TRITTIN v. COLVIN
ENTRY - The Commissioner of Social Security denied Tracy Trittin's applications for disability-insurance and supplemental-security-income benefits under Titles II and XVI of the Social Security Act. Ms. Trittin now sues for judicial review of that denial. Ms. Trittin has not shown that the ALJ's decision is not supported by substantial evidence or the product of legal error, the Commissioner's denial of her claims for disability benefits will be affirmed. Signed by Magistrate Judge Denise K. LaRue on 3/20/2015.(CKM)
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF INDIANA,
CAUSE NO. 1:13-cv-1701-DKL-SEB
CAROLYN COLVIN, Commissioner of
The Commissioner of Social Security denied Tracy Trittin’s applications for
disability-insurance and supplemental-security-income benefits under Titles II and XVI
of the Social Security Act. Ms. Trittin now sues for judicial review of that denial.
Judicial review of the Commissioner’s factual findings is deferential: courts must
affirm if her findings are supported by substantial evidence in the record. 42 U.S.C. '
405(g); Skarbek v. Barnhart, 390 F.3d 500, 503 (7th Cir. 2004); Gudgel v. Barnhart, 345 F.3d
467, 470 (7th Cir. 2003). Substantial evidence is more than a scintilla, but less than a
preponderance, of the evidence. Wood v. Thompson, 246 F.3d 1026, 1029 (7th Cir. 2001). If
the evidence is sufficient for a reasonable person to conclude that it adequately supports
the Commissioner’s decision, then it is substantial evidence. Richardson v. Perales, 402
U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Carradine v. Barnhart, 360 F.3d 751, 758
(7th Cir. 2004). This limited scope of judicial review derives from the principle that
Congress has designated the Commissioner, not the courts, to make disability
In reviewing the decision of the ALJ [administrative law judge], 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
Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004). Carradine, 360 F.3d at 758. While
review of the Commissioner=s factual findings is deferential, review of her legal
conclusions is de novo. Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010).
The Social Security Act defines disability 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); 20 C.F.R. § 404.1505(a). 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. ' 416.905(a). A
person will be determined to be disabled only if his impairments “are of such severity
that he is not only unable to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of substantial gainful work
which exists in the national economy, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work.” 42 U.S.C. §§ 423(d)(2)(A) and
1382c(a)(3)(B). 20 C.F.R. §§ 404.1505, 404.1566, 416.905, and 416.966. The combined effect
of all of an applicant’s impairments shall be considered throughout the disability
determination process. 42 U.S.C. '§ 423(d)(2)(B) and 1382c(a)(3)(G). 20 C.F.R. §§ 404.1523
The Social Security Administration has implemented these statutory standards in
part by prescribing a “five-step sequential evaluation process” for determining disability.
If disability status can be determined at any step in the sequence, an application will not
be reviewed further. At the first step, if the applicant is currently engaged in substantial
gainful activity, then he is not disabled. At the second step, if the applicant’s impairments
are not severe, then he is not disabled. A severe impairment is one that “significantly
limits [a claimant’s] physical or mental ability to do basic work activities.” Third, if the
applicant’s impairments, either singly or in combination, meet or medically equal the
criteria of any of the conditions included in the Listing of Impairments, 20 C.F.R. Pt. 404,
Subpt. P, Appendix 1, Part A, then the applicant is deemed disabled. The Listing of
Impairments are medical conditions defined by criteria that the Social Security
Administration has pre-determined are disabling. 20 C.F.R. ' 404.1525. If the applicant’s
impairments do not satisfy the criteria of a listing, then her residual functional capacity
(“RFC”) will be determined for the purposes of the next two steps. RFC is an applicant’s
ability to do work on a regular and continuing basis despite his impairment-related
physical and mental limitations and is categorized as sedentary, light, medium, or heavy,
together with any additional non-exertional restrictions.
At the fourth step, if the
applicant has the RFC to perform his past relevant work, then he is not disabled. Fifth,
considering the applicant’s age, work experience, and education (which are not
considered at step four), and his RFC, the Commissioner determines if he can perform
any other work that exists in significant numbers in the national economy. 42 U.S.C. '
The burden rests on the applicant to prove satisfaction of steps one through four.
