, she is capable of performing a modified level of sedentary,
unskilled work consistent with the demands of jobs as a hand packer or production
worker/assembler, and those jobs exist in significant number in Indiana.
The national Appeals Council denied review of the ALJ’s decision on July 20, 2010; later
it accepted additional evidence from Ms. Sellinger, but on September 17, 2010, again denied
review (R. 1), rendering the ALJ’s decision for the Commissioner final. Ms. Sellinger filed this
civil action for judicial review under 42 U.S.C. § 405(g), which governs judicial review of DIB
Ms. Sellinger asks the court to reverse the ALJ’s decision and award benefits, or to
remand for further proceedings, on the grounds that the ALJ’s determinations at steps three and
five of the familiar sequential analysis are not supported by substantial evidence. She argues that
the medical evidence proved that her impairments met or equaled five different listings, that the
ALJ erred by deciding whether Ms. Sellinger met or equaled a listing without the advice at the
hearing of a medical advisor, and that he unfairly ignored treatment records demonstrating
disabling mental health impairments. Ms. Sellinger also challenges the ALJ’s residual functional
capacity assessment, along with the ALJ’s negative credibility determination.
For the reasons discussed in this entry, the Commissioner’s decision is AFFIRMED.
Standard for Proving Disability
To prove disability, a claimant must show that she is 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 months.” 42 U.S.C. § 423(d)(1)(A). Ms. Sellinger is disabled if her
impairments are of such severity that she cannot perform the work she previously engaged in
and, if based on her age, education, and work experience, she cannot engage in any other kind of
substantial gainful work that exists in significant numbers in the national economy. 42 U.S.C. §
423(d)(2)(A). The Social Security Administration (“SSA”) has implemented these statutory
The parties consented to the magistrate judge conducting all proceedings and ordering the
entry of judgment in accordance with 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.
standards by, in part, prescribing a five-step sequential evaluation process for determining
disability. 20 C.F.R. § 404.1520.
Step one asks if the claimant is currently engaged in substantial gainful activity; if she is,
then she is not disabled. Step two asks whether the claimant’s impairments, singly or in
combination, are severe; if they are not, then she is not disabled. A severe impairment is one that
“significantly limits [a claimant’s] physical or mental ability to do basic work activities.” 20
C.F.R. § 404.1520(c). The third step is an analysis about whether the claimant’s impairments,
either singly or in combination, meet or equal the criteria of any of the conditions in the Listing
of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1. The Listing of Impairments are
medical conditions defined by criteria that the SSA has pre-determined are disabling, so that if a
claimant meets all of the criteria for a listed impairment or presents medical findings equal in
severity to all the criteria for the most similar listed impairment, then the claimant is
presumptively disabled and qualifies for benefits. Sims v. Barnhart, 309 F.3d 424, 428 (7th Cir.
If the claimant’s impairments do not satisfy a listing, then her residual functional
capacity (RFC) is determined for purposes of steps four and five. RFC is a claimant’s ability to
do work on a regular and continuing basis despite her impairment-related physical and mental
limitations. 20 C.F.R. § 404.1545. At the fourth step, if the claimant has the RFC to perform her
past relevant work, then she is not disabled. The fifth step asks whether there is work in the
relevant economy that the claimant can perform, based on her age, work experience, and
education (which are not considered at step four), and her RFC; if so, then she is not disabled.
The individual claiming disability bears the burden of proof at steps one through four. Bowen v.
Yuckert, 482 U.S. 137, 146 n.5 (1987). If the claimant meets that burden, then the Commissioner
has the burden at step five to show that work exists in significant numbers in the national
economy that the claimant can perform, given her age, education, work experience, and
functional capacity. 20 C.F.R. § 416.960(c)(2); Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir.
Standard for Review of the ALJ’s Decision
Judicial review of the Commissioner’s (or ALJ’s) factual findings is deferential. A court
must affirm if no error of law occurred and if the findings are supported by substantial evidence.
Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). Substantial evidence means evidence
that a reasonable person would accept as adequate to support a conclusion. Id. The standard
demands that there be more than a scintilla of evidentiary support, but does not demand a
preponderance of the evidence. Wood v. Thompson, 246 F.3d 1026, 1029 (7th Cir. 2001). This
limited scope of judicial review follows the principle that Congress designated the
Commissioner, not the courts, to make disability determinations:
In reviewing the decision of the ALJ, we cannot engage in our own analysis of
whether [the claimant] is severely impaired as defined by the SSA regulations.
