BEATTY v. COLVIN

Filing 23

**PLEASE DISREGARD, FILED IN ERROR**ORDER ADOPTING REPORT AND RECOMMENDATIONS for Order for Report and Recommendations - The Court finds that substantial evidence supports the ALJ's decision that Robert Beatty is not entitled to Disability In surance Benefits. The Magistrate Judge therefore recommends that the Commissioner's decision be AFFIRMED. Any objections to the Magistrate Judge's Report and Recommendation shall be filed with the Clerk in accordance with 28 U.S.C. § ; 636(b)(1) and Fed. R. Civ. P. 72(b), and failure to timely file objections within fourteen days after service shall constitute a waiver of subsequent review absent a showing of good cause for such failure. Signed by Magistrate Judge Mark J. Dinsmore on 3/12/2015.(MGG) Modified on 3/13/2015 (MGG).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ROBERT W. BEATTY,

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Plaintiff,
vs.
CAROLYN W. COLVIN Acting
Commissioner of Social Security,
Defendant.

No. 1:14-cv-01139-JMS-MJD

REPORT AND RECOMMENDATION
Robert Beatty (“Plaintiff” or “Beatty”) requests judicial review of the final decision of
the Commissioner of the Social Security Administration (“Commissioner”) denying his
application for Social Security Disability Insurance Benefits (“DIB”) under Title II of the Social
Security Act (“the Act”). See 42 U.S.C. §§ 416(i), 423(d). For the reasons set forth below, the
Magistrate Judge recommends that the decision of the Commissioner be AFFIRMED.
Procedural History and Background
Beatty filed an application for DIB on November 2, 2011, alleging an onset of disability
on May 11, 2011. [R. at 17.] At the time of his application, he had past work experience as a
heavy equipment operator, press operator, forklift operator, and team leader. [R. at 26, 37, 40.]
He alleged disability due to chronic obstructive pulmonary disease (“COPD”); shoulder, neck,
and back pain; degenerative disc disease; left eye enucleation; and obesity. [R. at 19, 152; see
also Dkt. 17 at 2 (Pl.’s Br.).] 1

1

Plaintiff recited the relevant factual and medical background in more detail in his opening brief. [See Dkt. 17.] The
Commissioner, unless otherwise noted herein, does not dispute these facts. [See Dkt. 20.] Because these facts
involve Plaintiff’s confidential and otherwise sensitive medical information, the Court will incorporate by reference
the factual background in the parties’ briefs and will articulate only specific facts as needed herein.

1

Beatty’s application was denied initially on December 29, 2011 and on reconsideration
on April 9, 2012. [R. at 17.] Beatty requested a hearing, which occurred before Administrative
Law Judge (“ALJ”) Belinda Brown on February 25, 2013. [R. at 31.] Also present at the hearing
were Plaintiff’s attorney, Stacy Crider, and a vocational expert, Robert Barber. [Id.] The ALJ
determined that Plaintiff had not been under a disability at any time from the alleged date of
onset through the date of the ALJ’s March 4, 2013 decision. [R. at 26-27.] The Appeals Council
denied Plaintiff’s request for review on May 6, 2014, [R. at 1-3], rendering the ALJ’s decision
final. Plaintiff filed his complaint with this Court on July 8, 2014. 2 [Dkt. 1.]
Applicable Standard
To be eligible for SSI or DIB, a claimant must have a disability under 42 U.S.C. §
423. 3 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 his physical or mental limitations prevent him from doing not only his previous work, but
any other kind of gainful employment which exists in the national economy, considering his age,
education, and work experience. 42 U.S.C. § 423(d)(2)(A).
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, he is

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Although a claimant has only 60 days to request judicial review of the Appeals Council’s denial, the 60 days do
not begin to run until the claimant receives notice of the Council’s decision. [See R. at 2.] Unless the claimant shows
otherwise, this notice is assumed to occur five days after the date of the Council’s decision, [see id.], such that
Plaintiff’s complaint in this case was timely.
3
In general, the legal standards applied in the determination of disability are the same regardless of whether a
claimant seeks DIB or SSI. 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 court decisions.

2

not disabled despite his medical condition and other factors. 20 C.F.R. § 404.1520(b). At step
two, if the claimant does not have a “severe” impairment (i.e., one that significantly limits his
ability to perform basic work activities), he is not disabled. 20 C.F.R. § 404.1520(c). 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. pt. 404, subpt. P, App. 1, and whether the impairment meets the twelvemonth duration requirement; if so, the claimant is disabled. 20 C.F.R. § 404.1520(d). At step
four, if the claimant is able to perform his past relevant work, he is not disabled. 20 C.F.R. §
404.1520(f). At step five, if the claimant can perform any other work in the national economy, he
is not disabled. 20 C.F.R. § 404.1520(g).
In reviewing the ALJ’s decision, the ALJ’s findings of fact are conclusive and must be
upheld by this Court “so long as substantial evidence supports them 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. 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). 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). To be affirmed, the ALJ
must articulate her analysis of the evidence in her decision; while she “is not required to address
every piece of evidence or testimony,” she must “provide some glimpse into her reasoning . . .
[and] build an accurate and logical bridge from the evidence to her conclusion.” Dixon, 270 F.3d
at 1176.