The burden then shifts to the Commissioner at step five to establish that there are jobs
that the applicant can perform in the national economy. Young v. Barnhart, 362 F.3d 995,
1000 (7th Cir. 2004). If an applicant has only exertional limitations that allow her to
perform the full range of work at her assigned RFC level, then the Medical-Vocational
Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2 (the “grids”), may be used at step
five to arrive at a disability determination.
The grids are tables that correlate an
applicant’s age, work experience, education, and RFC with predetermined findings of
disabled or not-disabled. If an applicant has non-exertional limitations or exertional
limitations that limit the full range of employment opportunities at his assigned work
level, then the grids may not be used to determine disability at that level. Instead, a
vocational expert must testify regarding the numbers of jobs existing in the economy for
a person with the applicant’s particular vocational and medical characteristics. Lee v.
Sullivan, 988 F.2d 789, 793 (7th Cir. 1993). The grids result, however, may be used as an
advisory guideline in such cases.
An application for benefits, together with any evidence submitted by the applicant
and obtained by the agency, undergoes initial review by a state-agency disability
examiner and a physician or other medical specialist. If the application is denied, the
applicant may request reconsideration review, which is conducted by different disability
and medical experts. If denied again, the applicant may request a hearing before an
administrative law judge (“ALJ”).1 An applicant who is dissatisfied with the decision of
the ALJ may request the SSA’s Appeals Council to review the decision. If the Appeals
Council either affirms or declines to review the decision, then the applicant may file an
action in district court for judicial review. 42 U.S.C. ' 405(g). If the Appeals Council
declines to review a decision, then the decision of the ALJ becomes the final decision of
the Commissioner for judicial review.
In her applications, Ms. Trittin reported that she suffers from fibromyalgia, a heart
condition (possible bradycardia), nausea, and asthma. (R. 182, 215.) Later, she alleged
By agreement with the Social Security Administration, initial and reconsideration reviews in
Indiana are performed by an agency of state government, the Disability Determination Bureau, a division
of the Indiana Family and Social Services Administration. 20 C.F.R. Part 404, Subpart Q (' 404.1601, et seq.).
Hearings before ALJs and subsequent proceedings are conducted by personnel of the federal Social
that she suffers from chronic obstructive pulmonary disease, migraines, and pain
disorders, as well. She asserts that she suffers nausea, vomiting, dry heaves, diarrhea,
irritable bowl syndrome, fatigue, and weakness as side effects of her fibromyalgia, which
render her unable to maintain the stamina, persistence, and pace to perform substantial
gainful activity. At most, she contends that she could perform a part-time job two to three
days a week, lying down every day. (Brief of Plaintiff [doc. 28] at 5-6.) Ms. Trittin has
been represented by current counsel from her application to the present. (R. 215.)
Ms. Trittin’s claims were denied on initial and reconsideration reviews, (R. 87-108),
and she received a hearing before an ALJ, (R. 38-86). Ms. Trittin, her boyfriend with
whom she has co-habited for one and one-half years, and a vocational expert testified.
Ms. Trittin’s counsel submitted emergency-room notes on the day before the hearing, (R.
501-09 (Exhibit 22F)), and the ALJ held open the record to receive additional evidence, (R.
17, 41, 45-46, 48, 85).2 After the hearing, Ms. Trittin submitted to the ALJ additional
records from John Hague, M.D., rheumatologist, (R. 17, 522-62 (Exhibit 24F)), and
Stephen R. Pfeifer, M.D., and staff, (R. 17, 563-672 (Exhibit 25F)).
At step one, the ALJ determined that Ms. Trittin has not engaged in substantial
gainful activity since her alleged disability-onset date in March 2010. At step two, the
ALJ found that she suffers from the following severe impairments:
asthma/chronic obstructive pulmonary disease, bradycardia, migraines, depression,
2 Records from Theodore Nukes, M.D., neurologist, that had been received earlier but not given an
exhibit number by the time of the hearing, also were added to the record. (R. 17, 510-21 (Exhibit 23F).)
pain disorder associated with both psychological factors and a general medical condition,
and history of cannabis use.
