Winters v. Saul
Filing
38
ORDER DISMISSING CASE signed by Chief Judge Pamela Pepper on 10/24/2024. Commissioner's decision to deny benefits AFFIRMED. (cc: all counsel)(cb)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TABITHA D. WINTERS,
Plaintiff,
Case No. 20-cv-71-pp
v.
MARTIN J. O’MALLEY,
Defendant.
ORDER AFFIRMING FINAL ADMINISTRATIVE DECISION OF THE
COMMISSIONER
On January 15, 2020, the plaintiff appealed an administrative law
judge’s final administrative decision finding her not “disabled” within the
meaning of the Social Security Act. Dkt. No. 1. The Social Security
Administration’s Appeals Council denied review, rendering the administrative
law judge’s decision the final decision of the Commissioner. The court will
affirm the Commissioner’s decision.
I.
Procedural History and the ALJ’s Decision
On November 7, 2016, the plaintiff filed a Title II application for disability
insurance benefits with an alleged disability onset date of May 20, 2015. Dkt.
No. 12-1 at 23. The Social Security Administration (SSA) denied the plaintiff’s
claims on May 30, 2017 and again on reconsideration on July 12, 2017. Id.
On August 10, 2017, the plaintiff filed a request for a hearing before an
administrative law judge (ALJ). Id. On September 13, 2018, she appeared at a
telephone hearing, represented by a “non-attorney representative,” Jeffrey
Scotese. Id. Vocational expert (VE) William S. Dingess also was present. Id. On
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February 4, 2019, ALJ Margaret J. O’Grady issued a decision, finding that the
plaintiff was not “disabled” as defined by the Social Security Act. Id. at 20–37.
The ALJ found that the plaintiff, born October 5, 1975, was thirty-nine years
old on the alleged disability onset date and “ha[d] at least a high school
education.” Id. at 32–33. She found that the plaintiff “ha[d] not engaged in
substantial gainful activity since May 20, 2015, the alleged onset date.” Id. at
25 (citing 20 CFR §§404.1571 et seq.). The ALJ also found, based on the VE’s
testimony, that the plaintiff had past relevant work as a collection clerk and
mortgage clerk and that the plaintiff was unable to perform any past relevant
work. Id. at 32 (citing 20 CFR §§ 404.1565).
To be entitled to benefits under the Social Security Act, a claimant must
be “aged, blind, or disabled.” 42 U.S.C. §1382(a)(1). The 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 twelve months.” Id. at §1382c(a)(3)(A). The
impairment must be of “such severity that [the plaintiff] is not only unable to
do [her] previous work but cannot, considering [her] age, education, and work
experience, engage in any other kind of substantial gainful work which exists
in the national economy.” Id. at § 1382c(a)(3)(B). In evaluating a claim for
disability benefits, administrative law judges (ALJs) follow a five-step,
sequential process. Apke v. Saul, 817 F. App’x 252, 255 (7th Cir. 2020); Fetting
v. Kijakazi, 62 F.4th 332, 336 (7th Cir. 2023).
At step one, the ALJ determined that the plaintiff had worked after the
alleged onset date, but that the work activity did not rise to the level of
substantial gainful activity. Dkt. No. 12-1 at 25. At step two, the ALJ
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determined that the plaintiff had severe impairments, including depressive
disorder, bipolar disorder, generalized anxiety disorder, panic disorder and
attention deficit disorder. Id. The ALJ found that the plaintiff’s migraine
headaches and irritable bowel syndrome were non-severe. Id. at 26. At step
three, considering the plaintiff’s impairments individually and in combination,
the ALJ saw “no evidence that the combined clinical findings from such
impairments reach the level of severity contemplated in the Listings 12.00 and
5.00.” Id. The ALJ determined that the medical evidence failed to establish the
requirements of listing 5.06 regarding the plaintiff’s inflammatory bowel
disease. Id. The severity of the plaintiff’s mental impairments considered alone
and in combination did not meet or medically equal the criteria of listings
12.04 and 12.06. Id. at 27. The plaintiff had moderate limitations in (1)
understanding, remembering or applying information; (2) interacting with
others; (3) concentrating, persisting or maintaining pace; and (4) adapting or
managing oneself. Id.
At step four, in determining the plaintiff’s residual functional capacity
(RFC), the ALJ cited disability reports, function reports, office treatment
records, a consultative exam report and disability determination explanations.
Id. at 28–32. She “considered all symptoms and the extent to which these
symptoms [could] reasonably be accepted as consistent with the objective
medical evidence and other evidence.” Id. at 28. The ALJ noted the plaintiff’s
alleged disability due to her bipolar disorder, chronic depression and extreme
anxiety. Id. (citing Dkt. No. 12-1 at 189). She observed the plaintiff’s reports
that the plaintiff “does not like getting along with people,” has issues with focus
and comprehension, has negative thoughts and crying spells and has difficulty
finishing what she starts. Id. at 28–29. The ALJ recounted the plaintiff’s
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hearing testimony, including her statements that she has memory problems,
treats her mental health with medications that cause fatigue and difficulty with
comprehension, lays in bed on a typical day, has irritable bowel syndrome that
requires her to use the restroom up to ten times a day and stopped working
because she had difficulty understanding the job and was constantly using the
restroom. Id. at 29.
But the ALJ concluded that “the objective findings in this case fail[ed] to
provide strong support for [the plaintiff’s] allegations of disabling symptoms
and limitations,” and did not support her allegation that she was unable to
work. Id. The ALJ cited the neuropsychiatric evaluation records from
psychiatrist Dr. Joseph Burgarino. Id. at 29–30 (citing Dkt. No. 12-1 at 245–46,
252, 255, 257–58). The ALJ further referenced the plaintiff’s “largely normal”
and “stable” mental status examinations, citing both family nurse practitioner
Barbara Szopinski’s and Dr. Burgarino’s treatment records. Id. at 30 (citing
Dkt. No. 12-1 at 285–86). She considered Dr. Burgarino’s observations that the
plaintiff “reported short-term memory difficulties, which appeared anxiety
related,” “continued on her neuropsychiatric medication regimen as prescribed”
and “continued to receive treatment for ADD, generalized anxiety, panic
disorder and bipolar depression, which has been managed on a medication
regimen.” Id. (citing Dkt. No. 12-1 at 299, 331). The ALJ recalled that Dr.
Burgarino found the plaintiff to “respond[] well to supportive techniques
focused on consolidating her gains and coping with chronic illness.” Id. (citing
Dkt. No. 12-1 at 336). The ALJ cited treatment notes of licensed social worker
Trevor Huskey. Id. (citing Dkt. No. 12-1 at 359).