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The ALJ’s Decision
The ALJ first determined that Plaintiff met the insured status requirements of the Act
through December 31, 2015. [R. at 19.] Applying the five-step analysis, the ALJ found at step
one that Plaintiff had not engaged in substantial gainful activity (“SGA”) since May 11, 2011,
the alleged onset date. [Id.] At step two, the ALJ found that Plaintiff suffered from the severe
impairments of left eye enucleation and obesity. [Id.] She also noted that Plaintiff had
degenerative disc disease, acromioclavicular joint diastasis, and lymphatoid papulosis, but she
concluded that these impairments were not severe because they had no more than a mild
limitation on Plaintiff’s ability to perform basic work activities. [Id.] Finally, she observed that
Plaintiff alleged that he suffered from chronic obstructive pulmonary disease (“COPD”), but she
determined that this allegation was not supported by the medical evidence and was therefore not
a medically determinable impairment. 4 [R. at 20.]
At step three, the ALJ found that Plaintiff did not have an impairment or combination of
impairments that met or medically equaled a Listed impairment. [R. at 20.] She specifically
considered and rejected Listing 2.02 (loss of central visual acuity), Listing 2.03 (contraction of
the visual fields in the better eye), and Listing 2.04 (loss of visual efficiency). [Id.] She also
considered Plaintiff’s obesity with reference to Social Security Ruling (“SSR”) 02-1p. [R. at 21.]
Ultimately, however, she determined that Plaintiff’s obesity had not resulted in loss of function
and had not intensified the severity of his other impairments to the point that his impairments
met or medically equaled any listing. [Id.]

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The ALJ noted that Plaintiff had received albuterol inhalers to treat a respiratory ailment, but she determined that
the inhalers were meant to address bronchitis, rather than COPD. [R. at 20 (citing R. at 206).] Plaintiff does not
challenge the COPD finding, [see Dkt. 17], but, as described below, Plaintiff’s use of inhalers is relevant to the
ALJ’s credibility determination.

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The ALJ next analyzed Plaintiff’s residual functional capacity (“RFC”) and concluded
that Plaintiff could perform the full range of medium work as defined in 20 CFR § 404.1567(c),
except that his field of vision was limited to fifty percent. [R. at 21.] The ALJ then proceeded to
step four of the sequential evaluation process. Relying on testimony from the vocational expert,
she noted that Plaintiff had past relevant work at the “medium” exertional level as a heavy
equipment operator, forklift operator, and press operator. [R. at 26.] She determined that
Plaintiff’s RFC allowed him to perform his past relevant work, and she accordingly concluded
that Plaintiff was not disabled. [Id.]
Discussion
Plaintiff presents three arguments for remand for the ALJ’s decision. He first argues that
the ALJ erred by concluding that his back impairment was not severe. [Dkt. 17 at 9.] He then
argues that the ALJ erred in her negative assessment of Plaintiff’s credibility. [Id.] Finally, he
contends that the ALJ improperly discounted the medical opinions in the record. [Id.] The Court
addresses these arguments in turn.
A. Severity of Plaintiff’s Back Impairment
Plaintiff contends that the ALJ erred at step two by concluding that Plaintiff’s back
impairment was not severe. An impairment or combination of impairments is “severe” if it
“significantly limit[s] [the claimant’s] physical or mental ability to do basic work activities.” 20
C.F.R. § 404.1521(a). This is not a demanding threshold: A finding that an impairment is not
severe is appropriate “when medical evidence establishes only a slight abnormality or a
combination of slight abnormalities which would have no more than a minimal effect on an
individual’s ability to work.” SSR 85-28 (emphasis added). “Great care should be exercised in

