BIVENS v. ASTRUE

Filing 28

ENTRY ON JUDICIAL REVIEW - For the reasons set forth, the final decision of the Commissioner is AFFIRMED. Signed by Judge Tanya Walton Pratt on 3/29/2013. (JD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MARY A. BIVENS,
Plaintiff,
v.
MICHAEL J. ASTRUE Commissioner of
Social Security,
Defendant.

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Case No. 1:11-cv-01310-TWP-DKL

ENTRY ON JUDICIAL REVIEW
Plaintiff Mary A. Bivens (“Ms. Bivens”) requests judicial review of the final decision of
the Commissioner of the Social Security Administration (the “Commissioner”) denying her
application for Social Security Disability Insurance Benefits (“DIB”) under Title II of the Social
Security Act (the “Act”) and Supplemental Security Income (“SSI”) under Title XVI of the Act.1
For the reasons set forth below, the Court AFFIRMS the decision of the Commissioner.
I.
A.

BACKGROUND

Procedural History
On June 1, 2006, Ms. Bivens filed applications for DIB and SSI, alleging a disability

onset date of April 30, 2004. Ms. Bivens’s applications were denied initially on September 6,
2006, and upon reconsideration on December 7, 2006. Thereafter, Ms. Bivens filed a request for
a hearing, and a video hearing was held before Administrative Law Judge Deborah A. Arnold
(the “ALJ”) on April 29, 2009. Ms. Bivens was represented by attorney Kenneth P. Schuck at
the hearing. On August 26, 2009, the ALJ denied Ms. Bivens’s applications. On July 29, 2011,
1

In general, the legal standards applied are the same regardless of whether a claimant seeks Disability Insurance
Benefits or Supplemental Security Income. However, separate, parallel statutes and regulations exist for DIB and
SSI claims. Therefore, citations in this opinion should be considered to refer to the appropriate parallel provision as
context dictates. The same applies to citations of statutes or regulations found in quoted decisions.

the Appeals Council denied Ms. Bivens’s request for review of the ALJ’s decision, thus making
it the final decision of the Commissioner for purposes of judicial review. Ms. Bivens filed this
civil action, pursuant to 42 U.S.C. § 405(g), for review of the ALJ’s decision.
B.

Factual Background
At the time of the ALJ’s decision, Ms. Bivens was 49 years old and had undergraduate

and master’s degrees, as well as a Ph.D. in Social Sciences and Education and a nursing degree.
Prior to the alleged onset date of her disability, she had past relevant work as a college faculty
member at a prison, a general office clerk, and a general duty nurse. She also worked as a
hospice nurse and a funeral home grief counselor in 2004 and 2005; however, the ALJ found
that, due to the limited duration of these positions, these jobs that Ms. Bivens performed after her
alleged onset date were unsuccessful work attempts.

Ms. Bivens alleges that she has the

following impairments: migraine headaches, degenerative disc disease, obesity, post-traumatic
stress disorder (“PTSD”), sleep apnea, Von Willenbrand’s2 disease, idiopathic iron deficiency
anemia, carpal tunnel syndrome, wrist nodules and knee problems.
In June and July of 2003, Ms. Bivens was seen by Dr. Jean Miller (“Dr. Miller”), a
physician at Hematology-Oncology of Indiana, for iron deficiency anemia, which caused
prolonged fatigue. Dr. Miller found that Ms. Bivens had very low iron saturation levels and
modest iron absorption, and noted that records of blood tests going back three years were
consistent with a diagnosis of iron deficiency anemia. Dr. Miller also performed a bone marrow
aspiration and biopsy and diagnosed Ms. Bivens with a mild form of Von Willebrand’s disease.
In September 2003, Ms. Bivens was hospitalized for intravenous iron infusions to treat her
anemia. Ms. Bivens was hospitalized overnight for a total of six intravenous iron infusions
2

Von Willebrand Disease is a genetic condition which inhibits the body’s blood-clotting process. See Von
Willebrand Disease, NAT’L HEMOPHILIA FOUND., http://www.hemophilia.org/NHFWeb/MainPgs/MainNHF
aspx? menuid=182&contentid=47 (last visited March 5, 2013).