Rejecting the conclusions of consultative examiner Dr. Jeffrey Polczinski,
the ALJ reasoned that his notes “differ[ed] significantly from the treating
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psychiatrist who note[d] the claimant’s mental status was well controlled with
medication management,” and that Dr. Polczinski himself “noted the claimant’s
presentation was suspect for this reason.” Id. at 31 (citing Dkt. No. 12-1 at
292–376). Turning to the opinion evidence, the ALJ gave partial weight to the
conclusions of Drs. Cindy Matyi and Kathleen O’Brien, both medical
consultants with Disability Determination Services. Id. at 31–32. Dr. Matyi
opined that the plaintiff could adapt to a setting with routine and predictable
duties, recommended that changes in work routine be “well explained and
introduced slowly” and found that the plaintiff “can interact appropriately in a
work setting with minimal interaction with the general public, co-workers, and
supervisors.” Id. at 31. She concluded that the plaintiff could “carry out simple
and occasional complex tasks, maintain attention, make simple decisions, and
adequately adhere to a schedule.” Id. In Dr. Matyi’s opinion, the plaintiff could
not have strict time limits or production standards. Id. Citing “difficulty with
concentration and attention,” Dr. Matyi stated that the plaintiff “would do best
in a work setting with the ability to be off task 10 percent of the workday.” Id.
As to the plaintiff’s limitations, Dr. Matyi determined that she “has mild
restrictions in understanding, remembering or applying information, moderate
difficulties interacting with others, moderate difficulties in concentration,
persistence or pace and moderate difficulties in adapting or managing oneself.”
Id. (citing Dkt. No. 12-1 at 67–78).
Dr. O’Brien “opined [the plaintiff] retains the ability to understand, learn,
remember, perform and sustain simple tasks in an environment with limited
contact with the public, co-workers and supervisors.” Id. at 31–32 (citing Dkt.
No. 12-1 at 79–92). In giving the opinions of the state agency consultants
partial weight, the ALJ explained that “they are generally consistent with the
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overall medical evidence of record that shows [the plaintiff] has a history of
mental health symptoms, which have largely been controlled with conservative
management.” Id. at 32 (citing Dkt. No. 12-1 at 292–376). However, the ALJ
clarified that “[the plaintiff] would be limited to no more than simple, routine
work to prevent an exacerbation of her symptoms.” Id. Similarly, the ALJ gave
partial weight to findings of the plaintiff’s friend, Geneva Young, because “Ms.
Young is not an acceptable medical source.” Id. (citing Dkt. No. 12-1 at 212–
19).
“Based on the entire record,” the ALJ concluded that “the evidence fails
to support [the plaintiff’s] assertions of total disability.” Id. Conceding that the
plaintiff experiences some limitation, the ALJ found that the plaintiff “retains
the capacity to function adequately to perform many basic activities associated
with work.” Id. At step five, for purposes of determining whether jobs that the
plaintiff can perform exist in the national economy in significant numbers, the
ALJ considered that the plaintiff was thirty-nine years old on the alleged
disability onset date, that she had at least a high school education and that
she was able to communicate in English. Id. at 32–33. The VE testified that the
plaintiff would be able to perform work as a hand packager and assembler. Id.
at 33–34. The ALJ determined that the plaintiff “is capable of making a
successful adjustment to other work that exists in significant numbers in the
national economy.” Id. at 34. Accordingly, the ALJ reached a finding of “not
disabled.” Id.
II.
Standard of Review
When the Appeals Council denies a plaintiff’s request for review, the
ALJ’s decision constitutes the final decision of the Commissioner. Gedatus v.
Saul, 994 F.3d 893, 898 (7th Cir. 2021). Section 405(g) of Title 42 limits the
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court’s review; the district court must uphold the decision if the ALJ applied
the correct legal standards and supported the decision with substantial
evidence. 42 U.S.C. §405(g); Jelinek v. Astrue, 662 F.3d 805, 811 (7th Cir.
2011). “An ALJ’s findings are supported by substantial evidence if the ALJ
identifies supporting evidence in the record and builds a logical bridge from
that evidence to the conclusion.” Hopgood ex rel. L.G. v. Astrue, 578 F.3d 696,
698 (7th Cir. 2009) (citation omitted). Courts have defined substantial evidence
as “such relevant evidence as a reasonable mind could accept as adequate to
support a conclusion.” Schaaf v. Astrue, 602 F.3d 869, 874 (7th Cir. 2010). A
decision denying benefits need not discuss every piece of evidence; remand is
appropriate, however, when an ALJ fails to provide adequate support for the
conclusions drawn. Jelinek, 662 F.3d at 811. If conflicting evidence in the
record would allow reasonable minds to disagree about whether the plaintiff is
disabled, the ALJ’s decision to deny the application for benefits must be
affirmed if the decision is adequately supported. Elder v. Astrue, 529 F.3d 408,
413 (7th Cir. 2008).
The district court must review the entire record, including both evidence
that supports the ALJ’s conclusions and evidence that detracts from the ALJ’s
conclusions, but it may not “displace the ALJ’s judgment by reconsidering facts
or evidence, or by making independent credibility determinations.” Id. “Under
the substantial-evidence standard, a court looks to an existing administrative
record and asks whether it contains ‘sufficien[t] evidence’ to support the
agency’s factual determinations.” Biestek v. Berryhill, 589 U.S. 97, 102 (2019).
Judicial review is limited to the rationales offered by the ALJ. Shauger v.
Astrue, 675 F.3d 690, 697 (7th Cir. 2012) (citing SEC v. Chenery Corp., 318
U.S. 80, 93–95 (1943)). The ALJ must follow the Social Security
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Administration’s rulings and regulations in making a determination. Failure to
do so requires reversal unless the error is harmless. See Prochaska v.
Barnhart, 454 F.3d 731, 736–37 (7th Cir. 2006). A reviewing court does not
“reweigh evidence, resolve conflicts, decide questions of credibility, or
substitute [its] judgment for that of the Commissioner.” Burmester v. Berryhill,
920 F.3d 507, 510 (7th Cir. 2019) (quoting Lopez ex rel. Lopez v. Barnhart, 336
F.3d 535, 539 (7th Cir. 2003)). The district court will uphold a decision so long
as the record reasonably supports it and the ALJ explains her analysis of the
evidence with enough detail and clarity to permit meaningful review. Eichstadt
v. Astrue, 534 F.3d 663, 665–66 (7th Cir. 2008).
III.
Analysis
The plaintiff argues that the court should remand the decision for four
reasons: (1) the ALJ erred in determining the plaintiff’s RFC because “the
objective medical record shows [the plaintiff] has neither the mental nor
physical ability to perform full-time work at any level,” dkt. no. 17 at 11; (2) the
ALJ erred in evaluating the opinion evidence (the state agency consultants’
opinions), id. at 17; (3) the ALJ erred in finding only a moderate limitation in
the plaintiff’s ability to concentrate, persist or maintain pace and did not
include that limitation in the hypothetical question posed to the VE, id. at 19;
and (4) the ALJ erroneously construed the plaintiff’s symptoms, id. at 21.
A.
RFC Determination
1.
The Plaintiff’s Brief
The plaintiff argues that the ALJ’s step four RFC determination lacks
substantial evidence. Dkt. No. 17 at 11. She says that the ALJ incorrectly
found the plaintiff’s irritable bowel syndrome (IBS) non-severe and exhibited a
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misunderstanding of chronic mental health disorders in her analysis. Id. at 11–
12.
a.
