# Krontz v. Commissioner of Social Security

> District Court, N.D. Indiana · December 3, 2021

URL: https://www.frixlaw.com/law-library/cases/10161805

## Case

- **Court:** District Court, N.D. Indiana
- **Decided:** December 3, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10161805

## How later opinions describe it (automated extraction)

- stating that opinions may be discounted for relying on subjective complaints that are not credible
- finding any error harmless because plaintiff did not assert any appropriate RFC restrictions to properly account for moderate limitations and medical records did not support any such restrictions

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
DAVID K.1, )
)
Plaintiff, )
)
v. ) CIVIL NO. 1:20cv391
)
KILOLO KIJAKAZI, Acting )
Commissioner of Social Security, )
)
Defendant. )
OPINION AND ORDER
This matter is before the court for judicial review of a final decision of the defendant
Commissioner of Social Security Administration denying Plaintiff's application for Disability
Insurance Benefits (DIB) under Title II of the Social Security Act. 42 U.S.C. § 423(a), and
Supplemental Security Income (SSI) under Title XVI of the Act. 42 U.S.C § 1383(c). Section
205(g) of the Act provides, inter alia, "[a]s part of his answer, the [Commissioner] shall file a
certified copy of the transcript of the record including the evidence upon which the findings and
decision complained of are based. The court shall have the power to enter, upon the pleadings
and transcript of the record, a judgment affirming, modifying, or reversing the decision of the
[Commissioner], with or without remanding the case for a rehearing." It also provides, "[t]he
findings of the [Commissioner] as to any fact, if supported by substantial evidence, shall be
conclusive. . . ." 42 U.S.C. §405(g).
The law provides that an applicant for disability benefits must establish an "inability to
engage in any substantial gainful activity by reason of any medically determinable physical or
1 For privacy purposes, Plaintiff’s full name will not be used in this Order.
mental impairment which can be expected to last for a continuous period of no less than 12
months. . . ." 42 U.S.C. §416(i)(1); 42 U.S.C. §423(d)(1)(A). A physical or mental impairment
is "an impairment that results from anatomical, physiological, or psychological abnormalities
which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques."

42 U.S.C. §423(d)(3). It is not enough for a plaintiff to establish that an impairment exists. It
must be shown that the impairment is severe enough to preclude the plaintiff from engaging in
substantial gainful activity. Gotshaw v. Ribicoff, 307 F.2d 840 (7th Cir. 1962), cert. denied, 372
U.S. 945 (1963); Garcia v. Califano, 463 F.Supp. 1098 (N.D.Ill. 1979). It is well established that
the burden of proving entitlement to disability insurance benefits is on the plaintiff. See Jeralds
v. Richardson, 445 F.2d 36 (7th Cir. 1971); Kutchman v. Cohen, 425 F.2d 20 (7th Cir. 1970).
Given the foregoing framework, "[t]he question before [this court] is whether the record

as a whole contains substantial evidence to support the [Commissioner’s] findings." Garfield v.
Schweiker, 732 F.2d 605, 607 (7th Cir. 1984) citing Whitney v. Schweiker, 695 F.2d 784, 786
(7th Cir. 1982); 42 U.S.C. §405(g). "Substantial evidence is defined as 'more than a mere
scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.'" Rhoderick v. Heckler, 737 F.2d 714, 715 (7th Cir. 1984) quoting
Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1410, 1427 (1971); see Allen v. Weinberger,
552 F.2d 781, 784 (7th Cir. 1977). "If the record contains such support [it] must [be] affirmed,
42 U.S.C. §405(g), unless there has been an error of law." Garfield, supra at 607; see also