Nor may we reweigh evidence, resolve conflicts in the record, decide questions of
credibility, or, in general, substitute our own judgment for that of the
Commissioner. Our task is limited to determining whether the ALJ’s factual
findings are supported by substantial evidence.
Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004) (internal citations omitted). See also
Cannon v. Apfel, 213 F.3d 970, 974 (7th Cir. 2000) (court reviews record as a whole, but does not
substitute its judgment for the ALJ’s judgment by reweighing evidence, or resolving conflicts, or
reconsidering the facts or witness credibility). Where conflicting evidence allows reasonable
minds to differ as to whether a claimant is entitled to benefits, the court must defer to the
Commissioner’s resolution of this conflict. Binion v. Chater, 108 F.3d 780, 782 (7th Cir. 1997).
A reversal and remand may be required, however, if the ALJ committed an error of law, Nelson
v. Apfel, 131 F.3d 1228, 1234 (7th Cir. 1997), or based the decision on serious factual mistakes or
omissions. Sarchet v. Chater, 78 F.3d 305, 309 (7th Cir. 1996).
The ALJ is required to articulate a minimal, but legitimate, justification for his decision
to accept or reject specific evidence of a disability. Scheck v. Barnhart, 357 F.3d 697, 700 (7th
Cir. 2004). If an ALJ concludes that benefits should be denied, he must have first built an
accurate, logical bridge between the evidence and his conclusion. Berger v. Astrue, 516 F.3d
539, 544 (7th Cir. 2008). The ALJ need not address every piece of evidence in his decision, but
he must trace the path of his reasoning and connect the evidence to his findings and conclusions.
Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).
The ALJ’s Findings
Ms. Sellinger was born in July 1976, was 30 years old at the time of the alleged onset of
disability on December 2, 2006, and was 33 years old at the time of the ALJ’s decision. She has a
high school education and has worked as a restaurant hostess, daycare worker, housekeeper, deli
worker, and cashier, each of which required exertion at either the light or medium levels. (R.
At step one, the ALJ determined that Ms. Sellinger had worked for very short periods of
time in 2007 and 2008, after her alleged onset of disability in 2006, but that both jobs she held
during this time were unsuccessful work attempts and not substantial gainful activity. (R. 18).
At step two, the ALJ identified Ms. Sellinger’s obesity, type II diabetes mellitus, moderate
obstructive pulmonary disease, and mood disorder as severe impairments that more than
minimally affect her ability to perform basic work activities. He determined that Ms. Sellinger’s
high cholesterol, migraine headaches, restless leg syndrome, and back pain were not severe
impairments. (R. 18-19). The ALJ also closely examined the medical evidence regarding the
stroke that Ms. Sellinger alleged she had suffered and found that although Ms. Sellinger
consistently informed numerous providers that she had had a stroke, the “stroke” event was
not—according to the contemporaneous medical record—a stroke or a cerebrovascular attack of
any kind. (R. 19-20).
At step three, the ALJ evaluated Ms. Sellinger’s impairments against listings 3.02
(chronic pulmonary insufficiency), 9.08 (diabetes mellitus), 11.04 (central nervous system
vascular accident), 12.02 (organic mental disorders), 12.03 (schizophrenic, paranoid, and other
psychotic disorders), and 12.04 (affective disorders), and found that Ms. Sellinger’s impairments
did not meet or medically equal any of the listings. The ALJ discussed Ms. Sellinger’s request
that he conduct a supplemental hearing and summon a psychologist and another medical expert
to testify whether a listing was met, but he determined that the entirety of the medical record was
sufficient for him to make a decision at step three without additional medical testimony. (R. 2022).
At step four, the ALJ determined that Ms. Sellinger was capable of performing a
modified range of sedentary work, deciding that Ms. Sellinger could only occasionally climb,
balance, stoop, kneel, crouch, and crawl, and that her mental impairments must be
accommodated by limiting work to that requiring the carrying out of simple, one-on-one
instructions. With this RFC, Ms. Sellinger could not perform her past relevant work (R. 27) but,
crediting the testimony of the vocational expert, the ALJ found that there were significant
numbers of unskilled and sedentary jobs in Indiana as a hand packer or production
worker/assembler that were consistent with Ms. Sellinger’s abilities. (R. 27-28). Accordingly,
the ALJ decided that Ms. Sellinger is not disabled.
Ms. Sellinger has not met her burden that her impairments met any listing.