The ALJ found that seizure, nausea, diarrhea, and
hypertension are not severe impairments. At step three, the ALJ found that Ms. Trittin
does not have impairments, severe and non-severe, singly or in combination, that satisfy
any of the conditions in the listing of impairments. She examined the listings for chronic
pulmonary insufficiency (3.02), asthma (3.03), cardiovascular system (4.00 series),
affective disorders (12.04), and substance-addiction disorders (12.09).
For steps four and five, the ALJ determined Ms. Trittin’s RFC. She found that Ms.
Trittin has the RFC to perform at the sedentary, light, and medium levels of exertion with
the following additional restrictions: she must avoid certain environmental conditions;3
she can understand, remember, and carry out short, simple instructions; she can sustain
attention for two-hour segments; she can tolerate contact with co-workers, supervisors,
and the general public; and she can adapt as needed in work settings involving routine
At step four, the ALJ found that this RFC prevents Ms. Trittin performing her past
relevant work. At step five, relying on the testimony of the vocational expert, the ALJ
found that a significant number of jobs exists in the national economy with Ms. Trittin’s
RFC, age (younger individual age 18 to 49), transferability of skills (unskilled), and
The ALJ found that Ms. Trittin must avoid concentrated exposure to humidity, fumes, odors,
dusts, and gases, and she must avoid poor ventilation.
education (limited, with the ability to communicate in English). Therefore, the ALJ found
that Ms. Trittin is not disabled and denied her benefits claims.
Ms. Trittin asked the Appeals Council to review the ALJ’s decision and submitted
additional records from Joseph Dominik, M.D., to it. (R. 6, 9, 10, 673-710 (Exhibit 26F).)
After reviewing the additional evidence, the Appeals Council denied review, (R. 6),
which rendered the ALJ’s decision the Commissioner’s final decision on Ms. Trittin’s
claims and the one that the Court reviews.
Ms. Trittin argues that the ALJ’s decision is erroneous on several grounds.
1. Failure to give controlling weight to the opinions of Ms. Trittin’s treating
physicians. Ms. Trittin argues that the ALJ failed to give the controlling weight that was
due to the opinions of her treating physicians Drs. Hague, Pfeifer, and Dominik4 “in
respect to Claimant’s diagnosis of fibromyalgia” and, thus, “failed to give proper
credibility to the severity and limitations imposed by the Claimant’s fibromyalgia and
the other conditions as a result of this impairment, namely frequent nausea, migraine
headaches, irritable bowel syndrome and diarrhea.” (Brief of Plaintiff at 6.) According to
her, the ALJ “disregarded her primary impairment of fibromyalgia.” (Id.) She concludes
by asserting that “[i]t is clear from the testimony that the Claimant’s fibromyalgia is a
4 In her reply, Ms. Trittin added Drs. Nukes, Gupta, and Harris to the list of her treating physicians
whose opinions were due controlling weight. (Plaintiff’s Reply to Defendant’s Memorandum in Support of the
Commissioner’s Decision [doc. 36] (“Reply”) at 3.) However, because this argument was first raised in her
reply, it is forfeited.
medically determinable impairment and that she meets the criteria of 2010 under SSR 122p.” (Id. at 15.)
Ms. Trittin fails to identify the specific opinions of her treating physicians to which
she contends the ALJ failed to give controlling weight. Instead, she describes criteria for
a diagnosis of fibromyalgia and the findings of these physicians showing that certain of
these criteria were present, and she emphasizes that they all diagnosed her with
fibromyalgia. But the ALJ accepted their diagnoses and specifically found that Ms. Trittin
has the severe impairment of fibromyalgia; thus, she gave their opinions controlling
weight to that extent. The ALJ’s significant finding was that Ms. Trittin’s functional
limitations resulting from her impairments, including fibromyalgia, did not amount to
disability and, with regard to this finding, Ms. Trittin fails to identify any contradictory
opinions by her treating physicians. When the Commissioner pointed this out in her
response ― that diagnosis does not equal functional disability ― Ms. Trittin replied by
simply repeating her assertions that the ALJ “failed to acknowledge or recognize the
severity of her fibromyalgia” and that her physicians have diagnosed fibromyalgia.