Schnoll v. Harris, 636 F.2d 1146, 1150 (7th Cir. 1980).
In the present matter, after consideration of the entire record, the Administrative Law
Judge ("ALJ") made the following findings:
2
1. The claimant meets the insured status requirements of the Social Security Act
through December 31, 2018.
2. The claimant has not engaged in substantial gainful activity since March 15, 2017,
the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: status-post fracture of the
right lower extremity; degenerative disc disease of the cervical spine;
asymptomatic HIV; obesity; and anxiety disorder (20 CFR 404.1520(c) and
416.920(c)).
4. The claimant does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined in
20 CFR 404.1567(b) and 416.967(b) except subject to the following additional
limitations: The claimant is able to occasionally climb stairs or ramps, balance,
and stoop. He should never kneel, crouch, crawl or climb ladders, ropes or
scaffolds. He must avoid concentrated exposure to dangerous or uneven terrain,
moving machinery and unprotected heights. He is able to work with an option to
sit or stand, changing positions no more frequently than every 30 minutes, while
remaining on task. He is able to perform work that can be learned in 30 days, or
less, with simple routine tasks. He is able to remain on task in two-hour
increments.
6. The claimant has no past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on August 12, 1967 and was 49 years old, which is defined
as a younger individual age 45-49, on the alleged disability onset date. The
claimant subsequently changed age category to closely approaching advanced age
(20 CFR 404.1563 and 416.963).
8. The claimant has a limited education and is able to communicate in English (20
CFR 404.1564 and 416.964).
9. Transferability of job skills is not an issue because the claimant does not have past
relevant work (20 CFR 404.1568 and 416.968).
10. Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the national
3
economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969,
and 416.969(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act,
from March 15, 2017, through the date of this decision (20 CFR 404.1520(g) and
416.920(g)).
(Tr. 15-29).
Based upon these findings, the ALJ determined that Plaintiff was not entitled to benefits,
leading to the present appeal.
Plaintiff filed his opening brief on September 7, 2021. On November 16, 2021 the
defendant filed a memorandum in support of the Commissioner’s decision, to which Plaintiff
replied on November 30, 2021. Upon full review of the record in this cause, this Court is of the
view that the Commissioner’s decision should be affirmed.
A five step test has been established to determine whether a claimant is disabled. See
Singleton v. Bowen, 841 F.2d 710, 711 (7th Cir. 1988); Bowen v. Yuckert, 107 S.Ct. 2287, 2290-
91 (1987). The United States Court of Appeals for the Seventh Circuit has summarized that test
as follows:

The following steps are addressed in order: (1) Is the claimant
presently unemployed? (2) Is the claimant's impairment "severe"?
(3) Does the impairment meet or exceed one of a list of specific
impairments? (4) Is the claimant unable to perform his or her
former occupation? (5) Is the claimant unable to perform any other
work within the economy? An affirmative answer leads either to
the next step or, on steps 3 and 5, to a finding that the claimant is
disabled. A negative answer at any point, other than step 3, stops
the inquiry and leads to a determination that the claimant is not
disabled.
Nelson v. Bowen, 855 F.2d 503, 504 n.2 (7th Cir. 1988); Zalewski v. Heckler, 760 F.2d 160, 162
4
n.2 (7th Cir. 1985); accord Halvorsen v. Heckler, 743 F.2d 1221 (7th Cir. 1984). In the present
case, Step 5 was the determinative inquiry.
Infectious diseases specialist nurse practitioner Andrew Barchus first saw Plaintiff on
March 29, 2016 for follow-up of his HIV positive status following a move to the area in the

previous year. (Tr. 447). NP Barchus noted that Plaintiff was originally diagnosed in 2004 and
had only two short periods of medication non-compliance ranging over a few months. Plaintiff
said he had “no real” symptoms “except for chronic fatigue.” Id. NP Barchus saw Plaintiff
again in July and November of 2016; February and July of 2017; January, May, and June of
2018; and February, May, and October of 2019. (Tr. 465, 479, 527, 540, 633, 659, 679, 1003,
1018-19). Plaintiff reported having loose stools in November 2016, which had resolved by
February 2017. (Tr. 527). At the January 2018 visit, Plaintiff disclosed that he used meth about 5

months prior but had stopped and retained sobriety since then. (Tr. 634). He also complained of
abdominal, right knee, and right shoulder pain. Id. By May 2018, he reported some improvement
with his abdominal pain. (Tr. 660). In June 2018, he acknowledged drinking alcohol “on a
somewhat regular basis” and said that he was not able to work primarily due to back issues. (Tr.
680).
NP Barchus provided an undated letter regarding Plaintiff that was submitted on August 5,
2019. (Tr. 934-35). He noted that Plaintiff “was diagnosed with HIV/AIDS in 2004 and carries a
formal diagnosis of AIDS which means his immune system has suffered significant distortion. He

has had persistent severe fatigue since his diagnosis along with intermittent nausea and emesis; he
also has reported to me on several occasions diarrhea, which can be a side effect of his HAART.”
(Tr. 935). NP Barchus also replied to a physical residual RFC questionnaire on July 11, 2019. (Tr.
5
937-41). In this questionnaire, he again noted “at times significant fatigue” but also stressed that
Plaintiff had musculoskeletal diagnoses unrelated to his HIV/AIDS that would best be addressed
by his orthopedist’s records. (Tr. 937). He believed that Plaintiff would be capable of only
low-stress jobs due to his chronic severe fatigue and chronic gastrointestinal issues, and he also