Ms. Sellinger argues that the ALJ’s step three findings that her medical impairments did
not meet or medically equal listing 9.08, 11.04, 12.02, 12.03, or 12.04 all lack appropriate
evidentiary support. Ms. Sellinger’s opening brief contains nine pages summarizing various
treatment records—with respect to her diabetes, obesity, alleged “stroke,” and mental health
observations and treatment—that she alleges the ALJ either “ignored, misstated, argued with, or
rejected.” But she does not even set forth the requirements of any of the listings and does not
explain how these records require a conclusion that Ms. Sellinger met or medically equaled any
of them, which is her burden. Maggard v. Apfel, 167 F.3d 376, 380 (7th Cir. 1999) (claimant has
burden to prove that she meets or medically equals each requirement of a listing). Ms.
Sellinger’s reply brief attempts to correlate some specific records with some of the requirements
of the listings, but she still does not explain how the records require the conclusion that listings
were met or equaled. Further, waiting until the reply brief to make arguments that could have
been made in one’s opening brief is too late and does not give the Commissioner an opportunity
for response. See Waite v. Bowen, 819 F.2d 1356, 1360 n.1 (7th Cir. 1987) (refusing to consider
new argument in reply brief in appeal of adverse disability determination). Finally, there are
obvious shortcomings between the medical evidence and the listings. The court is satisfied that
the ALJ’s conclusion that none of the listings was met or medically equaled is supported by
1. Ms. Sellinger did not prove that she satisfied all criteria for listing 9.08A.
Regarding Ms. Sellinger’s diabetes evaluated under 9.08A, her reply brief cites to two
medical records (R. 316 and R. 401) as the support that she met or medically equaled the listing.
Those records document that Ms. Sellinger has been diagnosed with type II diabetes and reported
to her providers that she has felt numbness in her thigh (R. 316) and in her hands and feet (R.
401) over a long period of time. A diagnosis of diabetes and feelings of numbness are not
enough to satisfy the listing. The listing requires medical documentation of physical signs and
symptoms of diabetes with neuropathy “demonstrated by significant and persistent
disorganization of motor function in two extremities resulting in sustained disturbance of gross
and dexterous movements, or gait and station.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 9.08A.
The two records cited by Ms. Sellinger say nothing about, or even suggest, “significant and
persistent disorganization of motor functions” or “sustained disturbance of gross and dexterous
movements,” or “sustained disturbance of gait or station.” The ALJ found no evidence in Ms.
Sellinger’s medical records demonstrating the severity of neuropathy described in the listing (see
R. 20), and Ms. Sellinger has not shown otherwise.
The ALJ’s findings that Ms. Sellinger did not suffer a vascular accident
and did not meet listing 11.04 are supported by substantial evidence.
Regarding Ms. Sellinger’s “stroke,” her opening and reply briefs point to a number of
medical records in which Ms. Sellinger recited her medical history as including a stroke in July
2008, but she does not demonstrate that the ALJ’s evaluation of the medical evidence of the
“stroke” event is unreasonable. As the ALJ explained, in July 2008, Ms. Sellinger went to the
emergency room complaining that she was weak and her speech was slurred. Tests and physical
examination were performed; Ms. Sellinger’s neurological test results were normal (“No focal
motor deficits, focal sensory deficits, cerebellar deficits,” R. 262), as were x-rays, a head CT
(“no bleed, no mass, no acute ischemic stroke, no acute changes,” R. 263), and an EKG
(“normal,” R. 273). As the ALJ also noted, even though Ms. Sellinger complained that her
speech was slurred, the medical assessment was that her speech was not slurred but was clear
and understandable. (R. 264).2 There was no medical evidence of a stroke and the ALJ’s finding
that the medical records did not support the existence of any “cerebrovascular attack of any
kind” is supported by the evidence, and supports his conclusion that listing 11.04 was not met.
See White v. Barnhart, 415 F.3d 654, 658 (7th Cir. 2005) (where ALJ’s finding that there was no
documentation of certain medical disorder was supported by substantial evidence, there was no
reason for ALJ to consult listing requirements for that medical disorder)
Ms. Sellinger has not demonstrated that she met
any of the mental impairments listings.
The ALJ’s evaluation of Ms. Sellinger’s mental impairments against listings 12.02,
12.03, and 12.04 is also supported by substantial evidence. Each of these listings requires,
among other things, that the claimant’s mental condition manifest itself at a level of severity
measured by the same factors, called the “B” criteria. (A claimant whose mental impairment
does not manifest itself at a severity level tested by the B criteria may then look to the “C”
criteria for a particular listing. The C criteria for listings 12.02, 12.03, and 12.04 are not
identical, but Ms. Sellinger does not claim that she met the C criteria for any of them or
challenge the ALJ’s decision that she did not meet them.) To satisfy the B criteria, a claimant’s
mental disorder must result in at least two of the following:
Marked3 restriction of activities of daily living;
Ms. Sellinger’s complaint that the ALJ did not cite any evidence for his observation that
no evidence of “slurred speech, paresthesias, facial droop or drooling was found” (Dkt. 28 at p.