Irritable Bowel Syndrome
The plaintiff disagrees with the ALJ’s conclusion that her IBS had not
lasted or was not expected to last more than a year and that it did not more
than minimally limit the plaintiff’s ability to perform basic work activities. Id. at
12. The plaintiff stresses that the ALJ failed to specify that Dr. Thomas Slota
was a treating physician and gastroenterologist. Id. She argues that the ALJ
failed to recount Dr. Slota’s specific statement that the plaintiff’ “should take
Imodium as needed as ‘other medications cannot be used here.’” Id. The
plaintiff faults the ALJ for failing to ask the plaintiff at the hearing about
subsequent treatment for IBS. Id.
The plaintiff says “ALJ O’Grady failed to adequately analyze the impact
[the plaintiff’s] IBS would have on her ability to work when formulating her
RFC.” Id. at 12-13. She stresses that she testified to her need to use the
restroom “once every half an hour” totaling “maybe nine or 10 times per day,”
that medication does not help and that she cannot otherwise afford medication.
Id. at 13. Stating that Dr. Slota’s notes and diagnosis support such testimony,
the plaintiff contends that the ALJ “ignore[d] that the jobs recommended for
[the plaintiff] allow an amount of time off task of no more than 10 percent of
the time.” Id. The plaintiff emphasizes that the VE recommended jobs that
“permit two 15 minute breaks and one 30-minute meal break separated by
about two hours each over the course of an eight-hour work shift.” Id.
According to the plaintiff, “[t]hese jobs would not accommodate the frequent
(about once every half hour), unscheduled bathroom breaks that [the plaintiff]
would require and allowing for her to use the bathroom as necessary would
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exceed the requisite amount of time off task for the jobs.” Id. Concluding that
the ALJ failed to build an accurate and logical bridge from the evidence to her
RFC determination, the plaintiff reasons that the ALJ did not “explain how [the
plaintiff] would be able to work full-time and stay on task with her IBS” or
“properly account for [the plaintiff’s] impairments.” Id. at 14.
b.
Mental Impairments
As for her mental impairments, the plaintiff stresses that bipolar disorder
is episodic and has symptoms that fluctuate even under proper treatment. Id.
at 15 (quoting Jelinek, 662 at 814). For that reason, she argues the ALJ
inappropriately cited normal mental status examinations as a basis for
concluding that the plaintiff is not disabled. Id. She asserts that while her
treating psychiatrist sometimes found her conditions “well controlled at
present,” the notes do not explain what that means. Id. The plaintiff argues
that the ALJ incorrectly concluded that the plaintiff had no recent history of
exacerbation in her symptoms, emphasizing that Dr. Burgarino documented
“increased difficulties with attention, concentration and focus” in November
2017, “residual mood lability with severe anxiety at times of psychotiform
proportions” in January 2018 and continued short-term memory difficulty in
June 2018. Id. at 16. Finally, the plaintiff contends that the ALJ improperly
substituted the ALJ’s judgment for that of a physician in characterizing the
plaintiff’s treatment history as “conservative” even though her treatment
requires long-term medication management under a psychiatrist’s supervision.
Id. at 16–17.
2.
The Commissioner’s Response
The Commissioner responds that the plaintiff’s arguments challenge the
ALJ’s weighing of the plaintiff’s subjective complaints against the medical
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experts’ opinions, not the ALJ’s RFC determination. Dkt. No. 29 at 9.
a.
Irritable Bowel Syndrome
According to the Commissioner, the plaintiff “produce[d] no evidence of
limitations related to irritable bowel syndrome besides her own testimony and
thus merely challenges the reasonableness of the ALJ’s finding that her
subjective complaints were not persuasive.” Id. The Commissioner argues that
nothing required the ALJ to specifically address Dr. Slota’s specialty or
indication “that other medications, aside from Immodium, could not be used.”
Id. The Commissioner opines that the ALJ adequately weighed the evidence
when she rejected the plaintiff’s allegation of a “nearly constant need to use the
bathroom,” reasoning that (1) Dr. Slota did not officially diagnose the plaintiff
with IBS, (2) aside from her own statements, the plaintiff provided no evidence
of any limitation related to IBS, (3) the plaintiff received minimal treatment for
IBS, (4) “Dr. Slota recommended no aggressive treatment” and (5) the plaintiff’s
allegations of symptoms “drastically changed.” Id. at 10. As to a lack of any
specific questions at the hearing about treatment for IBS, the Commissioner
states that “[n]o authority mandates that the ALJ ask a claimant any particular
questions, let alone ask questions of a counseled claimant who maintains the
burden to make her best case for benefits.” Id. The Commissioner says that
“[t]he minimal and conservative treatment, combined with Plaintiff’s changing
account of her symptoms, reasonably suggested that her account of symptoms
related to irritable bowel syndrome were not accurate.” Id. The Commissioner
argues the ALJ adequately articulated why she found the plaintiff’s allegations
of symptoms from IBS inaccurate. Id. at 11.
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b.
Mental Impairments
Disagreeing with the plaintiff’s arguments regarding her mental
limitations, the Commissioner contends that other than her testimony, the
plaintiff presented no evidence of significant fluctuation in her symptoms. Id.
The Commissioner stresses that treating psychiatrist “Dr. Burgarino observed
at the beginning and end of 2017 that medication well controlled Plaintiff’s
bipolar disorder,” id. (citing Dkt. No. 12-1 at 255, 336), and that no treatment
provider found extreme, fluctuating symptoms, id. The Commissioner argues
that “[a] psychological treatment provider’s repeated notation of ‘well controlled’
bipolar symptoms constitutes substantial evidence that Plaintiff did not
accurately describe disabling fluctuations in symptoms related to the
condition.” Id. at 11–12. The Commissioner says that the ALJ “reasonably
determined that Plaintiff’s overall treatment did not support her complaints,”
reasoning that the ALJ noted the plaintiff had no recent hospitalizations or
exacerbations of particular symptoms. Id. at 12 (citing Dkt. No. 12-1 at 31).
Stating that routine, conservative and effective treatment can constitute a basis
to reject allegations of disability, the Commissioner asserts that the ALJ noted
the plaintiff’s “treating psychiatrist repeatedly observed the effectiveness of
Plaintiff’s medicinal treatment for mental symptoms.” Id. (citing Sienkiewicz v.
Barnhart, 409 F.3d 798, 803–04 (7th Cir. 2005); Molnar v. Astrue, 395 Fed.
App’x 282, 288 (7th Cir. 2010)). The Commissioner says the ALJ reasonably
concluded that the plaintiff’s treatment history did not support her particular
allegations of extreme limitations. Id. at 12–13.
3.
The Plaintiff’s Reply
The plaintiff replies that she “requires long-term psychotropic medication
management for her severe mental health problems and presents to her
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treating psychiatrist every two to three months.” Dkt. No. 32 at 2. She
concludes the ALJ “failed to consider [the plaintiff’s] limited daily activities, the
aggregate effects of her irritable bowel syndrome and other health issues, and
the impact of many medicines she takes in an attempt to control her chronic
impairments.” Id. at 2–3. Noting the Commissioner’s statement that “the doctor
did not ‘officially diagnose Plaintiff with irritable bowel syndrome,’” the plaintiff
argues that “the ALJ clearly acknowledged the diagnosis.” Id. at 4. The plaintiff
suggests that the Commissioner “wrongly argues” that she received only
minimal treatment for her irritable bowel syndrome and that Dr. Slota
“recommended no aggressive treatment.’” Id.