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during the relevant time period, including June 2004, July 2004, June 2005, April 2006, July
2006, and September 2008.
Ms. Bivens has been seen by her primary care physician, Dr. Robert Hunter (“Dr.
Hunter”), for a variety of medical problems, including depression with PTSD, migraine and
vascular headaches, sleep problems, joint pain, hypertension, hernia, allergies, and iron
deficiency anemia. In July 2003, Ms. Bivens reported to Dr. Hunter that she was having knee
pain, and was later referred to Dr. Scott Walker (“Dr. Walker”), an orthopedic physician, and
underwent surgery to repair a torn meniscus in her knee. In November 2003, Dr. Hunter
performed a comprehensive medical examination on Ms. Bivens, at which Dr. Hunter noted that
she had hand and foot pain, was receiving IV treatments for her anemia, and that her energy
levels were up and down. At the time, she was also still on crutches from her meniscus repair
surgery. Dr. Hunter diagnosed Ms. Bivens with Von Willenbrand’s disease, iron deficiency
anemia, recent right medial meniscus surgery repair of the right knee, recurrent migraine
headaches, depression, gastroesophageal reflux disease, and a family history of coronary artery
disease. In December 2005, Dr. Hunter performed another comprehensive physical exam, which
was generally normal. In September 2006, Ms. Bivens reported to Dr. Hunter that she was
experiencing depression and fatigue, and about a month later she reported a history of sexual
abuse, which caused her to have nightmares and flashbacks. She reported that she was sleeping
poorly secondary to the dreams and that she had become forgetful.
In May 2006, Ms. Bivens was referred by Dr. Hunter to psychologist Dr. Ellen Lucas3
(“Dr. Lucus”) for counseling. Dr. Lucas began treating Ms. Bivens for PTSD and flashbacks,
depression, familial relationship issues, and her history of abuse. Dr. Lucas also worked with
Ms. Bivens on discerning the root cause of her migraine headaches and dealing with
3

Dr. Lucas is also referred to as Dr. Mauer in the record.

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remembering previously forgotten past sexual abuse, and noted that Ms. Bivens was reading and
completing exercises in a self-help book. In conjunction with her therapy, Dr. Hunter prescribed
Ms. Bivens medication to assist with her sleep and anxiety issues. Dr. Lucas saw Ms. Bivens
through the end of 2006.
Ms. Bivens was evaluated by state consultative examiner, Dr. Ceola Berry (“Dr. Berry”),
on July 18, 2006. Ms. Bivens reported that she was diagnosed with PTSD in 2006 as the result
of recalling past sexual and physical abuse, and that she was taking Lexapro. Ms. Bivens
reported that she was able to perform activities of daily living, including dressing, bathing,
grooming, cooking, cleaning, laundry, and shopping, and that she enjoyed watching television.
She also reported to Dr. Berry that she was currently engaged in a job search. Dr. Berry noted
that Ms. Bivens’s mood was euthymic with stable affective expression, and that she self-reported
anxiety and depression, intermittent weepiness, easy annoyance, loss of sexual desire, and nonrestorative sleep.

Dr. Berry diagnosed Ms. Bivens with a mood disorder due to

thrombocytopenic purpura with depressive features, and assigned her a Global Assessment of
Functioning (“GAF”) of 72. Additional facts will be addressed below as necessary.
II.

DISABILITY AND STANDARD OF REVIEW

Disability is defined as the “inability 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). In order to be found disabled, a claimant must
demonstrate that her physical or mental limitations prevent her from doing not only her previous
work, but any other kind of gainful employment which exists in the national economy,
considering her age, education, and work experience. 42 U.S.C. § 423(d)(2)(A).