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applying the not severe impairment concept.” Id. If the ALJ cannot “determine clearly the effect
of an impairment,” the five-step evaluation process should continue beyond step two. Id.
The claimant bears the burden of establishing a severe impairment. Young v. Sec’y of
Health & Human Servs., 957 F.2d 386, 389 (7th Cir. 1992). As Plaintiff notes, this is not a
demanding burden, [see Dkt. 17 at 11; see also Johnson v. Sullivan, 922 F.2d 346, 347 (7th Cir.
1990)], but it “cannot be satisfied when medical evidence shows that the person has the ability to
perform basic work activities.” SSR 85-28.
Plaintiff argues that the record in this case contains enough evidence to support a finding
that Plaintiff’s back impairment was severe. [Dkt. 17 at 10-12.] Dr. Ryan Whitesell, for instance,
performed a consultative examination for the state disability determination bureau. He observed
that Plaintiff had limitations on the range of motion in his cervical spine, [see, e.g., R. at 208
(“Extension of the cervical spine is limited to 20 degrees. . . . Rotation is limited to 45 [degrees]
on the right and 20 [degrees] on the left.”)], and noted similar limitations in his dorsolumbar
spine. [R. at 208-09 (“Forward flexion of the lumbosacral spine is limited to 60 degrees. . . .
Later bend is . . . limited to 10 [degrees] in the left.).”] Dr. Whitesell also offered a medical
source statement in which he stated that Plaintiff complained of “severe neck and back pain,
which significantly limits his range of motion at both sites.” [R. at 209.] He added that the pain
persisted despite surgery on Plaintiff’s cervical and lumbar spine, [id.], and he noted that
Plaintiff stated that he could walk only one block and climb only one flight of stairs before “he is
limited by back pain.” [R. at 210.] Together, these observations could certainly support a finding
that Plaintiff’s back pain had “more than a minimal effect” on his ability to work, SSR 85-28,
such that the ALJ should have deemed Plaintiff’s back pain severe.

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At the same time, however, other considerations do not support a finding that Plaintiff’s
back impairment was severe. Notably, the most limiting aspects of Whitesell’s medical source
statement—the complaints of “severe” pain and the claimed inability to walk long distances or
climb multiple flights of stairs—were derived from Plaintiff’s subjective complaints, rather than
any sort of diagnostic test. [See, e.g., R. at 207 (emphasis added) (“He complains more today of
his cervical pain.”); R. at 210 (emphasis added) (“He states he can walk around one block[.]”).]
As explained below, the ALJ had ample reason to discount Plaintiff’s credibility, making it
reasonable for the ALJ to accord little weight to the statements relayed by Dr. Whitesell.
In addition, the objective evidence did little to indicate a severe impairment: imaging of
Plaintiff’s spine showed only “mild” degenerative disc changes and only “minimal”
spondylolisthesis. [R. at 211.] Plaintiff correctly notes that functional limitations may in some
cases exceed diagnostic findings, [Dkt. 21 at 2-3], but here, Dr. Whitesell also noted that Plaintiff
had a “steady gait” [R. at 208]; that Plaintiff could “bend over . . . without difficulty” [id.]; and
that Plaintiff could “tandem walk” and “perform a full squat maneuver without difficulty.” [R. at
209.] In light of such findings, the ALJ reasonably concluded that Plaintiff’s back impairments
did not “significantly limit” Plaintiff’s ability to do basic work activities, 20 C.F.R. §
404.1521(a), such that the impairment was not severe.
Ultimately, however, the resolution of the severity issue is unnecessary, for even if the
ALJ did err in determining that Plaintiff’s back pain was not a “severe” impairment, that error
was harmless: At step two of the sequential evaluation process, an error is harmful only if the
ALJ stops his analysis at that step and does not consider Plaintiff’s impairments at future steps.
See, e.g., Castile v. Astrue, 617 F.3d 923, 927 (7th Cir. 2010) (noting that step two determination
was “of no consequence with respect to the outcome of the case” because the ALJ “recognized

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numerous other severe impairments” and proceeded to later steps). Thus, as long as the ALJ
finds at least one severe impairment, continues his analysis, and considers a Plaintiff’s nonsevere impairments at the later steps of his determination, a court need not remand a case to
correct a step two error. See id.; see also Curvin v. Colvin, No. 13-3622, 2015 WL 542847, at *3
(7th Cir. Feb. 11, 2015) (“What is more, even if there were such an error at step 2, it would have
been harmless because the ALJ properly considered all of [plaintiff’s] severe and non-severe
impairments, the objective medical evidence, her symptoms, and her credibility when
determining her RFC immediately after step 3.”).
The ALJ in this case complied with these requirements. Although she determined that
Plaintiff’s back pain was not severe, she found that other impairments—namely, his eye
enucleation and his obesity—were severe. [R. at 19.] She thus continued with her analysis, and,
in constructing Plaintiff’s RFC, she extensively considered the effects of Plaintiff’s back pain.
[See, e.g., R. at 22 (noting complaints of “‘severe’ pain in spine”); R. at 23 (noting Dr.
Whitesell’s findings of limited range of motion); R. at 24 (noting complaints that “sitting or
standing hurt [Plaintiff’s] back”).] She also considered the objective medical evidence related to
Plaintiff’s spinal impairment, [see, e.g., R. at 23 (noting “mild degenerative disc disease” in
imaging results)], and she specifically commented on Plaintiff’s credibility. [See, e.g., R. at 21
(describing factors that influenced her credibility finding).] The ALJ’s step-two finding thus did
not impact her later consideration of Plaintiff’s back pain, and so “even if there were a mistake at
Step 2, it does not matter.” Curvin, No. 13-3622, 2015 WL 542847, at *3 (quoting Arnett v.
Astrue, 676 F.3d 586, 591 (7th Cir. 2012)). Any error, in short, was harmless, and Plaintiff’s
argument on this point does not require remand.