4.
Analysis
Even if the ALJ erred in concluding that the plaintiff’s irritable bowel
syndrome was non-severe, that error would be harmless. A severe impairment
can influence a disability determination in two ways: (1) it can meet or
medically equal a listing at step three, resulting in per se disability or (2) it
factors into the analysis of the plaintiff’s RFC at step four. Whitehead v. Saul,
841 F. App’x 976, 980 (7th Cir. 2020). But at step four, the ALJ must consider
all impairments regardless of severity. Id. The plaintiff has not argued that her
irritable bowel syndrome matches a listing at step three. “So the only real
question is whether it was properly taken into account in determining the
residual functional capacity.” Id.
The ALJ’s opinion reflects that she considered the plaintiff’s allegations of
limitations from irritable bowel syndrome. She recounted that the plaintiff
“initially reported having one stool per day” and later “reported that she had
diarrhea, abdominal pain and a history of cholecystectomy.” Dkt. No. 12-1 at
26 (citing Dkt. No. 12-1 at 268–69). The ALJ recalled the plaintiff’s hearing
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testimony “that she has irritable bowel syndrome and must use the restroom
up to 10 times a day.” Id. at 28. She recounted how Dr. Slota’s physical
examination of the plaintiff revealed a slightly tender abdomen and normal TSH
and transglutaminase levels. Id. at 26 (citing Dkt. No. 12-1 at 267). She noted
Dr. Slota’s finding that the plaintiff “fit the description of irritable bowel
syndrome from diarrhea” and his recommendation that the plaintiff “follow a
special diet and avoid stress as well as treat her condition with medication.” Id.
(citing Dkt. No. 12-1 at 267).
Substantial evidence supports the ALJ’s determination that the medical
evidence did not support the plaintiff’s allegations of disabling symptoms. The
ALJ considered the objective medical evidence in the record regarding the
plaintiff’s irritable bowel syndrome. She found that the record reflected that the
plaintiff “was only recently diagnosed with irritable bowel syndrome” in July
2018 (two months prior to the hearing), received no follow-up treatment for IBS
and received “only sparse conservative management for treatment of migraine
headaches.” Id. at 26, 31. She concluded that the plaintiff’s IBS did “not cause
more than minimal limitations” and therefore was non-severe. Id. at 31. The
ALJ did not fail to analyze the impact of the plaintiff’s IBS; rather, the ALJ did
not give great weight to the plaintiff’s allegations of disabling symptoms. This
court cannot reweigh the evidence.
The plaintiff’s other arguments do not provide a basis for remand. The
ALJ did not dispute Dr. Slota’s findings; the fact that the ALJ did not explicitly
state in her decision that Dr. Slota is a gastroenterologist or that Dr. Slota
prescribed Imodium does not demonstrate that the ALJ’s decision was not
supported by substantial evidence. The plaintiff bears the burden of proof at
steps one through four. Mandrell v. Kijakazi, 25 F.4th 514, 516 (7th Cir. 2022)
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(citing Butler v. Kijakazi, 4 F.4th 498, 501 (7th Cir. 2021)). That means that
the plaintiff had the burden to present evidence about the extent of her followup treatment. The fact that the ALJ did not inquire at the hearing about the
extent of the plaintiff’s follow-up treatment for IBS is not reversible error.
The ALJ also reasonably disagreed with the plaintiff’s allegations of
disabling symptoms related to her mental impairments. The ALJ tied her
conclusions to the objective medical evidence in the record. She concluded that
“[t]he objective medical findings reveal some limitations, but not to the extent
alleged by [the plaintiff].” Dkt. No. 12-1 at 31. Specifically, the ALJ found that
“the objective findings in this case fail[ed] to provide strong support for [the
plaintiff’s] allegations of disabling symptoms and limitations” and did not
support her allegation that she was unable to work. Id. at 29. Citing
neuropsychiatric evaluation records from treating psychiatrist Dr. Burgarino,
the ALJ noted (1) the plaintiff’s history of treatment for bipolar depression, (2)
the plaintiff’s statement that she was “feeling good with treatment,” (3) that the
plaintiff presented as casually dressed, well-groomed, pleasant and interactive,
(4) the plaintiff’s acknowledgement that “her agitation, confusion, dysphoria,
anhedonia, melancholia, mood lability and anxiety were all under good
control,” (5) the fact that examination revealed “no signs of a thought disorder,
psychosis or of organic mental disease,” (6) the fact that the plaintiff’s mood
“was euthymic and well-modulated,” (7) the fact that the plaintiff’s “affect was
appropriate to content,” (8) the fact that the plaintiff “denied suicidal, homicidal
and all other violent ideation on exam,” (9) the fact that the plaintiff “had no
abnormal involuntary movements,” (10) the fact that the plaintiff denied
abusing alcohol and drugs, (11) the fact that the plaintiff “was continued on
medication,” (12) the fact that Dr. Burgarino recommended that the plaintiff
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receive psychotropic medication for symptom management, (13) the fact that
the plaintiff “continued to deny any suicidal, homicidal and all other violent
ideation on examination,” (14) the fact that the plaintiff had no focal
abnormality on examination, (15) the fact that the plaintiff “was stable, coping
and doing well on her neuropsychiatric medications,” (16) the fact that the
plaintiff’s anxiety and chronic recurrent major depression were well-controlled,
and (17) the fact that the plaintiff “responded well to supportive techniques
focused on consolidating her gains and coping with chronic illness.” Id. at 29–
30 (citing Dkt. No. 12-1 at 245–46, 252, 255, 257–58).
The ALJ referenced the plaintiff’s “largely normal” and “stable” mental
status examinations, citing both family nurse practitioner Barbara Szopinski’s
and Dr. Burgarino’s treatment records. Id. at 30 (citing Dkt. No. 12-1 at 285–
86). She considered Dr. Burgarino’s observations that the plaintiff “reported
short-term memory difficulties, which appeared anxiety related,” “continued on
her neuropsychiatric medication regimen as prescribed” and “continued to
receive treatment for ADD, generalized anxiety, panic disorder and bipolar
depression, which has been managed on a medication regimen.” Id. (citing Dkt.
No. 12-1 at 299, 331). The ALJ recounted that treating psychiatrist Dr.
Burgarino found the plaintiff to “respond[] well to supportive techniques
focused on consolidating her gains and coping with chronic illness.” Id. (citing
Dkt. No. 12-1 at 336). She cited treatment notes of licensed social worker
Trevor Huskey that reflected the plaintiff’s (1) unremarkable appearance, (2)
normal gait and posture, (3) steady eye contact, (4) “normal behavior,” (5)
complaints of a depressed mood, (6) flat affect, (7) congruent thought
processes, (8) “normal thought content,” (8) lack of notable perceptual
problems, (9) “normal orientation, speech and good insight,” (10) “good
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judgment, remote memory, recent memory and concentration” and (11) good
attention. Id. (citing Dkt. No. 12-1 at 351-52). And the ALJ observed that Dr.