In her reply, Ms. Tritten adds that her physicians treated her for fibromyalgia and
that “none of them disputed her allegations of pain, the severity of the pain, of migraines,
of nausea and vomiting associated with any of the doctors’ diagnosis [sic].” (Reply at 1,
2.) But her physicians’ treatments of her fibromyalgia, while confirming their diagnoses,
still do not address the degree of functional limitation caused thereby. In addition, the
absence of an opinion disputing any of Ms. Trittin’s allegations does not constitute an
opinion fully confirming her allegations.
The Court will not search through the evidence originating from Drs. Hague,
Pfeifer, and Dominik for an opinion on Ms. Trittin’s functional limitations to which the
ALJ should have given controlling weight. If such opinions exist in the record, and they
are helpful to Ms. Trittin’s assertion that she is disabled, then the Court assumes that they
would have been cited by her.
Ms. Trittin has not shown error in the ALJ’s according of weight to her treating
2. Miscellaneous errors. Ms. Trittin includes some arguments under the previous
heading that appear, instead, to be independent arguments.
a. Prejudging RFC. Ms. Trittin argues that the ALJ erroneously first determined
her RFC and then evaluated whether the evidence of record was consistent with it,
contrary to the holding in Reindl v. Astrue, No. 09-C-2695, Memorandum Opinion and Order,
2010 WL 2893611, *12 (N.D. Ill., July 22, 2010) (“[T]he ALJ’s refusal to consider Dr. Katz’s
opinion to the extent it was inconsistent with the RFC the ALJ adopted puts the cart
before the horse. the ALJ is not at liberty to first create an RFC and then disregard the
evidence that may contradict it.”).
First, as a district-court decision, Reindl is not
precedential or otherwise binding on this court. TMF Tool Co., Inc. v. Muller, 913 F.2d
1185, 1191 (7th Cir. 1990). Second, the Court finds no indication that the ALJ pre10
determined Ms. Trittin’s RFC and then evaluated the evidence against it, in other words,
that the ALJ “ignor[ed] almost all of the medical evidence and facts that contradict that
RFC” and “basically ignored the medical evidence supporting the Claimant’s
(Id. at 12.)
To the contrary, the ALJ’s discussion reveals that she
considered the evidence of record and arrived at an RFC based thereon. The ALJ’s
statements that, for example, nothing in the clinical signs suggests that her RFC is
unreasonable, (R. 29), and Ms. Trittin reported activities of daily living that were not
inconsistent with her RFC, (R. 27), are matters of phrasing and do not indicate a
prejudging of RFC untethered to the record evidence.
Ms. Trittin asserts conclusorily that the ALJ ignored evidence of fibromyalgia and
its effects and/or should have devoted more time to discussing her treating
physicians’ records. But, again, she fails to identify specific items of evidence in the
record that the ALJ was required to explicitly address and the specific effects of
that evidence on showing disability. She asserts that the ALJ failed to discuss the
many pages of the physicians’ reports regarding her fibromyalgia, including her
trigger-point tests and the impairments side effects, (id. at 13), but, other than the
trigger-point tests, she does not identify specific evidence in those reports that are
significant enough to have required explicit address by the ALJ. Because the ALJ
accepted the diagnosis of fibromyalgia as a severe impairment, it is not evident that
specific discussion of the trigger-point tests was required.
Ms. Trittin has not shown that the ALJ prejudged her RFC, evaluated the record
evidence against that RFC, or ignored evidence relevant to RFC.
Dr. Bangura’s opinion.