6) is contradicted by the ALJ’s decision. He cited page 10 of Exhibit 2F (at page 264 of
the electronic administrative record), which contains the evidence cited by the ALJ.
“Marked” means “more than moderate but less than extreme.” Listing 12.00C
(Assessment of level of severity). The regulation explains further that a “marked limitation may
arise when several activities or functions are impaired, or even when only one is impaired, as
long as the degree of limitation is such as to interfere seriously with [the claimant’s] ability to
function independently, appropriately, effectively, and on a sustained basis.” Id.
Marked difficulties in maintaining social functioning; or
Marked difficulties in maintaining concentration, persistence, or pace; or
Repeated episodes of decompensation, each of extended duration.
See listings 12.02B, 12.03B, and 12.04B.
The ALJ evaluated each B factor and explained the evidence he considered and relied
upon in reaching his conclusions that Ms. Sellinger had, at most, moderate difficulties in her
activities of daily living (noting that she did not attend as much to activities that she previously
enjoyed), social functioning (her husband testified that she avoided crowds), and maintaining
concentration, persistence, or pace (the consultative psychological examination revealed that she
could sustain adequate concentration and persistence if the tasks were of only mild complexity),
and that there was no evidence that she had suffered from episodes of decompensation, each of
extended duration. (R. 21).
Ms. Sellinger makes three specific challenges to the ALJ’s evaluation of her mental
health treatment for purposes of the listings. She argues that her behavior at the Samaritan
Center in November 2009, which led to her hospitalization for mental health treatment, should
have been considered, that the ALJ “ignored” her mental health treatment at the Samaritan
Center in September 2009, which reported a GAF of 45, and that the ALJ improperly failed to
summon a medical advisor to the hearing to opine on whether Ms. Sellinger met or equaled a
a. The ALJ’s decision cannot be reversed
based on the November 2009 records.
Regarding the November 2009 Samaritan Center records (R. 435-438), they were first
submitted by Ms. Sellinger to the Appeals Council and were not before the ALJ. The ALJ’s
decision may not be reversed based on information he did not have. Eads v. Secretary of Dep’t
of Health and Human Servs., 983 F.2d 815, 817-18 (7th Cir. 1993) (court may not reverse ALJ’s
decision based on evidence first submitted to the Appeals Council). Documents that are first
submitted to the Appeals Council may not be considered by a court on judicial review unless the
court is reviewing an opinion of the Appeals Council to grant or deny benefits. Id. at 817. The
case cited by Ms. Sellinger in favor of the court’s considering the November 2009 psychiatric
records fit that procedural requirement: In Bauzo v. Bowen, 802 F.2d 917 (7th Cir. 1986), the
Appeals Council reversed the ALJ’s decision and reached the merits of the claimant’s disability
application, ruling that the claimant was not disabled. Id. at 920. There, the Appeals Council’s
decision was the final decision of the Commissioner subject to judicial review. Id. at 921.
In Ms. Sellinger’s case, the Appeals Council denied review of the ALJ’s decision,4 which
had the effect of making the ALJ’s decision the final decision of the Commissioner, and the only
evidence that can be considered on judicial review is the evidence that was before the ALJ as
part of his decision-making. These principles were explained by the Seventh Circuit in Eads:
Since the submission of the evidence [to the Appeals Council] precedes the
Appeals Council’s decision, and that decision, even when it denies review, is a
precondition to judicial review, the new evidence is a part of the administrative
record that goes to the district court in the judicial review proceeding, and then to
this court if there is an appeal. It might seem therefore that the district judge and
we would be free to consider the new evidence that was before the Appeals
Council in deciding whether the decision denying benefits was supported by the
record as a whole. And of course this is right when the Council has accepted the
case for review and made a decision on the merits, based on all the evidence
before it, which then becomes the decision reviewed in the courts. It is wrong
when the Council has refused to review the case. For then the decision reviewed
in the courts is the decision of the administrative law judge. The correctness of
that decision depends on the evidence that was before him.
The decision of the Appeals Council to deny review is itself not reviewable by a court.
See Damato v. Sullivan, 945 F.2d 982, 988-89 (7th Cir. 1991) (decision by Appeals Council to
deny review is not subject to judicial review).