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In determining whether a claimant is disabled, the Commissioner employs a five-step
sequential analysis. At step one, if the claimant is engaged in substantial gainful activity, she is
not disabled, despite her medical condition and other factors. 20 C.F.R. § 416.920(a)(4)(i). At
step two, if the claimant does not have a “severe” impairment (i.e. one that significantly limits
her ability to perform basic work activities) that meets the durational requirement, she is not
disabled. 20 C.F.R. § 416.920(a)(4)(ii). At step three, the Commissioner determines whether the
claimant’s impairment or combination of impairments meets or medically equals any impairment
that appears in the Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1, and
whether the impairment meets the twelve month duration requirement; if so, the claimant is
deemed disabled. 20 C.F.R. § 416.920(a)(4)(iii). In order to determine steps four and five, the
ALJ must determine the claimant’s Residual Functional Capacity (“RFC”), which is the
“maximum that a claimant can still do despite [her] mental and physical limitations.” Craft v.
Astrue, 539 F.3d 668, 675-76 (7th Cir. 2008) (citing 20 C.F.R. § 404.1545(a)(1); SSR 96-8p). At
step four, if the claimant is able to perform her past relevant work, she is not disabled. 20 C.F.R.
§ 416.920(a)(4)(iv). At step five, if the claimant can perform any other work in the national
economy, she is not disabled. 20 C.F.R. § 416.920(a)(4)(v).
In reviewing the ALJ’s decision, this Court must uphold the ALJ’s findings of fact if the
findings are supported by substantial evidence and no error of law occurred.

Dixon v.

Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). “Substantial evidence means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. Further,
this Court may not reweigh the evidence or substitute its judgment for that of the ALJ. Overman
v. Astrue, 546 F.3d 456, 462 (7th Cir. 2008). While the Court reviews the ALJ’s decision
deferentially, the Court cannot uphold an ALJ’s decision if the decision “fails to mention highly

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pertinent evidence, . . . or that because of contradictions or missing premises fails to build a
logical bridge between the facts of the case and the outcome.” Parker v. Astrue, 597 F.3d 920,
921 (7th Cir. 2010) (citations omitted).
The ALJ “need not evaluate in writing every piece of testimony and evidence submitted.”
Carlson v. Shalala, 999 F.2d 180, 181 (7th Cir. 1993). However, the “ALJ’s decision must be
based upon consideration of all the relevant evidence.” Herron v. Shalala, 19 F.3d 329, 333 (7th
Cir. 1994). The ALJ is required to articulate only a minimal, but legitimate, justification for her
acceptance or rejection of specific evidence of disability. Scheck v. Barnhart, 357 F.3d 697, 700
(7th Cir. 2004).
III. THE ALJ’S DECISION
As an initial matter, the ALJ found that Ms. Bivens met the insured status requirement of
the Act for DIB through March 31, 2010. At step one, the ALJ found that Ms. Bivens had not
engaged in substantial gainful activity since April 30, 2004, and that her work subsequent to this
date constituted unsuccessful work attempts. At step two, the ALJ found that Ms. Bivens had the
following severe impairments: degenerative joint disease, obesity, intermittent anemia, and post
traumatic stress disorder. The ALJ also found that Ms. Bivens had the following non-severe
impairments: sleep apnea, asthma, Von Willebrand’s disease, carpal tunnel syndrome, and a
hernia.

At step three, the ALJ found that Ms. Bivens does not have an impairment or

combination of impairments that meets or medically equals one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. The ALJ concluded that Ms. Bivens had the residual
functional capacity to perform a reduced range of sedentary work, including lifting ten pounds
occasionally and standing and walking a total of two hours in an eight hour work day, and
performing simple, repetitive tasks. At step four, the ALJ determined that Ms. Bivens is unable
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to perform any of her past relevant work. At step five, the ALJ found that considering Ms.
Bivens’s age, education, work experience, and RFC, there are jobs that exist in significant
numbers in the national economy that she can perform, thus she is not disabled for purposes of
the Act from her alleged onset date through the date of the ALJ’s decision.
IV. DISCUSSION
Ms. Bivens raises three issues in her appeal that she claims constitute reversible error.
First, she argues that the ALJ erred at step five because she did not incorporate Ms. Bivens’s
limitations with regard to concentration, persistence and pace into the hypothetical posed to the
vocational expert. Second, she argues that the ALJ did not give proper weight to treating
physicians Dr. Hunter and Dr. Lucas when determining her residual functional capacity. Third,
she argues that the ALJ erred in her credibility determination in evaluating Ms. Bivens’s
testimony regarding the severity and limiting effects of her symptoms.
A.