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B. Credibility Determination
Plaintiff contends that the ALJ erred in determining that Plaintiff’s complaints about the
severity of his impairments and any resulting limitations were not credible. [Dkt. 17 at 15.] A
court will overturn the ALJ’s credibility determination only if that determination was “patently
wrong.” Terry v. Astrue, 580 F.3d 471, 477 (7th Cir. 2009) (quoting Prochaska v. Barnhart, 454
F.3d 731, 738 (7th Cir.2006)). Nonetheless, the ALJ’s credibility determination must still
comply with applicable SSA rules and regulations. See id. As the ALJ in this case noted, [R. at
21], Social Security Ruling 96-7p sets out a specific framework for credibility determinations.
Under this Ruling, the ALJ must “carefully consider” the claimant’s own statements about
symptoms such as pain. SSR 96-7p. The ALJ may not disregard the claimant’s statements
“solely because they are not substantiated by objective medical evidence;” rather, the ALJ “must
consider the entire case record,” including the objective evidence; the individual’s subjective
complaints; statements and observations from third parties; and “any other relevant evidence.”
Id. The Ruling then instructs ALJs to consider the following factors:
1. The individual’s daily activities;
2. The location, duration, frequency, and intensity of the individual’s pain or other
symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any medication the
individual takes or has taken to alleviate pain or other symptoms;
5. Treatment, other than medication, the individual receives or has received for
relief of pain or other symptoms;
6. Any measures other than treatment the individual uses or has used to relieve
pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20
minutes every hour, or sleeping on a board); and
7. Any other factors concerning the individual’s functional limitations and
restrictions due to pain or other symptoms.
Id. The ALJ in this case specifically discussed each of these factors, [R. at 22-25], but Plaintiff
contends that the ALJ erred in her consideration of factors four and five. [Dkt. 17 at 15-16.]

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Factor four concerns the “type, dosage, effectiveness, and side effects of any medication
the individual takes or has taken to alleviate pain or other symptoms.” SSR 96-7p. The ALJ
observed that Plaintiff “does not take any narcotic based pain relieving medication,” thereby
undercutting Plaintiff’s claim of “allegedly disabling symptoms and limiting pain.” [R. at 24.]
Plaintiff contends this statement was erroneous because Plaintiff was actually “prescribed
Vicodin,[ 5] Norco, and Prednisone for back pain.” [Dkt. 17 at 15 (citing R. at 197, 202).]
The portion of the record Plaintiff cites describes an August 21, 2011 doctor’s
appointment. At that time, Plaintiff presented with active back pain and received a prescription
for Norco and Prednisone. [R. at 197; see also R. at 202.] The Norco prescription lasted five
days, [see id. (dispensing 15 pills to be taken three times per day)], and the Prednisone
prescription lasted twelve days. [See id. (directing Plaintiff to reduce dosage over 12-day
period).] Neither prescription included refills, [see id.], and the record contains no evidence of
later prescriptions for narcotics. [See, e.g., Dkt. 20 at 2 (noting that the “only treatment Plaintiff
sought during the relevant period occurred on August 21, 2011”).] At the hearing, Plaintiff also
testified that he did not have any prescription for medication for his back pain; instead, he would
take only ibuprofen or, on “really bad day[s],” one of the “pain pills” he had saved from when he
had his teeth pulled. [R. at 48-49.]
Based on this evidence, the ALJ was justified in finding that Plaintiff’s complaints of
“disabling symptoms and pain” were inconsistent with his medication. The record contained a
single incident indicating that Plaintiff’s pain was severe enough for a few days in August 2011

5

The records that Plaintiff cites do not mention “Vicodin.” [See R. at 197, 202.] The confusion appears to stem from
the fact that Norco and Vicodin are both combinations of hydrocodone and acetaminophen. See Bayer v. Astrue, No.
CIV. 12-743-CJP, 2012 WL 6553981, at *4 & n.2 (S.D. Ill. Dec. 14, 2012). The record in this case indicates that
Plaintiff was prescribed “hydrocodone 5/Acetaminophen 325,” [R. at 197], and Plaintiff apparently concludes that
this prescription was for Vicodin. This particular combination, however, refers to Norco. [See R. at 202 (prescribing
“Norco” rather than Vicodin).]