believed that Plaintiff would frequently experience pain or other symptoms severe enough to
interfere with the attention and concentration needed to perform even simple work tasks. (Tr.
938).
Plaintiff established care with family medicine physician Jason Row, M.D. on May 26,
2017, complaining of cough and insomnia and seeking smoking cessation at that time. (Tr. 689).
Plaintiff returned to Dr. Row on August 25, 2017, complaining of fatigue and low libido. (Tr.
697). Plaintiff went to the Parkview ER on January 7, 2018 for abdominal pain, nausea, and

diarrhea. (Tr. 555). He had a positive Murphy’s sign on exam, but a gallbladder ultrasound was
unremarkable. (Tr. 558-59). He was discharged with a differential diagnosis of mild biliary colic
versus gastritis. (Tr. 559). Plaintiff returned to Dr. Row on January 19, 2018 for a follow up from
the ER visit. (Tr. 701). Once more, a positive Murphy’s sign was noted. (Tr. 703). Plaintiff then
saw nurse practitioner Chelsea Bodinka on February 1, 2018 for “stiff neck” and flu-like
symptoms. (Tr. 712-713). He saw family medicine physician Christopher Conrad, M.D. for the
same symptoms on the following day, after negative flu testing and a lack of improvement with
Tessalon Perles, Delsym, or Mucinex DM. (Tr. 715). Dr. Conrad prescribed an albuterol inhaler,

doxycycline, and prednisone. Id. When Plaintiff saw Dr. Row again on March 2, 2018, his cough
had finally resolved, but he said that chest wall discomfort persisted and was not helped by
ibuprofen and Aleve, although Norco helped “considerably.” (Tr. 720). Dr. Row assessed
6
thoracic myofascial strain, prescribing Flexeril and an additional twelve tablets of Norco, as he
suspected that the pain “should be wrapping up in the next several days.” (Tr. 721-22).
Plaintiff returned to Dr. Row on July 30, 2018, complaining of ongoing back pain that
woke him at night; he said he had to cut down on his work hours due to this back pain, as well as

pain in his feet and left sacroiliac area. (Tr. 723). He also complained of numbness throughout
his left hand and fingers with right little finger numbness. Id. On examination, he had limited left
rotation of the spine, painful cervical spine extension and leftward rotation, tenderness in the left
thoracic paraspinal muscles and in the trapezius, and symmetrically depressed reflexes at the
biceps and brachioradialis bilaterally but normal sensation in the fingers. (Tr. 724). Dr. Row
suggested physical therapy. (Tr. 725).
Plaintiff presented to Dr. Stephanie Ruales for evaluation of severe neck pain on August

7, 2018; range of motion was decreased, there was thoracic and cervical spine tenderness, and
cervical spine x-rays demonstrated straightening of the normal lordotic curvature and only very
mild degenerative changes. (Tr. 797, 799). Dr. Ruales encouraged continuing with muscle
relaxants and NSAIDs and participating in the scheduled physical therapy, although she did
provide a prescription for Norco. (Tr. 800).
Plaintiff presented for physical therapy evaluation on August 10, 2018, where he was
noted to exhibit “cervical and thoracic pain consistent with radiographic findings of facet
degeneration as well as significant myofascial restrictions that are painful and limit functional

mobility.” (Tr. 731). After going to the physical therapy evaluation, Plaintiff experienced
worsened pain and went to the ER that same day because he said his doctor’s office could not
provide any more pain medicine prescriptions. (Tr. 810). Because Plaintiff had just been provided
7
a Norco prescription three days earlier and because this was a chronic pain situation, the ER
physician did not feel comfortable prescribing anymore narcotic pain medications, and Plaintiff
became “very upset.” (Tr. 813). Cervical spine MRI on August 16, 2018 demonstrated mild to
moderate cervical spondylosis with spinal and foraminal stenoses at multiple levels, as well as a

likely cyst. (Tr. 784-85).
While participating in physical therapy, Plaintiff also presented to pain management
physician Gianna Casini on August 28, 2018. (Tr. 781). On examination, Dr. Casini noted that
Plaintiff’s cervical paraspinous muscles and bilateral trapezius muscles were exquisitely tender,
and there was pain with all range of motion. (Tr. 787). Dr. Casini provided a list of alternative
sleep aids as Plaintiff could not take narcotics while on Ambien; she also discontinued gabapentin
due to drowsiness and started Lyrica. (Tr. 788). She additionally ordered a TENS unit. Id.