The ALJ’s hypothetical posed to the vocational expert was not in error.
Ms. Bivens argues that the ALJ failed to properly incorporate her finding of a moderate

degree of limitation in concentration, persistence and pace into the hypothetical that was posed to
vocational expert (“VE”) James Lanier at the hearing. Therefore, Ms. Bivens contends the
hypothetical does not satisfy the Seventh Circuit’s requirement that the ALJ include all of the
claimant’s limitations, including deficiencies of concentration, persistence and pace, and as a
result the VE’s opinion was not based on a full understanding of Ms. Bivens’s limitations. Based
upon the ALJ’s determination at step three that Ms. Bivens has moderate difficulties with regard
to concentration, persistence or pace, Ms. Bivens asserts that the ALJ’s limitation of her RFC to
“simple, repetitive tasks” does not sufficiently encompass her limitations in this area.

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As a general rule, the ALJ’s hypothetical question to the VE “must include all limitations
supported by medical evidence in the record.” Young v. Barnhart, 362 F.3d 995, 1003 (7th Cir.
2004). Specifically, with regard to limitations in the area of concentration, persistence and pace,
the Seventh Circuit in O’Connor-Spinner v. Astrue, 627 F.3d 614, 620-21 (7th Cir. 2010) stated
that in most instances, “the ALJ should refer expressly to limitations on concentration,
persistence and pace in the hypothetical in order to focus the VE’s attention on these limitations
and assure reviewing courts that the VE’s testimony constitutes substantial evidence of the jobs a
claimant can do.” In O’Connor-Spinner, the court determined that it was unclear whether a
hypothetical that limited the claimant to simple, repetitive tasks with simple instructions would
cause the VE to eliminate positions that would pose significant barriers to an applicant’s
depression-related problems with concentration, persistence and pace. Id. In that case, however,
the most restrictive hypothetical question posed by the ALJ did not include “a limitation on
concentration, persistence and pace, although later in his written decision the ALJ listed this
limitation in assessing Ms. O’Connor-Spinner’s residual functional capacity.” Id. at 617-18
(emphasis added).

It is true that a valid hypothetical question must ordinarily include all

limitations that an ALJ finds for a claimant’s RFC. See Simila v. Astrue, 573 F.3d 503, 520 (7th
Cir. 2009). However, courts have held that as long as the ALJ’s RFC finding is supported by
substantial evidence, and there is no inconsistency between the RFC and the hypothetical
question, remand is not mandated under O’Connor-Spinner. See Packham v. Astrue, 762 F.
Supp. 2d 1094, 1105 (N.D. Ill. 2011); Herrold v. Astrue, No. 2:10-CV-489-JD, 2012 WL
967354, at *27 (N.D. Ind., Mar. 21, 2012); Evans v. Astrue, No. 3:10- CV-432-JD, 2012 WL
951489, at *24 (N.D. Ind., Mar. 20, 2012); Allbritten v. Astrue, No. 2:11-CV-116, 2012 WL
243566, at *7 (N.D., Ind., Jan. 25, 2012).