Burgarino indicated that the plaintiff “continued to have normal mental states
examinations.” Id. (citing Dkt. No. 12-1 at 359).
The ALJ also considered the results of Dr. Jeffrey Polczinki’s May, 2017
consultative examination of the plaintiff (a year and four months before the
hearing). Id. at 30–31 (citing Dkt. No. 12-1 at 259–65). Dr. Polczinki stated that
the plaintiff’s visits with Dr. Burgarino in March, February and September
showed stability with medication. Dkt. No. 12-1 at 260. Dr. Polczinski opined
that the plaintiff could understand simple instructions and routine directions.
Id. He found that the plaintiff “may have some difficulties with attention and
concentration.” Id. at 31. Dr. Polczinski stated that the plaintiff “seems to be
able to relate appropriately to coworkers and supervisors” and “may have some
mild issues with managing stress and/or change.” Id. But Dr. Polczinski “noted
[the plaintiff’s] presentation was suspect based on her treatment records.” Id.
In rejecting Dr. Polczinski’s conclusions, the ALJ reasoned that “they
differ significantly from the treating psychiatrist who note[d] the claimant’s
mental status was well controlled with medication management,” and that Dr.
Polczinski himself “noted the claimant’s presentation was suspect for this
reason.” Id. at 31 (citing Dkt. No. 12-1 at 292–376).
Turning to the opinion evidence, the ALJ gave partial weight to the
conclusions of Drs. Cindy Matyi and Kathleen O’Brien, both medical
consultants with Disability Determination Services. Id. at 31–32. Dr. Matyi
opined that the plaintiff could adapt to a setting with routine and predictable
duties, recommended that changes in work routine be “well explained and
introduced slowly,” and found that the plaintiff “can interact appropriately in a
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work setting with minimal interaction with the general public, co-workers, and
supervisors.” Id. at 31. She concluded that the plaintiff could “carry out simple
and occasional complex tasks, maintain attention, make simple decisions, and
adequately adhere to a schedule.” Id. In Dr. Matyi’s opinion, the plaintiff could
not have strict time limits or production standards. Id. Citing “difficulty with
concentration and attention,” Dr. Matyi stated that the plaintiff “would do best
in a work setting with the ability to be off task 10 percent of the workday.” Id.
As to the plaintiff’s limitations, Dr. Matyi determined that she “has mild
restrictions in understanding, remembering or applying information, moderate
difficulties interacting with others, moderate difficulties in concentration,
persistence or pace and moderate difficulties in adapting or managing oneself.”
Id. (citing Dkt. No. 12-1 at 67–78). Dr. O’Brien “opined [the plaintiff] retains the
ability to understand, learn, remember, perform and sustain simple tasks in an
environment with limited contact with the public, co-workers and supervisors.”
Id. at 31–32 (citing Dkt. No. 12-1 at 79–92). In giving the opinions of the state
agency consultants partial weight, the ALJ explained that “they are generally
consistent with the overall medical evidence of record that shows [the plaintiff]
has a history of mental health symptoms, which have largely been controlled
with conservative management.” Id. at 32. (citing Dkt. No. 12-1 at 292–376).
However, the ALJ clarified that “[the plaintiff] would be limited to no more than
simple, routine work to prevent an exacerbation of her symptoms.” Id.
Similarly, the ALJ gave partial weight to the findings of the plaintiff’s
friend, Geneva Young. Id. Ms. Young opined that the plaintiff’s “condition
affects her ability to remember, complete tasks, concentrate, understand,
follow instructions, and get along with others.” Id. (citing Dkt. No. 12-1 at 212–
19). While she characterized Ms. Young’s findings as generally consistent with
18
the plaintiff’s allegations, the ALJ stated that “Ms. Young is not an acceptable
medical source.” Id.
The plaintiff asserts that bipolar disorder fluctuates and argues that the
fact that she was stable when she visited her doctor does not necessarily mean
that she will be stable enough to perform a full-time job. She cites the Seventh
Circuit’s opinion in Jelinek v. Astrue, 662 F.3d 805 (7th Cir. 2011). But the
Jelinek court was discussing an ALJ’s references to a claimant’s failure to
comply with medications, not stable progress notes from a treating physician.
The Jelinek court stated,
The ALJ apparently concluded that Jelinek’s symptoms would have
remained under control but for an unwillingness to take her
medications as directed. But we have often observed that bipolar
disorder, one of Jelinek’s chief impairments, is by nature episodic
and admits to regular fluctuations even under proper treatment.
ALJs assessing claimants with bipolar disorder must consider
possible alternative explanations before concluding that noncompliance with medication supports and adverse credibility
inference.
Id. at 814.
The plaintiff also cited Phillips v. Astrue, 413 Fed. App’x 878 (7th Cir.
2010). But again, the ALJ in that case noted all the plaintiff’s improvements,
without acknowledging that the plaintiff “improved only after the doctors had
adjusted her medications and discovered a new combination of prescriptions
that would adequately manage her symptoms.” Id. at 886.
Unlike the cases the plaintiff cites, hers is not a situation in which the
plaintiff’s treating physician concluded that her bipolar disorder and
depression prevented her from working, and the ALJ ignored that conclusion
and cherry-picked other medical records or opinions that indicated otherwise.
The ALJ credited the plaintiff’s treating physician, who repeatedly reported that
the plaintiff’s mental status exams were normal or stable. There is no question
19
that mental illness fluctuates and that people who suffer from mental illnesses
such as bipolar disorder and depression can have good days and bad days. But
the records the ALJ had before her indicated that the plaintiff was stable with
medication. Even Dr. Polczinski noted that the plaintiff’s descriptions of her
symptoms did not square with the records of her long-time treating physician.
The plaintiff also argues that the ALJ incorrectly concluded that she had
no exacerbation of her symptoms. It is true that on November 27, 2017, Dr.
Burgarino reported, “Mental status examination reveals increased difficulties
with attention, concentration and focus.” Dkt. No. 12-1 at 336. Two sentences
earlier, however, he wrote, “Mental status is stable.” Id. at 335. Similarly, Dr.
Burgarino’s progress report from January 16, 2018 states that the plaintiff’s
“[m]ental status examination is stable,” then states—as the plaintiff points
out—that he noted “[r]esidual mood lability with severe anxiety at times of
psychotiform proportions is noted.” Id. at 329. The plaintiff correctly recounts
that on June 25, 2018, Dr. Burgarino’s progress notes stated that the plaintiff
reported “continued short-term memory difficulties, which appear anxietyrelated.” Id. at 299. But that is not a report of deterioration or exacerbation—it
is, as he wrote, a report of a continuing symptom. And in this report, Dr.
Burgarino stated that the plaintiff’s mental status exam was “[n]ormal.” Id. Dr.
Burgarino’s progress reports do not support the plaintiff’s claims that her
symptoms were worsening or were exacerbated, and the ALJ did not err in
stating that the plaintiff had no recent history of exacerbations of her
symptoms.