Psychologist Leslie Predina conducted a consultative mental status examination of
Plaintiff on September 6, 2018. (Tr. 791). Dr. Predina noted that Plaintiff was cooperative and
appeared to put forth good effort, his affect was flat, and his ability to sustain concentration and
persistence appeared impaired. (Tr. 792). Mental status exam performance also indicated some
issues with his level of cognitive functioning, his judgment and common sense appeared to be
slightly impaired, and he also appeared to be experiencing minor problems with his memory. (Tr.
794). Dr. Predina opined that Plaintiff “appears to have the cognitive ability to perform
comparable jobs to that which he has performed in the past,” although his “ability to sustain his

concentration and persistence appeared to be impaired. He would likely have some problems
being able to concentrate and persist on his job responsibilities.” (Tr. 794). Dr. Predina
diagnosed non-REM sleep arousal disorder of the sleepwalking type with sleep-related eating
8
and social anxiety disorder. Id.
Plaintiff went back to Dr. Row on October 29, 2018 for rhinorrhea and right thumbnail
swelling and pain. (Tr. 806). Dr. Row assessed a viral upper respiratory tract infection and
paronychia of the right thumb. (Tr. 807).

Plaintiff fell off a ladder and went to the Parkview ER on November 7, 2018 due to
resultant right ankle pain. (Tr. 826). X-rays revealed a fracture of the ankle. (Tr. 829-30). He was
placed in a boot and crutches and was instructed to be non-weightbearing until surgery could be
performed the following day. (Tr. 830). Surgeon David Goertzen performed an open reduction
and internal fixation of the right ankle trimalleolar fracture on the next day as planned. (Tr. 849-
50). Plaintiff was instructed to remain non-weightbearing on his right lower extremity. (Tr. 882).
Plaintiff followed up from the procedure on December 26, 2018 with nurse practitioner Ruth

Poppele. (Tr. 907). He reported a dull, intermittent pain and stated that his condition had
improved. He was using assistive devices to help with his gait. NP Poppele instructed Plaintiff
to be weightbearing as tolerated in his boot, gradually increasing the weightbearing and weaning
from his fixed ankle walker to a shoe. Id. Plaintiff continued to report pain and continued to use
assistive devices at visits in January and March of 2019, and weightbearing as tolerated was
continually recommended. (Tr. 919, 925).
Dr. Row saw Plaintiff on April 8, 2019, at which time Plaintiff complained of muscle
cramping in the calf and thigh and significant atrophy. (Tr. 914). Dr. Row noted, “He is just

starting to use the leg again and is now nearly full weight-bearing with 1 crutch.” Id. Plaintiff
also reported neuropathic symptoms in his left hand, and Dr. Row believed that this would
resolve with time as Plaintiff got off the crutch. (Tr. 914, 916). Dr. Row increased Plaintiff’s
9
gabapentin to address the pain and paresthesias. (Tr. 916). Plaintiff went back to NP Poppele for
postoperative follow-up the next day, and he complained of pain and swelling. (Tr. 921). He was
still using assistive devices and was still instructed to be weight-bearing as tolerated. (Tr. 922).
At a visit on June 21, 2019, Dr. Row noted that Plaintiff was still walking with a crutch;

Plaintiff said that his “orthopedic surgeon told him the fracture line wasn’t completely filled in.”
(Tr. 931). Dr. Row observed slight swelling about the right ankle. (Tr. 932). Dr. Row also noted
that there “seems to be a gap between [what the] orthopedic surgeon told him and what his office
nurse told us about whether his fracture is healed and whether he should have ongoing pain. He
will sort that out with them and ask that they send us a report.” (Tr. 933). Dr. Goertzen, the
surgeon, saw Plaintiff on June 26, 2019. (Tr. 999). Dr. Goertzen noted that x-rays showed that
the fracture was healing well; he demonstrated some stretching exercises and discussed the

possibility of removing the hardware in the ankle in the future if he continued to experience pain.
(Tr. 1000).
Physical therapist Jason Winegardner conducted a functional capacity evaluation (FCE) of
Plaintiff on September 5th and 11th of 2019. (Tr. 943). Mr. Winegardner noted, “Plaintiff reports
after first day of testing his pain levels were unusually higher than normal notably at the left knee
and right ankle.” (Tr. 945). Testing showed decreased range of motion in the cervical spine,
shoulders, wrists, hips, left knee, and ankles. (Tr. 945-46). He also had reduced strength in his
cervical spine, abdomen, and upper and lower extremities. (Tr. 946-47). He had significant