Ms. Tritten argues that the ALJ impermissibly
diminished Dr. Bagura’s opinion that she was unable to walk or stand for two hours,
frequently lift or carry less than ten pounds, or occasionally lift or carry more than ten
pounds. (Brief of Plaintiff at 14.) On request of the state agency, Luella Bangura, M.D., an
internist, conducted a consultative examination of Ms. Trittin. (R. 25.) In her report of
that examination, (R. 481-85 (Exhibit 18F)), under the heading “Medical Source
Statement,” Dr. Bangura recorded the described functional limitations for Ms. Trittin. (R.
484.) Ms. Tritten argues that the ALJ simply rejected Dr. Bangura’s opinion because it
was contrary to the ALJ’s predetermined RFC, which the ALJ adopted from Dr. Whitley,
M.D., a non-examining state-agency reviewer. Ms. Trittin contends that Dr. Bangura’s
opinion is more in line with the evidence than is Dr. Whitley’s.
The Court will not reweigh Dr. Bangura’s opinion against Dr. Whitley’s. It was
Ms. Trittin’s burden to show that the ALJ’s weighing of their reports is not supported by
substantial evidence or is the result of legal error and she has not done so. The ALJ
discussed Dr. Bangura’s examination report, (R. 25-26), and then evaluated her opinion,
(R. 29). The ALJ gave Dr. Bangura’s opinion regarding Ms. Trittin’s functional limitations
“[o]nly some weight” because she found that it was not consistent with the overall record
or Dr. Bangura’s own findings. (R. 29.) She found that few findings were indicated to
support Dr. Bangura’s opinions and most of the findings were normal, which was
consistent with the normal results found by Dr. Harris, one of Ms. Trittin’s treating
physicians, during his examination a few months later. The ALJ concluded that Dr.
Bangura’s opinion apparently was based on Ms. Trittin’s self-reports of limitations rather
than her examination findings. The ALJ wrote that, “[t]o the extent that this was during
a period of exacerbation of fibromyalgia, the frequency and intensity of the flare is not
corroborated to the extent alleged and does not appear to meet the durational
requirements of the Act.” (R. 29.) There is no support here for Ms. Trittin’s argument
that the ALJ discounted Dr. Bangura’s opinion simply because it was inconsistent with
her predetermined RFC.
c. Return-to-work releases. The ALJ observed that, (1) in October 2010, Dr.
Dominik, whom Ms. Trittin was seeing for treatment of her fibromyalgia, wrote in a
treatment note that she “may return to work 17 Oct”, (R. 352), and (2) in December 2011
and February 2012, Dr. Harris, a family-care physician who examined Ms. Trittin in those
months, completed forms stating that she “will be able to return to work” in those
months, (R. 29, 496, 500).
The ALJ interpreted these notes to mean that neither Dr.
Dominik nor Dr. Harris gave an indication of permanent work restrictions or permanent
disability at the times. (R. 28, 29.)
In her opening brief, Ms. Trittin argues that the ALJ’s inference was erroneous
because, since she had been working only part-time beforehand, the doctors were
releasing her only to the type of work that she performed before, not full-time work or
substantial gainful activity. (Brief of Plaintiff at 14-15.) In her reply, Ms. Trittin adds the
assertion that both doctors “recognized that [she] was working part time at McDonalds.
No explanation of any restriction was necessary except that she could attempt to go back
to doing what she was doing.” (Reply at 3.) Thus, Ms. Trittin argues that the only
reasonable inference is that both doctors’ releases were for part-time work and do not
indicate they believed that she had no restrictions inconsistent with full-time work.
The problem with Ms. Trittin’s argument is that the work releases, on their faces,
are not limited to part-time work and she fails to cite evidence that the doctors were
aware that she was working only part-time and that they intended to limit her to return
to no more than the part-time work that she had been performing.5 In addition, the ALJ
interpreted Dr. Harris’s work releases as showing only that the doctor indicated no
permanent work restrictions, (R. 29), which is indisputable on their faces, and, although
the ALJ inferred more from Dr. Dominik’s release ― viz., that the doctor did not believe
that Ms. Trittin was permanently disabled ― Ms. Trittin has failed to show that the ALJ’s
inference was inherently unreasonable or otherwise unsupported by substantial
2. Credibility. The ALJ gave several reasons for not fully crediting Ms. Trittin’s
statements about the intensity, persistence, and limiting effects of her symptoms. First,
Ms. Trittin did not cite evidence already in the record and neither did she obtain and submit
supplemental clarifying opinions from either physician. As noted, the ALJ held open the record for, and
received, additional evidence before her decision and, after receiving the ALJ’s decision, Ms. Trittin
submitted even more evidence to the Appeals Council.
based on Ms. Trittin’s testimonial demeanor at the hearing, the ALJ found that her
credibility as a witness was poor.