The ALJ built the requisite logical bridge. Considering the record, the
ALJ’s decision reflects relevant evidence that a reasonable mind could accept
as adequate to support her conclusion that the plaintiff had the RFC to
20
perform a full range of work at all exertional levels with nonexertional
limitations: “simple, routine, repetitive non-complex work with occasional
change in work routine,” no fast-paced production work, occasional interaction
with co-workers and supervisors and no public contact. Id. at 28. The plaintiff
has not identified anything in the record that the ALJ failed to consider in
weighing her mental limitations. The court will not remand on this issue.
B.
Opinion Evidence
1.
The Plaintiff’s Brief
The plaintiff argues that the ALJ adopted only the portions of the opinion
evidence that supported the plaintiff’s ability to perform unskilled work. Dkt.
No. 17 at 17–18. She contends that the ALJ failed to explain “why she has
rejected the remainder of the assessments.” Id. at 18. The plaintiff reasons that
while the ALJ determined that the plaintiff could perform simple, routine tasks
throughout an eight-hour workday, doctors opined that the plaintiff “would be
off task 10% of the day, she could not have a job with strict time limits or
production standards and changes needed to be well-explained and introduced
slowly.” Id. She says that by accepting only portions of the assessments, the
ALJ failed to build a logical bridge between the evidence and the RFC. Id.
2.
The Commissioner’s Response
The Commissioner responds that the outcome in this case would have
been the same even if the ALJ had rendered an RFC expressly limiting the
plaintiff to work settings that allowed her to be off task 10% of the day and
where changes came slowly and with explanation. Dkt. No. 29 at 17–18. The
Commissioner asserts that the ALJ reasonably contrasted the opinions of the
state agency consultants with “the unremarkable results of the mental status
21
exams and Dr. Burgarino’s repeated observations in 2017 that [the plaintiff’s]
mental symptoms were well controlled.” Id. at 18.
The Commissioner maintains that “[t]he lack of a limitation to 10% off
task in the RFC finding was irrelevant.” Id. The Commissioner reasons that the
VE “identified numerous jobs that someone with Plaintiff’s RFC could perform
and importantly specified that all of those jobs allowed the employee to be off
task up to 10% of the time.” Id. (emphasis omitted). The Commissioner
contends that the VE therefore showed that “someone with Plaintiff’s mental
limitations could do numerous jobs in the national economy even if the ALJ
had adopted the state-agency psychologists’ observation that Plaintiff ‘would do
best’ in a job that allowed her to be off task 10% of the time.” Id. at 18-19
(citing Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989)). The
Commissioner stresses that the ALJ’s RFC determination—which limits the
plaintiff to “the simplest, most relaxed-paced tasks and only occasional
changes in routine”—requires changes to be well explained and introduced
slowly. Id. at 19. Regarding the state agency consultants’ opinion that the
plaintiff could not work within strict time limits or production standards, the
Commissioner argues that “the RFC accounted for that opinion, which, in any
event, also would not have changed the outcome of the case.” Id. at 18. The
Commissioner stresses that the state agency consultants clarified that the
plaintiff functioned “well enough to work.” Id. at 19.
The Commissioner contends that the ALJ’s choice to not expressly
include these limitations in the RFC was reasonable because the ALJ
concluded that the state agency consultants “partially underestimated” the
plaintiff’s mental functioning, and “because her own treating psychiatrist . . .
repeatedly observed that Plaintiff’s conditions were well-controlled.” Id. at 1922
20 (citing Dkt. No. 12-1 at 32). Citing SSR 96-6P, the Commissioner states that
the regulations operative at the time of the ALJ’s decision did not require her to
adopt the findings of the state-agency consultants. Id. at 20. She says the ALJ
adequately recognized and responded to the consultants’ conclusions. Id.
(citing Kolar v. Berryhill, 695 F. App’x 161-62 (7th Cir. 2017)).
3.
The Plaintiff’s Reply
According to the plaintiff, the Commissioner’s argument that the ALJ’s
RFC determination necessarily includes well-explained and slowly introduced
changes is an impermissible post hoc rationale. Dkt. No. 32 at 5 (citing
Golembiewski v. Barnhart, 322 F.3d 912, 916 (7th Cir. 2003)).
4.
Analysis
There is no basis for remand on this issue. As the court has stated, it
cannot substitute its judgment for that of the Commissioner by reweighing
evidence. Even if the ALJ erred in not explicitly including in the RFC a
limitation to jobs that allowed the plaintiff to be off task up to 10% of the time
and where changes are well-explained and introduced slowly, that error would
be harmless. The ALJ asked the VE about a hypothetical, limiting the claimant
to
medium level work. Mentally limited to jobs considered
simple, routine, repetitive, non-complex. Occasional change
in work routine. No fast paced production type work. No
public contact. Occasional interaction with coworkers and
supervisors. No climbing ropes, ladders, scaffolds, working
with heights or hazards. Occasional stooping, kneeling,
crawling, balancing and crouching. Occasionally climbing
ramps and stairs.
Dkt. No. 12-1 at 60. The ALJ then asked the VE about a claimant who needed
to be off task up to 10% of the time; the VE identified jobs that specifically
allowed a claimant to be off task up to 10% of the time. Id. at 61. The RFC
23
limits the plaintiff to “simple, routine, repetitive non-complex work with
occasional change in work routine,” no “fast-paced production work,”
“occasional interaction with co-workers and supervisors” and “no public
contact.” Id. at 28. This shows that the ALJ considered all the limitations
presented by the offered opinion testimony. The RFC accounts for the opinion
evidence in the record.
C.
Concentration, persistence and pace
1.
The Plaintiff’s Brief
The plaintiff contends that the ALJ’s hypothetical did not “explicitly
state” or account for the plaintiff’s moderate limitation in concentration,
persistence and pace. Dkt. No. 17 at 19. She says the ALJ failed to offer a
“detailed connection (between [the plaintiff’s] deficits in concentration,
persistence, or pace and assigned limitation) to the VE.” Id. at 20. Concluding
that “no reasonable reviewer could glean such a connection from reviewing ALJ
O’Grady’s decision,” the plaintiff argues that “even the Agency reviewers found
greater deficits in concentration, persistence or pace than explained by the
ALJ.” Id. She says that while “the Agency opinions specifically found [the
plaintiff] could not perform a job with ‘strict time limits or production
standards,’” the jobs the ALJ cited at step five “are all assembly line or packing
work.” Id. The plaintiff concludes that “[t]herefore, . . . this matter warrants a
remand or reversal.” Id. at 20-21.
2.
The Commissioner’s Response
The Commissioner responds that the plaintiff’s argument “is based on
outdated authority and a misinterpretation of the relationship between the
mental RFC and the moderate rating in concentration persistence or pace that
the ALJ found at step three.” Dkt. No. 29 at 20–21. The Commissioner argues
24
that ALJs do not normally phrase mental restrictions in moderate or marked
limitations at steps four and five and instead “usually attempt to translate
such a limitation into job-related restrictions that a VE is likely to understand.”