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that he sought prescription medication. That Plaintiff sought no further medication during the
eighteen months between the August 2011 appointment and the February 2013 hearing before
the ALJ is a telling indication that his complaints were exaggerated. See, e.g., Powers v. Apfel,
207 F.3d 431, 435-36 (7th Cir. 2000) (“The ALJ found [plaintiff’s] complaints of severe pain to
be inconsistent with . . . the absence of drugs prescribed for severe pain. . . . The discrepancy
between the degree of pain attested to by the witness and that suggested by the medical evidence
is probative that the witness may be exaggerating [his] condition.”).
Similar reasoning applies to SSR 96-7p factor five. This factor involves “[t]reatment,
other than medication, the individual receives or has received for relief of pain or other
symptoms.” SSR 96-7p. The ALJ in this case noted that the record included only “infrequent
trips to the doctor or hospital for treatment of [Plaintiff’s] symptoms.” [R. at 24.] In particular,
the doctor at the August 2011 appointment instructed Plaintiff to “schedule an appointment to
see any provider within 3 months for [pain] management suggestions” and recommended a
“physical therapy consult [to] evaluate and treat” Plaintiff’s pain. [R. at 197.] The record,
however, contains no evidence that Plaintiff followed this advice, and, when asked at the
hearing, Plaintiff’s counsel indicated that Plaintiff had no additional medical records to submit.
[R. at 68.] Again, then, the ALJ was justified in concluding that Plaintiff’s symptoms were not as
severe as Plaintiff alleged. See, e.g., Cain-Wesa v. Astrue, No. 11-C-1063, 2012 WL 2160443, at
*11 (E.D. Wis. June 13, 2012) (citing Simila v. Astrue, 573 F.3d 503, 519 (7th Cir.2009))
(“[T]he ALJ may reasonably consider such limited treatment . . . in finding claimed symptoms
and limitations exaggerated.”).
In his reply brief, Plaintiff nonetheless contends that the ALJ erred because he did not
adequately consider why Plaintiff may have failed to seek prescription medications or more

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extensive treatment. [Dkt. 21 at 3-4.] He notes that before discrediting a claimant’s testimony on
the basis of lack of treatment, the ALJ “must . . . consider[] any explanations that the individual
may provide, or other information in the case record, that may explain infrequent or irregular
medical visits or failure to seek medical treatment.” [Id. at 4 (quoting SSR 96-7p).] Such
explanations may include intolerable side effects; inability to afford treatment; or structuring of
daily activities to avoid symptoms. SSR 96-7p. In such cases, lack of treatment is not a
permissible basis for discounting the claimant’s credibility. See id.; see also SSR 82-59 (noting
that “[inability] to afford prescribed treatment” is a “justifiable” reason for not complying with
treatment recommendations).
In this case, Plaintiff argues that he did not obtain additional prescription pain
medications not because he was exaggerating his symptoms, but because “he could not continue
to take them after losing his insurance.” [Dkt. 21 at 3.] He thus contends that it would violate
SSR 96-7p and SSR 82-59 to draw a negative credibility determination on the basis of lack of
medication. [See id. at 3-4.]
This argument is unpersuasive. First, the ALJ noted that the record of Plaintiff’s August
2011 appointment contains a note indicating that Plaintiff “was just accepted” for an insurance
plan. [R. at 24 (citing R at 201).] Having “just” obtained such coverage, it seems unlikely that
the insurance would have expired so quickly that he could not have sought or obtained another
prescription at any time within the eighteen months before the hearing with the ALJ. In addition,
Plaintiff testified at the hearing that he had insurance coverage through his wife’s plan, which
she had obtained “a few months ago.” [R. at 47.] Hence, even if Plaintiff’s own insurance had
expired shortly after the August 2011 appointment, he still had coverage through his wife’s plan

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for “months” before the hearing. That he nonetheless did not seek or obtain a prescription to treat
his back pain is thus evidence that his pain was in fact exaggerated.
As support for his argument, Plaintiff also cites Dr. Whitesell’s December 2011
consultative exam. [Dkt. 17 at 15.] Plaintiff contends that he told Dr. Whitesell at that
appointment that “he did not use his prescribed medications because his insurance ran out and he
cannot afford them.” [Id.] This assertion, however, suffers from two flaws: First, as described
above, Plaintiff did have insurance for much of the time period at issue, such that even if his
insurance had lapsed at the time of Dr. Whitesell’s examination, the lack of insurance cannot
justify failure to seek treatment or medication at other times. Second, Plaintiff’s comment at Dr.
Whitesell’s appointment referred only to the albuterol inhalers that Plaintiff had received for his
alleged COPD. [R. at 207 (“He was prescribed what sounds like albuterol inhalers which he tells
me he does not use because his insurance ran out and he can’t afford them.”).] The statement
included nothing about Plaintiff’s pain medication, [see id.], and hence does little to justify
Plaintiff’s lack of treatment for his back pain. As a result, the Whitesell appointment does not
establish that Plaintiff’s sparse treatment for his back pain was the result of inadequate insurance,
and Plaintiff’s reliance on the appointment to support this argument is misplaced. 6