983 F.2d at 817 (internal citations omitted); see also Wolfe v. Shalala, 997 F.2d 321, 322 n.3 (7th
Cir. 1993) (When the ALJ’s decision stands as the final decision of the Commissioner because
the Appeals Council denied review of the ALJ’s decision, “it is that decision and the evidence
which was before the ALJ which is before [the court] on review.” Additional records submitted
to Appeals Council cannot be used as basis for finding reversible error).
In certain circumstances, an ALJ’s decision can be remanded under sentence six of 42
U.S.C. § 405(g) because of new evidence that was not before the ALJ, but then the claimant
bears the burden to prove that there is new, material evidence and good cause for failing to
incorporate the evidence in a prior proceeding. Waite v. Bowen, 819 F.2d 1356, 136-621 (7th Cir.
1987) (proponent of remand under sentence six of 42 U.S.C. § 405(g) bears burden to show that
new, material evidence exists and there is good cause why it previously was not submitted). Ms.
Sellinger has not requested a remand under sentence six, but has asked the court to consider the
November 2009 records as a basis for finding that the ALJ’s decision was not supported by
substantial evidence or the Appeals Council’s decision to deny review was erroneous. The court
can do neither.
b. The ALJ explained his evaluation of the one-time GAF score of 45.
Ms. Sellinger contends that the ALJ “ignored” a September 9, 2009 mental health
treatment plan even though it reported that Ms. Sellinger’s mental health problems were
interfering with her functioning and reported her GAF as 45. She further contends that because a
“treating” psychiatrist (Dr. Helfenbein) diagnosed her with the GAF of 45, that assessment was
entitled to controlling weight, and proved she is disabled. Ms. Sellinger is incorrect on each
GAF stands for Global Assessment of Functioning, and is a numeric scale from 9 through
100 used by mental health physicians and clinicians to rate an adult’s overall level of social,
occupational, and psychological functioning, generally as of the time of the psychological
examination. Under the American Psychiatric Association’s Diagnostic and Statistical Manual
of Mental Disorders, Fourth Edition (DSM-IV), a GAF between 41 and 50 denotes “Severe
symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any
serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep
a job).” See “Axis V Global Assessment of Functioning Scale,”
www.psyweb.com/DSM_IV/jsp/Asix_V.jsp (last visited August 31, 2011).
The ALJ did not ignore Ms. Sellinger’s 2009 mental health treatment and although he did
not specifically mention her September 9, 2009 record, he evaluated Dr. Helfenbein’s August
2009 clinical opinion, including the doctor’s assignment to Ms. Sellinger of a GAF of 45, which
was the impetus for the September 9, 2009 treatment plan. There was no need for the ALJ to
address specifically every mental health record. The ALJ thoroughly discussed Ms. Sellinger’s
mental health treatment and other evidence relevant to her mental functioning. He did not ignore
an entire line of evidence. See Jones v. Astrue, 623 F.3d 1155, 1162 (7th cir. 2010) (ALJ is not
required to discuss every piece of evidence but is “prohibited only from ignoring an entire line of
evidence that supports a finding of disability”).
Ms. Sellinger’s repeated references to Dr. Helfenbein as her treating psychiatrist and
argument that the ALJ was required to give Dr. Helfenbein’s clinical opinion controlling weight
are without support. Dr. Helfenbein saw Ms. Sellinger once, on August 24, 2009. A medical
source that does not have an ongoing relationship with the claimant because, for example, she
has treated the claimant only once, is not a treating source whose opinion is entitled to
controlling weight. See White v. Barnhart, 415 F.3d 654, 658 (7th Cir. 2005). A physician or
clinician whose treating relationship with the claimant is that sparse is, by definition under the
SSA’s regulations, a non-treating source. Id.; 20 C.F.R. § 404.1502 (“Nontreating source means
a physician . . . who has examined you but does not have, or did not have, an ongoing treatment
relationship with you”).