Second, the ALJ found inconsistencies between Ms. Trittin’s symptom statements
and the evidence of record: (1) she received only conservative treatment; (2) she testified
that Dr. Dominik stated that nausea was a side effect of her fibromyalgia but treatment
notes by the doctor showed only a diagnosis of resolved nausea; (3) the objective medical
evidence did not establish that nausea is a side effect of her fibromyalgia; (4) Ms. Trittin
testified that she had a seizure in January 2011 but follow-up CT, MRI, and EEG
examinations were normal, otherwise negative, and showed no epilepsy, clear sharp
waves, or spikes; (5) despite her many complaints, the record indicates mostly normal
examination and test findings and no physician has noted overt concern about her health
status; (6) although her fibromyalgia waxes and wanes during periods of exacerbation,
the frequency and intensity of such occurrences is not corroborated to the extent that Ms.
Trittin alleges; (7) although she testified that Dr. Dominik limited her to lifting twentyfive pounds, that limitation does not appear in the doctor’s records; and (8) Ms. Trittin
alleged breathing difficulties (asthma and C.O.P.D.) but she smoked one pack of
cigarettes each day, obtained a new cat, and respiratory testing was generally normal.
Third, the ALJ found that Ms. Trittin was untruthful and not forthcoming with her
physicians regarding her illegal drug use. Fourth, her reported activities of daily living
are not inconsistent with the ALJ’s defined RFC. Fifth, the ALJ could not rule out that
Ms. Trittin’s lack of finances could be a strong impetus for her claims for benefits.6
S.S.R. 96-7p requires adjudicators’ decisions to “contain specific reasons for the
finding on credibility, supported by the evidence in the case record, and must be
sufficiently specific to make clear to the individual and any subsequent reviewers the
weight the adjudicator gave to the individual’s statements and the reasons for that
weight.” A credibility finding “cannot be based on an intangible or intuitive notion about
an individual’s credibility. The reasons for the credibility finding must be grounded in
the evidence and articulated in the determination or decision.” Credibility findings may
be informed by the claimant’s testimonial demeanor:
In instances where the individual attends an administrative proceeding
conducted by the adjudicator, the adjudicator may also consider his or her
own recorded observations of the individual as part of the overall
evaluation of the credibility of the individual’s statements.
S.S.R. 96-7p. However:
In instances in which the adjudicator has observed the individual, the
adjudicator is not free to accept or reject the individual’s complaints solely
on the basis of such personal observations, but should consider any
Ms. Trittin also cites, as an improper credibility finding, the ALJ’s inference from the lack of
documentation establishing the bases for her six visits to an emergency room in March 2012 that the
information “would not be helpful to [her] case.” (Brief of Plaintiff at 20; R. 27-28.) Ms. Trittin argues that,
although she submitted all of the records of these trips that she had, (R. 501-09), which are all that ordinarily
would have been produced regarding the visits, the ALJ implied that the lack of unidentified additional
documentation meant that she was trying to hide something. The Court does not agree that the ALJ drew
a negative credibility inference from the lack of additional documentation regarding the emergency-room
visits. The ALJ wrote only that she inferred that any information in the missing records would not have
been helpful to Ms. Trittin’s case. Thus, although the ALJ failed to identify the nature of the records that
she believed were missing and she might have been mistaken that the hospital would have produced
additional documents, there is no indication that the ALJ discredited Ms. Trittin’s statements on that basis.