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Plaintiff also briefly argues that the ALJ erred by failing to specifically mention the comment to Dr. Whitesell or
the prescriptions for Norco and Prednisone. [See Dkt. 17 at 15 (arguing that ALJ “select[ed] certain pieces of
evidence to support his findings, while ignoring others that contradict”).] An ALJ, however, “is not required to
provide a ‘complete written evaluation of every piece of testimony and evidence.’” Rice v. Barnhart, 384 F.3d 363,
370 (7th Cir. 2004) (quoting Diaz v. Chater, 55 F.3d 300, 308 (7th Cir.1995)). Here, the ALJ specifically addressed
Plaintiff’s allegation that he lacked insurance. [R. at 24 (“[The claimant testified that he had not sought medical
treatment due to a lack of insurance . . . . [T]he record directly contradicted this statement[.]”] She also extensively
considered the August 2011 appointment at which Plaintiff received the Norco and Prednisone prescriptions, [R. at
23-25], and noted that although “[Plaintiff’s] medications . . . may confirm the existence of impairments,” they do
“not establish an inability to work at the level assessed.” [R. at 24.] Thus, even if the ALJ did not specifically
emphasize the prescriptions or the comment to Dr. Whitesell, she still considered these pieces of evidence and
therefore did not err by “ignoring” them.

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In addition, the ALJ provided numerous other reasons for discounting Plaintiff’s
credibility. The first factor in SSR 96-7p, for instance, concerns the “individual’s daily
activities.” SSR 96-7p. Here, the ALJ noted that Plaintiff complained “that he had difficulty
donning his socks.” [R. at 24; R. at 50 (“My wife will help me get a shower and get my shoes
and socks on because I can’t get them on in the morning myself.”).] As the ALJ noted, however,
Dr. Whitesell specifically wrote that Plaintiff could “bend over and attend to footwear without
difficulty.” [R. at 208.] The ALJ thus properly observed that the examining doctor’s observations
did not comport with Plaintiff’s claimed limitations, such that Plaintiff’s complaints were less
credible. See SSR 96-7p (“In determining the credibility of the individual’s statements, the
adjudicator must consider . . . statements and other information provided by treating or
examining physicians[.]”).
Next, the ALJ noted that Plaintiff’s work history was inconsistent with his claimed
limitations. [See R. at 25.] In particular, the August 21, 2011 appointment indicated that
Plaintiff’s back pain was a chronic condition that had waxed and waned over the previous nine
years. [R. at 201.] During much of this time, however, Plaintiff was working as a heavy
equipment operator or a forklift operator. [See R. at 37-38 (describing work history).] The ALJ
thus concluded that Plaintiff’s impairments had not prevented him from working in the past, such
that his claims that those same impairments were now totally disabling were not credible. [See R.
at 25.] Moreover, the ALJ specifically considered whether Plaintiff’s impairments had worsened
over the years. He noted, however, that the record contained little medical evidence of such
worsening, [see id. (noting that “the objective evidence regarding [Plaintiff’s] shoulder and back
reveal[ed] only mild findings”)], and that Plaintiff’s employment ended not because of any
worsening in his condition, but because his employer downsized its operations. [R. at 25, 39, 44.]

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The ALJ thus properly determined that Plaintiff’s past ability to work harmed his credibility. See
SSR 96-7p (noting that claimant’s “prior work record” can affect “[a]ssessment of the credibility
of an individual’s statements about pain”).
The ALJ then considered Plaintiff’s receipt of unemployment benefits. [R. at 25.] From
the second quarter of 2011 through the fourth quarter of 2012 (well after Plaintiff’s alleged onset
of disability), Plaintiff received unemployment benefits from the state of Indiana. [R. at 144-46.]
As a condition of receiving these benefits, he had to “certify to the state unemployment agency
that he was physically able to look for and accept employment[.]” [R. at 25.] The record also
indicated that Plaintiff was in fact looking for work, as he reported during his August 21, 2011
appointment that he had a job interview later that week. [R. at 201.] Thus, despite Plaintiff’s
complaints of allegedly disabling pain, he was actively seeking work and was presenting himself
as able to work. The ALJ was therefore warranted in concluding that Plaintiff’s complaints were
not as credible as they might have been. See, e.g., Johll v. Colvin, No. 13-CV-630-JDP, 2014
WL 4678266, at *7 (W.D. Wis. Sept. 18, 2014) (quoting Schmidt v. Barnhart, 395 F.3d 737, 746
(7th Cir.2005)) (“[T]he ALJ correctly considered plaintiff's receipt of unemployment benefits as
‘one of many factors adversely impacting his credibility.’”). 7
Based on this analysis, the ALJ had ample reason to discredit Plaintiff’s complaints:
Plaintiff sought and received little treatment; rarely took any prescription medication; was able to
work in the past despite his impairments; and held himself out as able to work even after the
alleged onset of disability. The Court therefore cannot say that the ALJ’s credibility