Id. at 21 (citing Thompson v. Saul, 470 F. Supp. 3d 909, 927 (E.D. Wis. 2020))
(internal quotations omitted).
Citing Jozefyk v. Berryhill, 923 F.3d 492, 498 (7th Cir. 2019), the
Commissioner argues that “[r]ecent decisions clarify that even less robust
mental limitations than those at issue here can be compatible with a moderate
rating in the broad functional category of concentration, persistence, or pace.”
Id. at 22. The Commissioner opines that the ALJ’s RFC determination
reasonably translated the plaintiff’s moderate limitation in concentration,
persistence or pace into “vocationally understandable terms.” Id. He asserts
that the plaintiff has not met her burden of identifying “potentially persuasive
limitations that were unreasonably excluded from the mental RFC.” Id. at 23.
The Commissioner stresses that the RFC accounted for the opinions of the
state agency consultants. Id. And the Commissioner argues that the ALJ
reasonably relied on the VE’s testimony at step five. Id. at 23–24. The
Commissioner reasons that the plaintiff “presents no reason or authority—
besides her own post hoc, lay say so—establishing that the ALJ unreasonably
relied on the impartial expert’s testimony that someone with Plaintiff’s RFC
could perform the jobs the vocational expert identified and indeed could do
those jobs while being off task up to 10% of the time.” Id. at 24 (citing Dkt. No.
12-1 at 33–34, 60–62).
3.
The Plaintiff’s Reply
The plaintiff replies that the Commissioner’s reliance on Jozefyk is
misguided because “the claimant in that case failed to testify about any
25
restrictions regarding concentration, persistence or pace deficits and the record
did not support any.” Dkt. No. 32 at 6. The plaintiff distinguishes her own case
by stating that her “psychiatrist noted increased difficulties with attention,
concentration and focus,” id. (citing Dkt. No. 12-1 at 335–36), and “ongoing
short term memory difficulties, which appear anxiety related,” id. (citing Dkt.
No. 12-1 at 299). The plaintiff stresses her testimony relating to her relative
highs and lows throughout a day and her memory difficulties. Id. (citing Dkt.
No. 12-1 at 55–58). Based on that testimony, the plaintiff argues that Jozefyk is
inapposite. Id.
4.
Analysis
This issue has been heavily litigated in the recent past. The Seventh
Circuit has held that eliminating strict production quotas or a fast pace does
not adequately account for a moderate limitation in maintaining concentration,
persistence or pace. DeCamp v. Berryhill, 916 F.3d 671, 675–76 (7th Cir.
2019); O'Connor-Spinner v. Colvin, 832 F.3d 690, 698 (7th Cir. 2016). Without
overruling these cases, the Seventh Circuit more recently has held that “a
‘moderate’ limitation in performing at a consistent pace seems consistent with
the ability to perform simple, repetitive tasks at a consistent pace.” Pavlicek v.
Saul, 994 F.3d 777, 783 (7th Cir. 2021). While the Seventh Circuit does not
require specific phrasing with respect to moderate limitations in concentration,
persistence and pace, Lothridge v. Saul, 984 F.3d 1227, 1233 (7th Cir. 2021);
Crump v. Saul, 932 F.3d 567, 570 (7th Cir. 2019), it still requires an ALJ to
build a logical bridge between the evidence and the limitation. Again, a
moderate restriction may translate into a quota or pace limitation where the
ALJ draws it from the narrative assessment of a doctor, Pavlicek, 994 F.3d at
783; Burmester v. Berryhill, 920 F.3d 507, 511 (7th Cir. 2019); Baldwin v.
26
Berryhill, 746 Fed. App’x 580, 584 (7th Cir. 2018), or where the ALJ traces it
from the claimant’s testimony regarding what distracted her or gave her
problems concentrating, see Martin v. Saul, 950 F.3d 369, 374 (7th Cir. 2020)
(holding that there are no “magic words,” but that the ALJ must account for
the totality of a plaintiff’s limitations); Kuykendoll v. Saul, 801 Fed. App’x 433,
438 (7th Cir. 2020). As the Seventh Circuit explained in Urbanek v. Saul, 796
F. Appx. 910, 914 (7th Cir. 2019), “even generic limitations, such as limiting a
claimant to simple, repetitive tasks, may properly account for moderate
limitations in concentration, persistence, and pace, so long as they ‘adequately
account for the claimant's demonstrated psychological symptoms’ found in the
record.”
Here, the ALJ built the requisite logical bridge. Consultative examiner Dr.
Polczinski opined that while the plaintiff “may have some difficulties with
attention and concentration,” she was “able to understand at least simple
instructions” and “recall routine directions.” Dkt. No. 12-1 at 264. In her
psychiatric review, state agency consultant Dr. Matyi considered Dr.
Polczinski’s report and opined that the plaintiff had a moderate limitation in
concentration, persistence or pace. Id. at 72, 74. She explained that the
plaintiff was able to understand simple instructions and recall routine
directions. Id. at 72–73. She concluded that the plaintiff (1) did not have
understanding and memory limitations, (2) was not significantly limited in her
ability to carry out very short and simple instructions, (3) was moderately
limited in her ability to carry out detailed instructions, (4) was moderately
limited to maintain attention and concentration for extended periods, (5) was
not significantly limited in her ability to perform activities within a schedule,
maintain regular attendance or be punctual within customary tolerances, (6)
27
was not significantly limited in her ability to sustain an ordinary routine
without special supervision, (7) was moderately limited in the ability to work in
coordination with or proximity to others without distraction, (8) was not
significantly limited in the ability to make simple work-related decisions, and
(9) was moderately limited in the ability “to complete a normal workday and
workweek without interruptions from psychologically based symptoms and to
perform at a consistent pace without an unreasonable number and length of
rest periods.” Id. at 74–75. In a narrative assessment, Dr. Matyi stated that the
plaintiff “[could] carry out simple and occasional complex tasks, maintain
attention, make simple decisions, and adequately adhere to a schedule.” Id. at
75. She restricted the plaintiff to “[n]o strict time limits or production
standards,” and found that the plaintiff “would do best in a work setting with
the ability to be off task 10% of the work day.” Id. State agency consultant Dr.
Kathleen O’Brien reached the same conclusions. Id. at 88–89.
Regarding the hypothetical, the ALJ examined VE William Dingess
during the plaintiff’s September 13, 2018 hearing. Dkt. No. 12-1 at 58–62. In
the hypothetical, the ALJ limited the hypothetical claimant to
medium level work. Mentally limited to jobs considered simple,
routine, repetitive, non-complex. Occasional change in work
routine. No fast paced production type work. No public contact.
Occasional interaction with coworkers and supervisors. No climbing
ropes, ladders, scaffolds, working with heights or hazards.
Occasional stooping, kneeling, crawling, balancing and crouching.
Occasionally climbing ramps and stairs.
Id. at 60. While the VE concluded that such a hypothetical claimant could not
perform the plaintiff’s past relevant work, he opined that such a claimant could
work as a housekeeping cleaner, assembler-light level, hand packager-medium,
assembler-sedentary and hand packer-sedentary. Id. at 60–61. The VE testified
that these jobs allowed a worker to be off task no more than ten percent of the
28
time and provided two fifteen-minute breaks and one half-hour meal break
separated by about two hours of the course of an eight-hour work shift. Id. at
61–62.