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In this case, Ms. Bivens argues that the ALJ found that she had moderate limitations in
concentration, persistence and pace, thus this should have been included in the ALJ’s
hypothetical. However, this determination was made and addressed only in the ALJ’s step three
analysis, not in the ALJ’s RFC determination, which is a separate analysis. Social Security
Ruling 96-8p, which provides guidance on assessing residual functional capacity, states
[t]he adjudicator must remember that the limitations identified in the “paragraph
B” and “paragraph C” criteria are not an RFC assessment but are used to rate the
severity of mental impairment(s) at steps 2 and 3 of the sequential evaluation
process. The mental RFC assessment used at steps 4 and 5 of the sequential
evaluation process requires a more detailed assessment by itemizing various
functions contained in the broad categories found in paragraphs B and C of the
adult mental disorders listings in 12.00 of the Listing of Impairments, and
summarized on the [Psychiatric Review Technique Form].
SSR 96-8p (emphasis added); see also 20 C.F.R. § 404.1520a(d)(3). The ALJ also states this,
almost verbatim, in her opinion, and states that her RFC determination, which is separate from
the step three determination of whether Ms. Bivens’s mental impairments meet or medically
equal a listed impairment, reflects the degree of limitations found with regard to the overall
severity of Ms. Bivens’s mental impairments. R. at 16-17. This is not like the situation in
O’Connor-Spinner in which the ALJ did include limitations in concentration, persistence and
pace in the claimant’s RFC, but not in the hypothetical presented to the VE. The ALJ’s
hypothetical question in this case was entirely consistent with her RFC finding. R. at 17; 57-58.
Therefore, the Court rejects Ms. Bivens’s challenge to the ALJ’s step five determination on the
basis that it does not adhere to the requirements of O’Connor-Spinner, and finds that the ALJ
was not required to specifically include limitations of concentration, persistence and pace in the
hypothetical posed to the VE.

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B.

The ALJ sufficiently articulated reasons for giving less weight to the treating
physicians’ opinions.
Ms. Bivens’s second argument is that the ALJ improperly did not give controlling weight

to two of her treating physicians, primary care physician Dr. Hunter and psychologist Dr. Lucas,
and erred by not considering a “checklist” of factors in determining what weight to give their
opinions.
A treating physician’s opinion regarding the nature and severity of a medical condition is
entitled to controlling weight if it is (1) well-supported by medical findings, and (2) consistent
with substantial evidence in the record. 20 C.F.R. § 404.1527(c)(2). An ALJ must “minimally
articulate” her reasons for discounting a treating source’s opinion. Elder v. Astrue, 529 F.3d 408,
415 (7th Cir. 2008). This standard is “a very deferential standard that we have, in fact, deemed
‘lax.’” Id. (quoting Berger v. Astrue, 516 F.3d 539, 545 (7th Cir. 2008)). Once well-supported
contradictory evidence is introduced, the treating physician's opinion is no longer controlling, but
remains a piece of evidence for the ALJ to weigh. Hofslien v. Barnhart, 439 F.3d 375, 377 (7th
Cir. 2006).
When considering what weight to give to a medical opinion, “[a]n ALJ must consider the
length, nature, and extent of the treatment relationship; frequency of examination; the
physician’s specialty; the types of tests performed; and the consistency and support for the
physician’s opinion.” Larson v. Astrue, 615 F.3d 744, 751 (7th Cir. 2010) (citing Moss v. Astrue,
555 F.3d 556, 561 (7th Cir. 2009); Elder, 529 F.3d at 415; Hofslien, 439 F.3d at 377); see also
20 C.F.R. § 1527(c).4 The Seventh Circuit in Larson found that the ALJ merely stating that a
treating physician’s opinion was entitled to “some weight” was insufficient, and that the ALJ

4

This section was cited in a previous version of the regulation under 20 C.F.R. § 404.1527(d)(2).

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should have evaluated the physician’s opinion under the factors articulated in 20 C.F.R. §
404.1527. 615 F.3d at 751.
In this case, Ms. Bivens argues that the ALJ erred because she failed to specifically
address the “checklist” of factors in determining what weight to give to Dr. Hunter’s and Dr.
Lucas’s opinions. Ms. Bivens’s argument seems to imply that an ALJ is required to go through
each factor in 20 C.F.R. § 404.1527(c) and explicitly weigh each factor in her opinion.
However, this goes against the principle that the ALJ is only required to “minimally articulate”
her reason for discounting a treating physician’s opinion, which the ALJ has done in this case.
The ALJ stated that she was not persuaded by Dr. Hunter’s and Dr. Lucas’s opinions that
Ms. Bivens is significantly limited to the point where she is unable to work, which ALJ
characterized as “overly pessimistic,” based on her determination that these opinions were not
supported by their own treatment records. R. at 23.