decrease in his grip strength bilaterally. (Tr. 947). Mr. Winegardner observed signs of physical
discomfort during testing, including facial wince, sighing, shaking out the hands between reps,
and holding and massaging the hands. Plaintiff had significantly decreased single leg stances. He
10
ambulated without an assistive device, and his gait was bilaterally antalgic. Id. He exhibited signs
of competitive test performance, including quick correction following error and voiced
exasperation with error. (Tr. 949). He had moderate difficulty with handling and dexterity of test
pieces during some of the tests. Id. Mr. Winegardner concluded, “Overall test findings, in

combination with clinical observations, suggest the presence of full physical effort on [Plantiff’s]
behalf” and also identified his “subjective reports of pain and disability to be both reasonable and
reliable. The presence of pain and/or fatigue were not in contradiction with observed and
measured evidence. Repetitive testing and movements remained without inconsistencies.” (Tr.
952). Mr. Winegardner opined, based on the test results, that Plaintiff could rarely stand and
could rarely walk while being limited to short distances, could occasionally reach forward, could
occasionally grasp lightly and never grasp firmly, could occasionally handle and finger, and could

rarely lift no more than five pounds safely from waist to shoulder with no other lifting, among
other limitations. These limitations were provided with the additional definition of “rare” as up to
5% of the day and “occasional” as up to one-third of the day. Id.
Plaintiff followed up with Dr. Row on October 8, 2019. (Tr. 1035). Dr. Row then
provided responses to a physical RFC questionnaire on October 22, 2019. (Tr. 986-90). He noted
that there was no sign of malingering present on the FCE. (Tr. 987). He believed that Plaintiff
would constantly experience pain or other symptoms severe enough to interfere with attention and
concentration needed to perform even simple work tasks. Id. He stated that Plaintiff could sit up

to about four hours and stand or walk less than two hours in an eight-hour workday. (Tr. 988). He
also believed that Plaintiff would need frequent unscheduled breaks throughout the day, lasting
ten to fifteen minutes at a time. He limited Plaintiff to rarely lifting and carrying less than 10
11
pounds and never lifting and carrying 10 pounds or more. Id. He indicated further limitations,
including handling or fingering only a third of the time bilaterally and reaching overhead only ten
percent of the time bilaterally. (Tr. 989). Finally, he estimated that Plaintiff would be absent from
work more than four days per month as a result of his impairments and treatment. Id.

In the meantime, Plaintiff saw podiatrist Michael McManus on October 1, 2019 to
address his ongoing right ankle pain. (Tr. 992). Dr. McManus assessed right posterior tibial
tendonitis and encouraged supportive shoe wear. (Tr. 995).
In support of remand, Plaintiff argues that the ALJ erred in her evaluation of the medical
opinions. Specifically, Plaintiff asserts that the ALJ committed reversible error by failing to
provide a sufficient explanation as to why she favored the opinions of the non-examining state
agency consultants over the opinions of the consultative examining psychologist, the examining

physical therapist, and Plaintiff’s treating providers.
The ALJ found the assessment of the non-examining physician, Dr. Brill, to be “partially
persuasive,” but recognized greater limitations because Plaintiff had fractured his right ankle
since that September 2018 evaluation. (Tr. 27, 84-85). The ALJ found the opinion of the
physician on reconsideration, Dr. Eskonen, to be “more persuasive” because this non-examining
consultant “determined the claimant was capable of performing light exertion work with postural
restrictions identical to those of the [initial consultant’s assessment], but finding additional
environmental restrictions consistent with the claimant’s ankle fracture and inability to walk on

dangerous terrain.” (Tr. 27). The second physician completed his assessment in January 2019,
noting that Plaintiff’s gait was “expected to continue to improve and fracture is healing well. (Tr.
116). The ALJ offered an additional limitation with “the option to alternate sitting and standing in
12
consideration of the claimant’s continuing complaints of right ankle pain.” (Tr. 27).
Plaintiff notes that the ALJ clearly acknowledged additional impairment resulting in
additional limitation beyond that acknowledged by the non-examining physicians in light of her
limitation to provide for a sit/stand option. Plaintiff contends that there is new evidence in the