The ALJ found that the plaintiff has a moderate limitation in
concentrating, persisting or maintaining pace. Dkt. No. 12-1 at 27. The RFC
limits the plaintiff to “simple, routine, repetitive non-complex work with
occasional change in work routine,” no “fast-paced production work,”
“occasional interaction with co-workers and supervisors” and “no public
contact.” Id. at 28. The ALJ connected these findings to evidence in the record.
Her decision cited the reports of Drs. Polczinski, Matyi and O’Brien. Id. at 30–
32. The ALJ noted the plaintiff’s allegations that while she is “able to pay
attention for a few minutes,” her “condition affects her ability to remember,
complete tasks, concentrate, understand, follow instructions and finish what
she starts. Id. at 28–29 (citing Dkt. No. 12-1 at 203–11). Citing treatment
records, the ALJ observed that the plaintiff “was alert and oriented with no
noted deficits to memory or concentration,” id. at 27 (citing dkt. no. 12-1 at
271–91, and “had good concentration and attention,” id. (citing dkt. no. 12-1 at
291-376). The ALJ’s hypothetical adequately accounted for the plaintiff’s
moderate limitation in concentration, persistence and pace. The ALJ’s findings
in conjunction with the jobs the VE identified are adequate to support the
conclusion that there are jobs in the national economy that the plaintiff can
perform. Substantial evidence supported the ALJ’s determinations regarding
the plaintiff’s limitations in concentration, persistence and pace.
29
D.
Plaintiff’s Symptoms
1.
The Plaintiff’s Brief
Finally, the plaintiff argues the ALJ “rendered an erroneous symptom
determination.” Dkt. No. 17 at 21. She contends that the ALJ erred in
concluding that her statements regarding the intensity of her symptoms were
“not entirely consistent with the medical evidence and other evidence in the
record.” Id. (citing Dkt. No. 12-1 at 31). The plaintiff asserts that the applicable
standard does not require alleged symptoms to be “entirely or fully consistent”
with the record. Id. (citing 20 C.F.R. §404.953(a); Minger v. Berryhill, 307 F.
Supp. 3d 865, 871 (N.D. Ill. 2018)). According to the plaintiff, “[t]o the extent
that [the ALJ] explained her rationales for dismissing [the plaintiff’s] testimony
and subjective complaints, they were improper.” Id. at 22. She argues that the
ALJ incorrectly recounted consultative examiner Dr. Polczinksi’s discussion of
her daily activities. Id. (citing Dkt. No. 12-1 at 261, 30–31). Conceding that Dr.
Polczinski found her allegations of symptoms “a bit suspect,” the plaintiff
stresses that he nevertheless “did not dismiss [the plaintiff’s] mental health
problems and opined that she would be limited as an employee.” Id. (citing Dkt.
No. 12-1 at 262–64).
Recalling her prescriptions for various medications, the plaintiff argues
that the ALJ failed to consider the impact of side effects on her ability to work.
Id. at 23. She concludes that the ALJ failed to “adequately consider [her] daily
activities, characterized as significantly passive.” Id. (citing Dkt. No. 12-1 at
264). The plaintiff argues that “the ALJ gave no rationale as to how a person
who engages in such restricted physical activity would have the capacity to
work full-time at a light level.” Id. at 24 (citing Clifford, 227 F.3d at 872). She
asserts that the ALJ’s failure to consider her limited daily activities coupled
30
with her health issues shows that “the ALJ’s symptom determination was
improper.” Id. at 25.
2.
The Commissioner’s Response
The Commissioner argues that “[a] common sense reading of the decision
indicates that the ALJ determined that inconsistencies with the record lack
support from the medical evidence undermined the accuracy of Plaintiff’s
complaints.” Dkt. No. 29 at 13 (citing Castile v. Astrue, 617 F.3d 923, 929 (7th
Cir. 2010)). The Commissioner argues that even if the ALJ’s use of boilerplate
language was error, it was harmless because substantial evidence otherwise
supported the ALJ’s consideration of the plaintiff’s allegations of her subjective
symptoms. Id. He reasons that the plaintiff has not challenged the
reasonableness of the ALJ’s conclusion that the plaintiff’s ability to drive, shop,
go outside and maintain a friendship undermined her testimony. Id. at 15. The
Commissioner adds that even if the ALJ erred in discussing the plaintiff’s daily
activities, that error was harmless given the whole of the ALJ’s decision. Id. at
15–16 (citing Simila v. Astrue, 573 F.3d 503, 517 (7th Cir. 2009)).
The Commissioner contends that consultative examiner Dr. Polczinski
did not corroborate the plaintiff’s testimony. Id. at 16. The Commissioner says
that the ALJ reasonably considered Dr. Polczinski’s report, “which did not
establish that the ALJ’s weighing of plaintiff’s subjective complaints was
patently wrong.” Id. Regarding the ALJ’s decision not to discuss the plaintiff’s
medicinal side effects, the Commissioner again asserts that “substantial
evidence showed that Plaintiff’s subjective complaints were not persuasive,”
and that the plaintiff has identified no other evidence of her side effects. Id. at
16–17. Finally, the Commissioner concludes that the ALJ reasonably
discounted the plaintiff’s allegations of “extremely limited activities” because
31
“no treatment provider corroborated them, her own treatment provider said her
conditions were well controlled, she repeatedly said she was doing well, her
mental status exams were largely normal, and she engaged in some activities
that indicated she was not as limited as she described.” Id. at 17. The
Commissioner asks the court to “resist Plaintiff’s invitation to reconsider the
ALJ’s weighing of Plaintiff’s subjective complaints.” Id. (citing Moore v. Colvin,
743 F.3d 1118, 1121 (7th Cir. 2014)).
3.
Analysis
The plaintiff’s argument amounts to a request for this court to remand
the case because the ALJ did not adopt or credit her allegations of her
symptoms. On the record before it, this court cannot do so. As the court has
explained, the ALJ reasonably declined to adopt the plaintiff’s allegations of her
symptoms. The ALJ tied her decision to evidence that a reasonable mind could
accept as adequate to support her conclusion that the plaintiff had the RFC to
perform a full range of work at all exertional levels with nonexertional
limitations “simple, routine, repetitive non-complex work with occasional
change in work routine,” no fast-paced production work, occasional interaction
with co-workers and supervisors and no public contact. Id. at 28.
This court acts as an appellate court in Social Security cases. It cannot
make credibility determinations, or weigh evidence. It is limited to reviewing the
rationales provided by the ALJ under the standards articulated in a regulatory
framework and in years of case law. In that role, the court cannot conclude
that the ALJ committed error warranting remand.
IV.
Conclusion
The court ORDERS that the decision of the Commissioner is AFFIRMED.
The clerk will enter judgment accordingly.
32
The court ORDERS that this case is DISMISSED.
Dated in Milwaukee, Wisconsin this 24th day of October, 2024.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
Chief United States District Judge
33
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