7

In his reply, Plaintiff contends that “he should not be condemned for trying to find employment” in August 2011
because “he did not even apply for disability benefits until November 2011.” [Dkt. 21 at 5.] This point is irrelevant:
Plaintiff alleged that he became disabled in May of 2011. [R. at 17.] The fact that he was seeking employment after
this date thus indicates that his impairments were not as disabling as he alleged, regardless of when he ultimately
decided to apply for disability insurance benefits. Moreover, even if Plaintiff’s argument did have merit, it would be
undercut by the fact that Plaintiff continued to collect unemployment even after he applied for disability insurance
benefits. [See R. at 25 (noting Plaintiff collected unemployment throughout 2012).]

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determination was “patently wrong,” and the Court accordingly cannot overrule that
determination. See Terry, 580 F.3d at 477.
C. Weight Given to Medical Opinions
Plaintiff next argues that the ALJ erred by giving too little weight to the opinions of the
state agency consultative examiner, Dr. Whitesell, and the state agency reviewing physician, Dr.
J. Sands. [Dkt. 17 at 15; see also Dkt. 21 at 5.] As noted above, Dr. Whitesell examined Plaintiff
and provided a medical source statement. [R. at 209-210.] Among other findings, Dr. Whitesell
noted that Plaintiff complained of “severe neck and back pain” and had a limited range of motion
at both sites. [Id.] He suggested that physical therapy or referral to a pain management specialist
could be helpful, but he did not comment on Plaintiff’s ability to perform specific job-related
tasks. [See id.] Dr. J. Sands then reviewed Plaintiff’s records and completed a physical residual
functional capacity assessment. [R. at 212.] He specifically cited Dr. Whitesell’s findings, [R. at
213-214], and he concluded that Plaintiff could work at a “light” exertional level. [See id.; see
also R. at 25.]
The ALJ gave Dr. Whitesell’s opinion “little probative weight.” [R. at 25.] She then
stated that she gave Dr. Sands’ report “significant weight,” but she ultimately determined that
Plaintiff was “capable of performing work at the [medium] level assessed herein, rather than the
light exertional level determined by [Dr. Sands.]” [R. at 25.] Plaintiff now contends that the
ALJ’s evaluations of these opinions were erroneous because the ALJ “play[ed] doctor” by
“rejecting all medical opinion of record and drawing her own lay conclusions of the evidence.”
[Dkt. 17 at 16.]
20 C.F.R. § 404.1527 governs the evaluation of medical opinions. This section provides
that an ALJ must evaluate every medical opinion in the record and, in determining the value of

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the opinion, must consider factors such as whether the medical source has examined the
claimant; whether the medical source has adequately supported his or her opinion; whether the
opinion is consistent with the record as a whole; and whether the source has a particular
specialization in a given area. Id. § 404.1527(c). The section also provides that the final
conclusions on certain issues, such as analysis of a claimant’s functional capacity, are reserved to
the Commissioner. Id. § 404.1527(d).
In this case, the ALJ explained that she gave Dr. Whitesell’s opinion “little probative
weight” because the statement was “vague and nonspecific regarding what, if any, physical
capabilities, limitations, or restrictions the claimant would endure because of his impairments or
related symptoms.” [R. at 25.] This assessment properly addresses the “supportability” factor
described in the regulations above. See 20 C.F.R. § 404.1527(c)(3) (“Supportability. . . . The
better an explanation a source provides for an opinion, the more weight we will give that
opinion.”). In addition, the opinion’s lack of any specific job-related limitations made it
especially appropriate for the ALJ to give the opinion little weight in constructing Plaintiff’s
RFC. See, e.g., Luna v. Shalala, 22 F.3d 687, 690 (7th Cir. 1994) (approving ALJ’s decision to
reject “cursory” report that did not “describe [plaintiff’s] ability to do work-related activities”);
Liggins v. Colvin, No. 12 C 4010, 2013 WL 6645440, at *6 (N.D. Ill. Dec. 17, 2013) (upholding
ALJ who gave little weight to “physician’s opinion [that] was vague and lacked a function by
function analysis”).
Next, the ALJ explained that although she accorded “significant weight” to Dr. Sands’
opinion, she nonetheless found that “the totality of the evidence” supported a finding that
Plaintiff could work at a “medium” exertional level. [R. at 25.] She specifically noted that a
medium exertional level was consistent with the “objective medical evidence;” the “lack of