The ALJ addressed Dr. Helfenbein’s clinical judgment, including the doctor’s assessment
of Ms. Sellinger’s GAF at 45, and the reasons the ALJ rejected the judgment as inconsistent with
the longitudinal picture of Ms. Sellinger’s overall mental health evaluations and treatment, her
activities of daily living, and work history. For example, the ALJ discussed that Ms. Sellinger’s
level of daily activities are varied and extensive. She drives with her husband (who retired at an
early age) around the forest some days, works on their house on other days, gets on the
computer, watches television if it is interesting, planned her wedding, was trying to become
pregnant, had taken care of her grandfather, and cooked for her mother and aunt. She also
reported on her disability function report that she washes clothes and dishes, picks up around the
house, cooks, vacuums, and shops. (See R. 23). He also addressed other psychiatric evaluations
in the record, including Dr. Fink’s consultative examination in October 2008. Dr. Fink (who
shares the same status as Dr. Helfenbein as a non-treating source, 20 C.F.R. § 404.1502) reported
no evidence of psychotic symptoms, unusual thought processes, bizarre ideation, or clinically
significant affective disorders. The ALJ discussed that he assessed Dr. Fink’s one-time
examination and clinical judgment as more consistent with the overall historical and longitudinal
record than Dr. Helfenbein’s one-time examination. (R. 25). He noted that Ms. Sellinger’s
reports to Dr. Helfenbein in August 2009 were inconsistent with statements she had made only a
few months earlier to a different doctor, regarding whether she experiences auditory or visual
hallucinations. (R. 24). The ALJ also noted the disability screener’s report of his telephone call
with Ms. Sellinger in June 2008, in which Ms. Sellinger was described as “cooperative and
pleasant [and had] no problems communicating.” (R. 23).
The ALJ’s opinion reflects his weighing of the evidence and his determination of the
weight to give to medical opinions within the record, consistent with his responsibility under the
SSA’s regulations. See 20 C.F.R. § 404.1527(d) (ALJ has responsibility to evaluate and decide
weight to give medical opinions). Ms. Sellinger has not demonstrated that the ALJ’s evaluation
of Ms. Sellinger’s mental health for purposes of determining whether she met or medically
equaled either listing 12.02, 12.03, or 12.04 is unsupported by substantial evidence.
c. The ALJ was not required to summon a medical advisor.
Ms. Sellinger’s argument that the ALJ was required to summon a medical advisor to the
hearing to opine whether Ms. Sellinger met or medically equaled a listing, or otherwise to
discuss whether Ms. Sellinger was disabled, is without merit. She cites two cases in support of
her argument, but neither Barnett nor Green (discussed below) establishes a rule that an ALJ
must always summon a medical advisor regarding medical equivalence to a listing or any other
disability-related determination. In Barnett v. Barnhart, 381 F.3d 664 (7th Cir. 2004), the ALJ’s
opinion whether the claimant was disabled at step three contained two sentences regarding the
listing of impairments and did not identify any particular listing as one that he considered. The
court found that the ALJ had made only a perfunctory analysis of the listing and had refused to
consider a whole line of medical records documenting her symptoms and treatment for seizures
over a 10 year period. Further, there was nothing in the administrative record that any physician
had ever considered whether the claimant’s impairments met or equaled a listing, the ALJ did not
consult a medical expert to make that judgment, and it therefore appeared that “the ALJ merely
assumed the absence of [medical] equivalency without any relevant discussion.” Id. at 670-71.
Under those circumstances, the ALJ’s decision at step three was not supported by substantial
evidence. Id. at 671.
The ALJ’s opinion in Ms. Sellinger’s case and the administrative record bear no
resemblance to the facts in Barnett. This ALJ identified the listings he considered and he
discussed in detail his analysis of the medical records and the reasons he found that Ms. Sellinger
did not meet or equal any listings. Further, the administrative record reflects that agency
physicians had opined that Ms. Sellinger’s physical and mental impairments did not satisfy, or
medically equal, any listings. See, e.g., Thomas v. Astrue, 2010 WL 2485556 (S.D. Ind. June
11, 2010) (ALJ does not err in failing to summon medical expert on equivalence where there is
no showing that the ALJ disregarded pertinent medical evidence contrary to his conclusions or
failed to adequately explain how he reached the decisions he did).
In Green v. Apfel, 204 F.3d 780 (7th Cir. 2000), the court also did not rule that a medical
advisor is always necessary. In fact, the court said that an ALJ is required to summon a medical
expert only “if that is necessary” to make an informed decision regarding whether the claimant is
disabled, at step three or otherwise. Id. at 781.
The ALJ addressed Ms. Sellinger’s argument that he should summon a medical advisor
and explained his decision that it was unnecessary to do so because the administrative record,
including medical records, contained sufficient evidence to allow the ALJ to make the decisions
required under the SSA regulations in determining disability. Other than her contention
regarding the November 2009 Samaritan Center records (addressed above at p. 14) and her
contention that a medical advisor must always be summoned, Ms. Sellinger does not attempt to
show that the medical evidence available to the ALJ was incomplete in any respect. The court
finds no basis for concluding that the ALJ was required to solicit more medical information or
another medical opinion to support his decision at step three, or any other step in his analysis.