personal observations in the overall evaluation of the credibility of the
Because an ALJ is in the best position to determine a witness’s credibility, courts
should not overturn such a determination unless it is patently wrong, meaning that it
lacks any explanation or support. Shideler v. Astrue, 688 F.3d 306, 310 (7th Cir. 2012);
Skarbek v. Barnhart, 390 F.3d 500, 505 (7th Cir. 2004); Elder v. Astrue, 529 F.3d 408, 413 (7th
Ms. Trittin argues that the ALJ’s credibility finding is erroneous for several
First, regarding the ALJ’s determination that she had poor testimonial credibility,
Ms. Trittin argues that she was respectful, forthright, and honest during her testimony;
her testimony was consistent with other witnesses and the record evidence; and the ALJ
failed to provide the required specific reasons to support her determination, rendering it
unreviewable. Second, Ms. Trittin points to physicians’ statements (one, by a stateagency reviewer, and the other, by a physician to whose opinions the ALJ gave “great
weight”) that Ms. Trittin demonstrated her best efforts on examinations and did not
engage in symptom exaggeration.
Third, she points to the fact that no physician
expressed that Ms. Trittin was lying or embellishing. Fourth, she argues that other
witnesses ― her boyfriend, Keith Wilkes, who lives with her, and a friend, Teresa Worley,
who has known her for fifteen years and also has fibromyalgia and, therefore,
understands the condition ― corroborated her specific testimony regarding symptom
severity and functional limitations. Fifth, the ALJ misinterpreted her positive drug-test
results and erroneously found that she lied to one of her physicians about no longer using
illegal drugs. Sixth, her smoking and acquiring a cat are unrelated to her ability to work
a full-time job due to fibromyalgia. Finally, seventh, the ALJ improperly equated her
ability to perform activities of daily living to the ability to perform the demands of a fulltime job, an example of ALJ naiveté about which the Court of Appeals has repeatedly
warned. The Court addresses each of these arguments.
“Credibility determinations can rarely be disturbed by a reviewing court, lacking
as it does the opportunity to observe the claimant testifying.” Curvin v. Colvin, ___ F.3d
___, 2015 WL 542847, *4 (7th Cir., Feb. 11, 2015). The ALJ specifically found that Ms.
Trittin’s testimonial credibility was poor, based on her personal observation of Ms.
Trittin’s testimony ― “her demeanor, the way she answered questions, and all of the other
factors that go into assessing a witness’ credibility.” (R. 26.) This type of credibility
determination, based on direct personal observation, is almost impossible to find
erroneous. See Bates v. Colvin, 736 F.3d 1093, 1098 (7th Cir. 2013) (“An ALJ’s credibility
determination is entitled to deference, and we will overturn a credibility finding only if
it is ‘patently wrong.’ . . . But when a credibility finding rests on ‘objective factors or
fundamental implausibilities,’ rather than on a claimant’s demeanor or other subjective
factors, we have greater leeway to evaluate the ALJ’s determination.”
omitted)); Connor ex rel. I. C. v. Astrue, No. 11-C-8736, Memorandum Opinion and Order,
2012 WL 6720542, *6 n. 4 (N.D. Ill., Dec. 27, 2012) (“. . . demeanor can rarely be effectively
determined on review.”).
Ms. Trittin’s belief that she testified respectfully and
forthrightly is merely a disagreement with the ALJ’s impressions, but does not show
error. In addition, the ALJ gave sufficient reasons for this “demeanor” component of her
credibility finding to enable review. Ms. Trittin cited no authority requiring an ALJ to
catalog the multifarious and often indefinable and indescribable elements of a witness’s
demeanor and manner before a court may defer to the ALJ’s personal observations. See
Snyder v. Louisiana, 552 U.S. 472, 477 (2008); United States v. Raddatz, 447 U.S. 667, 679
(1980) (“’The most careful note [“of witnesses’ prior testimony”] must often fail to convey
the evidence fully in some of its most important elements. . . . It cannot give the look or
manner of the witness:
his hesitation, his doubts, his variations of language, his
confidence or precipitancy, his calmness or consideration; . . . the dead body of the
evidence, without its spirit; which is supplied, when given openly and orally, by the ear
and eye of those who receive it.’” (Quoting Queen v. Bertrand, 4 Moo.P.C.N.S. 460, 481, 16
Eng.Rep. 391, 399 (1867))).