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medical treatment” for Plaintiff’s alleged impairments; and Plaintiff’s “continued engagement in
work activity at the medium exertional level with the impairment.” [R. at 26.] The ALJ thus
complied with 20 C.F.R. § 404.1527(c) by explaining that Dr. Sands’ opinion was not supported
by or consistent with the record as a whole. Moreover, because the ultimate analysis of a
claimant’s RFC is reserved to the Commissioner, see 20 C.F.R. § 404.1527(d), the ALJ did not
err by departing from Dr. Sands’ opinion to conclude that Plaintiff could perform “medium”
rather than “light” work.
In addition, any error in the ALJ’s evaluation of the medical opinions was harmless. At
step four of the sequential evaluation process, the ALJ determined that Plaintiff could perform
his past relevant work at a “medium” exertional level. [R. at 26.] The ALJ thus ended her
decision at that step. [Id.] At the hearing, however, the ALJ proceed to step five of the analysis.
At this step, an ALJ considers whether a claimant’s RFC allows him to perform any work that
exists “in significant numbers in the national economy.” 20 C.F.R. § 404.1560(c). If so, the
claimant is not disabled. See id.
The ALJ in this case addressed step five by asking a series of hypothetical questions: in
particular, she asked the vocational expert to consider a “hypothetical individual of the
claimant’s past work experience and education” who could perform work “at the light level.” [R.
at 62.] She also imposed a series of additional restrictions to limit the person’s sitting, walking
and standing; reaching and handling; climbing and balancing; and kneeling, crouching, and
crawling. [Id.] The vocational expert then testified that such a person would be able to perform
work as an usher. [R. at 63.] He added that there were 1,230 such jobs in Indiana and 78,200
such jobs in the nation, [id.], such that the work did in fact exist in significant numbers in the
national economy. See, e.g., Liskowitz v. Astrue, 559 F.3d 736, 743 (7th Cir. 2009) (citation

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omitted) (“As few as 174 jobs has been held to be significant and it appears to be wellestablished that 1,000 jobs is a significant number.”).
This questioning indicates that, even if the ALJ had accepted the limitations described by
the medical sources, the ALJ’s ultimate decision would have been the same. If, that is, the ALJ
had determined—as did Dr. Sands 8—that Plaintiff was capable of performing only “light” work,
the ALJ would have concluded that Plaintiff could not have performed his past relevant work at a
“medium” level. She thus would have continued to step five, see 20 C.F.R. § 404.1560(c), and
would have then considered the vocational expert’s testimony that a hypothetical Plaintiff who
could perform only “light” work could nonetheless hold a job as an usher. Because this job exists
in significant numbers in the national economy, [see R. at 63], the ALJ would have concluded
that Plaintiff was not disabled, see 20 C.F.R. § 404.1560(c), and the ultimate outcome of
Plaintiff’s claim would have been the same.
In short, the ALJ’s decision to discount the doctors’ opinions in this case was
meaningless: she could have granted the doctors’ opinions more weight, in which case the
analysis would have ended at step five with a finding that Plaintiff was not disabled; instead, she
granted the doctors’ opinions less weight, and the analysis ended at step four with the same
finding that Plaintiff was not disabled. Any error in the ALJ’s evaluation of the opinions was
therefore harmless, and the Court need not remand this case for further proceedings. See, e.g.,
McKinzey v. Astrue, 641 F.3d 884, 892 (7th Cir. 2011) (citing Spiva v. Astrue, 628 F.3d 346, 353
(7th Cir.2010)) (“[W]e will not remand a case to the ALJ for further specification where we are
convinced that the ALJ will reach the same result.”).

8

Because Dr. Sands relied on Dr. Whitesell’s findings to determine Plaintiff’s RFC, [see R. at 213-14], any
incorporation of Dr. Sands’ opinion necessarily incorporates any limitations that Dr. Whitesell may have suggested.

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Conclusion
For the foregoing reasons, the Court finds that substantial evidence supports the ALJ’s
decision that Robert Beatty is not entitled to Disability Insurance Benefits. The Magistrate Judge
therefore recommends that the Commissioner’s decision be AFFIRMED. Any objections to the
Magistrate Judge’s Report and Recommendation shall be filed with the Clerk in accordance with
28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), and failure to timely file objections within
fourteen days after service shall constitute a waiver of subsequent review absent a showing of
good cause for such failure.

Dated: 03/12/2015

Distribution:
Charles D. Hankey
[e-mail]
Thomas E. Kieper
UNITED STATES ATTORNEY'S OFFICE
[e-mail]

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