See Apfel, 204 F.3d at 781 (ALJ required to summon medical expert if “that is necessary to
provide an informed basis for determining whether the claimant is disabled”); Kendrick v.
Shalala, 998 F.2d 455 (7th Cir. 1993) (ALJ was not required to order another round of
consultative exams when there were sufficient facts to make an informed decision).
B. The ALJ’s RFC analysis is supported by substantial evidence.
Ms. Sellinger’s challenge to the ALJ’s decision regarding the functional limitations
imposed by Ms. Sellinger’s physical and mental impairments is, at bottom, a request that the
court reweigh the evidence and evaluate her credibility anew—tasks that are inappropriate for
the court to undertake on judicial review of the Commissioner’s decision.
The ALJ’s credibility determination is not “patently wrong.”
In analyzing functional limitations caused by Ms. Sellinger’s physical and mental
impairments, the ALJ considered whether and the extent to which Ms. Sellinger’s descriptions of
the limiting effects of her impairments and their symptoms, including pain, were worthy of
credence. His assessment of Ms. Sellinger’s credibility decision is entitled to special deference
from the court and is not grounds for reversal and remand unless it was “patently wrong.” Craft
v. Astrue, 539 F.3d 668, 678 (7th Cir. 2008) (because ALJ is in best position to evaluate a
claimant’s credibility, ALJ’s credibility determination is reviewed deferentially and will not be
set aside unless it is “patently wrong”). Social Security Ruling 96-7p describes the appropriate
process for evaluating credibility and requires an ALJ to consider a claimant’s subjective
complaints in light of the relevant objective medical evidence, as well as any other pertinent
evidence regarding the claimant’s daily activities, the severity and intensity of the claimant’s
pain or other symptoms, precipitating and aggravating factors, medication, treatment, and other
measures to relieve the pain or other symptoms and their efficacy and side-effects, and any other
factors relevant to functional limitations due to pain or other symptoms. See SSR 96-7p; 20
C.F.R. § 404.1529(c)(3). It is not necessary that the ALJ recite findings on every factor, but the
ALJ must given reasons for the weight given to the claimant’s statements so that the claimant
and subsequent reviewers have a fair sense of how the claimant’s testimony was assessed.
Brindisi v. Barnhart, 315 F.3d 783, 787-88 (7th Cir. 2003) (ALJ must comply with SSR 96-7p in
making a credibility determination by articulating the reasons behind the determination).
Ms. Sellinger contends that the ALJ’s credibility determination was patently wrong
because he considered solely whether Ms. Sellinger’s statements about the intensity, persistence,
and limiting effects of her pain and other symptoms were consistent with the objective medical
evidence, contrary to the requirement s of SSR 96-7p. But—as with other of Ms. Sellinger’s
arguments that misstate the record—the ALJ’s opinion does not rely solely on the grounds that
Ms. Sellinger’s complaints are inconsistent with the objective medical signs and laboratory
findings. In addition to contrasting Ms. Sellinger’s (and her husband’s) descriptions of the
limiting effects of her impairments against the objective medical signs and evidence, the ALJ
identified discrepancies between Ms. Sellinger’s complaints and actual daily activities,
identified discrepancies between Ms. Sellinger’s descriptions of her symptoms at the hearing and
reports she has made to physicians, and took into account the extent to which Ms. Sellinger’s
symptoms were responsive to medication that did not have side-effects limiting Ms. Sellinger’s
The ALJ also explained that he found Ms. Sellinger’s appearance and demeanor at the
hearing to be “generally unpersuasive.” (R. 24). Ms. Sellinger came to the hearing dressed in
her pajamas and carrying a stuffed monkey. She explained that she was scared. She also told the
ALJ about her memory problems and concentration difficulties, and that numbness in her right
hand prevents her from holding anything. The ALJ found that Ms. Sellinger’s appearance
seemed grossly exaggerated as compared to the objective evidence of her mental health, and the
things she said did not match her behavior. He noted that she said she could not grasp anything
with her right hand, yet she grasped her stuffed monkey without any problems. (R. 26). He
described that Ms. Sellinger testified about severe memory problems, yet she rattled off a list of
medications with ease, telling the ALJ (without any apparent difficulty with her speech or
memory) that she takes: “insulin, Metformin, Glucophage, Actos, Cymbalta, Abilify,
Amitripytlene, Naproxen, Vicodin, Lisinopril, Vytorin, and two inhalers.” (R. 46).