“[C]onsistency and support for the

physician’s opinion” is one of the factors in the “checklist” that the ALJ is required to consider.
Larson, 615 F.3d at 751. The ALJ cites to the fact that many of Ms. Bivens’s examinations by
Dr. Hunter were relatively unremarkable, and his treatment notes did not indicate significant
limitations that would preclude her from performing a reduced range of sedentary work. R. at
19-20. The ALJ also cited to treatment records from Dr. Lucas, which indicated that Lexapro
was helping Ms. Bivens, and that she had started to sleep better and no longer had nightmares,
but that nothing in those records indicated that Ms. Bivens could not perform simple, repetitive
tasks. R. at 21. Furthermore, the ALJ also addressed the other factors in the “checklist”
throughout her discussion of the RFC analysis, including the length, nature and extent of the
treatment relationship, the frequency of examination, the areas of specialty, and the types of tests
performed for both Dr. Hunter and Dr. Lucas. R. at 18-21.

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Ms. Bivens does not point the Court to any evidence in Dr. Hunter’s or Dr. Lucas’s
treatment records that she claims the ALJ overlooked which would support their opinions that
she is limited to the point where she is unable to work; only that the ALJ did not sufficiently
articulate her reason for giving these opinions less weight. The Court finds that the ALJ
sufficiently articulated a basis for not giving these two treating physicians’ opinions controlling
weight, and must defer to the ALJ’s conclusion. See Overman, 546 F.3d at 462 (the court may
not reweigh the evidence or substitute its judgment for that of the ALJ). Therefore, the ALJ did
not err in her consideration of the opinions of Ms. Bivens’s treating physicians.
C.

The ALJ’s credibility determination was not patently erroneous.
Next, Ms. Bivens argues the ALJ erred because she improperly discredited Ms. Bivens’s

testimony regarding the severity of her symptoms and her ability to sustain work. Ms. Bivens
testified that she could not alternately sit and stand for more than half of a work day before she
would need to recline due to her pain, and that she was required to elevate her leg to relieve
swelling. In addition, she testified that mental problems such as flashbacks, difficulties with
sleep, and fatigue would cause her to miss work or be unable to sustain work during an eight
hour work day. Ms. Bivens also alleged that her severe migraines render her incapable of
performing full-time work.
The ALJ’s credibility determination is a two-step process. According to Social Security
Ruling 96-7p, the ALJ must first determine whether there is a medically determinable
impairment which could reasonably be expected to produce the pain or other symptoms alleged,
and second, the ALJ must evaluate the intensity and persistence of the symptoms and determine
the extent to which the symptoms limit the claimant’s capacity for work.

Whenever the

claimant’s statements about the intensity, persistence, or functionally limiting effects of

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symptoms are not substantiated by objective medical evidence, the ALJ must make a finding on
the credibility of the individual’s statements based on a consideration of the entire case record.
SSR 96-7p; 20 C.F.R. § 404.1529(c)(4). The factors that the ALJ must consider when assessing
the credibility of a claimant’s statements include the claimant’s daily activities; the location,
duration, frequency and intensity of the claimant’s symptoms; factors that precipitate and
aggravate the symptoms; the type, dosage, effectiveness, and side effects of any medication the
claimant takes to alleviate the symptoms; any measures other than treatment the claimant uses or
has used to relieve symptoms; and any other factors concerning the claimant’s functional
limitations and restrictions due to symptoms. SSR 96-7p; 20 C.F.R. § 404.1529(c)(3).
Because credibility is largely a factual determination, and because the ALJ is able to
perceive witness testimony firsthand, the court will not upset credibility determinations so long
as there is some support in the record and the ALJ is not “patently wrong.” Herron, 19 F.3d at
335; see Prochaska v. Barnhart, 454 F.3d 731, 738 (7th Cir. 2006) (credibility findings are
afforded “considerable deference” and can only be overturned if they are unreasonable or
unsupported). “When assessing an ALJ’s credibility determination, [the court does not]
undertake a de novo review of the medical evidence that was presented to the ALJ. Instead, [the
court] merely examine[s] whether the ALJ’s determination was reasoned and supported.” Elder,
529 F.3d at 413. Only when the ALJ’s determination lacks any explanation or support will the
court determine that her credibility determination is “patently wrong” and requires reversal. Id.
The ALJ found that Ms. Bivens’s medically determinable impairments could reasonably
be expected to cause her alleged symptoms. R. at 18. However, the ALJ found that Ms.
Bivens’s statements regarding the severity of her symptoms were not entirely credible due to a
number of factors. First, the ALJ indicated that Ms. Bivens’s inconsistent statements in the