Ms. Trittin’s reliance on physicians’ opinions that she put forth her best efforts on
examinations and did not exaggerate her symptoms are, in essence, credibility
determinations by the physicians and, while the ALJ should, and did, consider them, she
was not bound by them. The physicians’ impressions do not show that the ALJ’s
independent credibility finding, which was based also on evidence and factors not
considered by the physicians, was erroneous. Likewise, the ALJ was not bound by Mr.
Wilkes’ and Ms. Worley’s statements that (Ms. Trittin contends) confirm her own. The
ALJ gave reasons for not fully crediting these witnesses’ accounts, (R. 29),7 and, again,
her credibility finding was based on a broader base of facts and factors than these
witnesses’ observations were.
The Court does not find that ALJ misinterpreted the evidence regarding Ms.
Trittin’s drug-test results or the evidence that she was not completely honest with her
physicians regarding her drug use. Ms. Trittin’s arguments again improperly ask the
Court to reweigh the evidence and draw different inferences than the ALJ did.
Ms. Trittin’s argument that the ALJ’s discounting of her statements based on her
cigarette smoking and acquisition of a cat is erroneous because neither is related to
her inability to work due to fibromyalgia because the ALJ cites those facts not as direct
indicators of Ms. Trittin’s ability to work in general or of the severity of her fibromyalgia
The ALJ wrote: “There is no indication that these individuals are medically trained to make
exacting observations as to dates, frequencies, types and degrees of medical signs and symptoms, or of the
frequency or intensity of unusual moods or mannerisms, and therefore the accuracy of the statements are
questionable. Moreover, by virtue of an indicated relationship with the claimant, these individuals cannot
be considered disinterested third party witnesses whose statements would not tend to be influenced by
affection for the claimant and a natural tendency to agree with the symptoms and limitations the claimant
alleges. Most importantly, significant weight cannot be given to the third party statements because it, like
the claimant’s statements, are simply not consistent with the preponderance of the opinions and
observations by credible medical doctors in this case.” (R. 29.)
Ms. Trittin argues that lay witnesses, by definition, do not have medical training, yet the
regulations and rules require ALJs to consider their statements, and an assumption that “interested”
witnesses are not telling the truth is insupportable because witnesses who are closest to a claimant can be
the best witnesses of her symptoms and limitations. However, it is evident that the ALJ did consider these
witnesses’ statements but she also considered factors that tended to discount their credibility. The ALJ also
observed Mr. Wilkes’s testimony at the hearing. Arguing that the ALJ should have given the witnesses’
statements more weight than she did is asking the Court to reweigh the evidence, which the Court cannot
do. It also asks the Court to not defer to the ALJ’s credibility findings, which the Court will not do based
solely on Ms. Trittin’s argument.
in particular, but as indicators of her overall credibility and, thus, only indirect indicators
of the credibility of her subjective statements regarding the functional limitations that her
impairments, including her fibromyalgia, impose.
Finally, Ms. Trittin argues that the ALJ improperly equated her ability to perform
activities of daily living to the ability to perform the demands of a full-time job, which
the Court of Appeals for the Seventh Circuit has cautioned courts against. However, Ms.
Trittin again misreads the ALJ’s decision. The ALJ did not equate Ms. Trittin’s activities
of daily living with the ability to perform a full-time job; rather, she found that Ms.
Tritten’s reported activities of daily living are not inconsistent with the ALJ’s defined
RFC. The ALJ considered the entire record to define that RFC and to determine that there
are jobs that Ms. Trittin can perform.
Ms. Trittin has not shown that the ALJ erred in her credibility finding.
Because Ms. Trittin has not shown that the ALJ’s decision is not supported by
substantial evidence or the product of legal error, the Commissioner’s denial of her claims
for disability benefits will be affirmed.
DONE this date: 03/20/2015
Denise K. LaRue
United States Magistrate Judge
Southern District of Indiana
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