Ms. Sellinger contends that it was improper for the ALJ to assess credibility based on
appearance and performance at the hearing—calling it a forbidden “sit and squirm”
observation—but one of the very reasons an ALJ’s credibility finding is reviewed especially
deferentially is because of the ALJ’s opportunity to observe the witness. See Powers v. Apfel,
207 F.3d 431, 436 (7th Cir. 2000) (“we have repeatedly endorsed the role of observation in
determining credibility”). The Seventh Circuit stressed in Powers the appropriateness of an ALJ
gauging a person’s frankness and honesty based on whether her demeanor, behavior, attitude,
and general bearing seem consistent with the complaints she makes. Id. The court noted that an
ALJ should be wary of relying heavily on whether a claimant seems to “sit and squirm” in a way
consistent with pain or other functional limitations she says she suffers because that sort of
behavior can be too easily manipulated by the deceitful claimant and the “hardy” claimant may
steel herself at a hearing, but observation rightly plays a role in a credibility determination. Id.
There is no basis on which the court can find that the ALJ’s assessment of Ms.
Sellinger’s credibility was patently wrong.
2. Substantial evidence supports the ALJ’s evaluation of Ms. Sellinger’s RFC.
Ms. Sellinger’s additional arguments regarding the ALJ’s evaluation of her functional
capacity despite her physical and mental impairments fare no better than her attack on the ALJ’s
evaluation of Ms. Sellinger’s credibility. She makes broad-brush arguments that the ALJ’s
opinion itself does not bear out.
She claims that the ALJ selected and discussed only evidence that favor his denial
decision (Dkt. 19 at p. 19), but that’s not true. For example, the ALJ addressed Dr. Helfenbein’s
opinion and the reasons he rejected that opinion. He discussed that Ms. Sellinger had been found
disabled for purposes of Indiana’s Medicaid program, and the reasons he was not persuaded by
the Medicaid decision. The ALJ explained that the Medicaid decision relied on and credited Ms.
Sellinger’s claim that she had had a stroke (when that claim was not supported by medical
evidence) and other subjective complaints that the ALJ found were not credible and inconsistent
with the overall objective medical evidence. (R. 26).
Ms. Sellinger claims that the ALJ ignored a host of mental health records, but his
decision contains a highly-detailed look at her mental health evaluations and treatment and the
ways in which her mental health manifested itself in her activities of daily living, social
functioning, and abilities to concentrate. Contrary to Ms. Sellinger’s claim that the ALJ ignored
her health treatment at the Davies Martin Medical Clinic, the ALJ addressed the Clinic
physician’s conclusion—based on her treatment at the Clinic—that she was not able to work at
her previous jobs, had had a stroke, was morbidly obese, and was prescribed medication for
depression. Although the ALJ explained that Ms. Sellinger had not had a stroke, the ALJ’s RFC
took into account Ms. Sellinger’s physical limitations (including her morbid obesity) and mental
health limitations (including her difficulties concentrating and getting along with others), and he
agreed that Ms. Sellinger was not capable of performing her past relevant work. (R. 26).
Ms. Sellinger claims that the ALJ ignored her diabetes and obesity (Dkt. 19 at pp. 19-20),
but he did not. He found, instead, that she is morbidly obese, weighed 339 pounds as of
November 2008, and that her obesity is a severe impairment that “more than minimally” affects
her ability to perform basic work functions. (R. 18-19).
Ms. Sellinger claims the ALJ “ignored the findings” that she had suffered a stroke, but
the ALJ thoroughly explained why he found the medical evidence did not contain any finding
that she had suffered a stroke, an explanation that is supported by substantial evidence.
In short, Ms. Sellinger has not made a persuasive showing that the ALJ ignored a whole
line of evidence, made any critical factual errors or omissions, or an error of law in assessing her
functional capacity. Other than calling herself “totally disabled” from working, she has not
identified a single functional limitation that the ALJ should have considered, but did not
consider, in evaluating the evidence. The ALJ’s decision that Ms. Sellinger was capable of
performing a modified level of sedentary and unskilled work that also took into account her
concentration and other mental difficulties is supported by substantial evidence. His finding,
based on the VE’s opinion, that significant numbers of jobs are available accommodating her
RFC, is supported by the record.
The ALJ’s decision that Ms. Sellinger is not disabled is supported by relevant evidence
that a reasonable person might accept as adequate to support his conclusions. Accordingly, the
Commissioner’s decision is AFFIRMED.
Debra McVicker Lynch
United States Magistrate Judge
Southern District of Indiana
Thomas E. Kieper
UNITED STATES ATTORNEY'S OFFICE
Patrick Harold Mulvany
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