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record placed doubt on her credibility; such as her allegations that she could no longer sustain
her employment as a college professor due to her impairments, but she also reported during her
consultative examination in 2006 that she stopped working because her position was terminated
due to a change in contractor, and that she was presently engaged in a job search. R. at 18, 22,
470. Additionally, the ALJ noted that Ms. Bivens reported to one of her physicians that she was
working as a professor teaching nursing and history in July 2004, when she had previously
reported that she stopped working in April 2004 because of her impairments.5 R. at 19. While
under SSR 96-8p an individual who can perform part-time work may still be considered
disabled, the ALJ addressed these facts in the context of demonstrating the inconsistencies in Ms.
Bivens’s statements, not to demonstrate that she is capable of working part-time and is thus not
disabled. R. at 22.
The ALJ also cites to medical records that are inconsistent with Ms. Bivens’s subjective
complaints about the limiting effects of her symptoms. As the Seventh Circuit has noted,
“[a]lthough an ALJ may not ignore a claimant’s subjective reports of pain simply because they
are not supported by the medical evidence, discrepancies between the objective evidence and
self-reports may suggest symptom exaggeration.” Jones v. Astrue, 623 F.3d 1155, 1161 (7th Cir.
2010); see also Powers v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000) (“While a hearing officer may
not reject subjective complaints of pain solely because they are not fully supported by medical
testimony, the officer may consider that as probative of the claimant’s credibility.”). The ALJ
cited to the fact that Ms. Bivens stopped taking all medications in April 2006, suggesting that her
symptoms were not as severe as alleged, and also noted that the results of Ms. Bivens’s
comprehensive medical examinations were relatively unremarkable.
5

R. at 19, 20.

As an

Although not cited by the ALJ, the Court also notes that Ms. Bivens reported to her physician as late as June 2008
that she was working as a professor in a nursing school, which further supports the ALJ’s findings of inconsistencies
in Ms. Bivens’s testimony regarding her ability to work. R. at 603.

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example, the ALJ cited to the July 2006 psychological consultative examination in which Ms.
Bivens demonstrated adequate concentration and attentiveness to task completion. R. at 22. Ms.
Bivens argues that the ALJ ignored Dr. Hunter’s finding that she needed to elevate her leg in a
manner that would prevent the performance of full time work; however, the only place where
this is stated in the record is in a March 2009 form and April 2009 letter completed by Dr.
Hunter for purposes of her disability application, and she does not cite to any treatment records
where this requirement is stated otherwise. As stated above, the ALJ properly discounted the
weight of Dr. Hunter’s opinion because of a lack of consistency with his own treatment records,
thus there was no error in the ALJ’s disregard of this information.
Finally, Ms. Bivens argues the ALJ erroneously found that her activities of daily living
were inconsistent with her symptom testimony, and that sporadic physical activity does not
indicate that an individual is capable of full-time work. While it is true that activities of daily
living alone are not substantial evidence that would undermine a claimant’s subjective
complaints about pain or other symptoms, Clifford, 227 F.3d at 872, the ALJ does not solely cite
to Ms. Bivens’s daily activities as a basis for her credibility determination. The ALJ’s opinion
indicates that she considered the record as a whole in making a credibility determination, and the
Court finds that the ALJ provided adequate support and explanations for her conclusion. See
Powers, 207 F.3d at 435 (credibility determination upheld where it was based upon “a variety of
facts and observations”). Thus, the Court finds that the ALJ’s credibility determination is not
patently wrong.

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V.

CONCLUSION

For the reasons set forth above, the final decision of the Commissioner is AFFIRMED.
SO ORDERED.
03/29/2013
Date: _____________

________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana

DISTRIBUTION:
Joseph W. Shull
[e-mail]
Thomas E. Kieper
OFFICE OF THE UNITED STATES ATTORNEY
[e-mail]

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