record that could evidence that his ankle problem is worsening. Dr. Row, Plaintiff’s primary care
physician, noted calf muscle atrophy in April 2019 (Tr. 915), apparently a result of Plaintiff’s
remaining non-weightbearing for so long. Dr. Row also noted slight swelling about the right
ankle in June 2019, showcasing continued objective findings of lower extremity impairment. (Tr.
932). The non-examining consultants did not have the benefit of the objective testing and
resultant findings collected over two days of examination in the FCE performed by PT
Winegardner in September 2019. (Tr. 943-52). Plaintiff argues that objective findings suggest a

continuation of ankle issues beyond those anticipated by the reconsideration consultant, who
expected gradual improvement.
In response, the Commissioner points out that the ALJ acknowledged that, unlike Dr.
Eskonen, Dr. Brill could not have considered Plaintiff’s ankle injury, and the ALJ discounted Dr.
Brill’s assessment accordingly. (Tr. 27). The Commissioner argues that the existence of
subsequent evidence does not necessarily render an opinion stale and therefore unreliable. See
Keys v. Berryhill, 679 F. App’x 477, 481 (7th Cir. 2017) (“If an ALJ were required to update the
record any time a claimant continued to receive treatment, a case might never end.”) (citing

Scheck v. Barnhart, 357 F.3d 697, 702 (7th Cir. 2004)). Rather, an opinion will be found stale if
the plaintiff can show that the subsequent evidence shows new impairments, or significant
worsening of existing impairments, that reasonably could have changed the opinion. See Moreno
13
v. Berryhill, 882 F.3d 722, 728 (7th Cir. 2018) (“An ALJ should not rely on an outdated
assessment if later evidence containing new, significant medical diagnoses reasonably could have
changed the reviewing physician’s opinion.”); Keys, 679 F. App’x at 481 (“It is true that Drs.
Brill and Sands did not review these later reports, but Keys has not provided any evidence that the

reports would have changed the doctors’ opinions.”).
The Commissioner argues that Plaintiff’s ankle injury does not call the assessments of
Drs. Brill or Eskonen into question. The Commissioner stresses that unless expected to result in
death, a disabling impairment must last or be expected to last at least 12 consecutive months.
Barnhart v. Walton, 535 U.S. 212, 214-15, 218-19 (2002); see 42 U.S.C. §§ 423(d)(1)(A),
1382c(a)(3)(A). Thus, unless significant limitations of Plaintiff’s ankle injury persisted through at
least November 2019, the opinions are not stale. The record shows that Plaintiff fractured his

ankle on November 7, 2018, and he underwent an open-reduction internal fixation surgery on
November 8, 2018. (Tr. 826, 849-50). Subsequent x-rays showed good positioning of the
hardware and appropriate healing. (See, e.g., Tr. 907, 919, 922). Although Plaintiff was initially
confined to two crutches, by April 6, 2019, he was nearly fully weightbearing on one crutch. (Tr.
914). At the June 26, 2019 orthopedist visit, Plaintiff reported a pain level of 2 to 3, stating that
he experienced significant improvement. (Tr. 999). Plaintiff’s ankle was unremarkable except for
minimal swelling and minimal tenderness, and there was no indication that he was using an
assistive device. (See Tr. 1000). However, the orthopedist discussed possible hardware removal

due to Plaintiff’s complaints of pain inside his ankle. (Tr. 1000). When Plaintiff saw a podiatrist
on October 1, 2019, to request a boot or shoe to lessen pain with ambulation (see Tr. 996), he
complained of pain at a level of 1, with activity, and he was not on narcotic pain medication. (Tr.
14
992). He denied having weakness, poor balance, or decreased motion. (Tr. 992). Although the
ankle was tender, slightly swollen, and exhibited severely limited inversion and slight loss of
strength on inversion, the ankle was otherwise unremarkable. (Tr. 993-94). There was also no
indication that Plaintiff was using any assistive devices. (See Tr. 992-95). The podiatrist told

Plaintiff to make sure to wear supportive shoes and gave him a prescription for physical therapy.
(Tr. 995). Also, Plaintiff apparently did not use any assistive devices at the October 2019 visits
with Dr. Row or with NP Barchus. (See Tr. 1035-38, 1040-47). Dr. Row opined on October 22,
2019, that Plaintiff would not need any assistive device for ambulation. (Tr. 988). Thus, the
record shows that Plaintiff recovered from his surgery within 12 months and, while he had
residual pain, such pain was reportedly low, and he did not appear to require continuing use of
assistive devices for ambulation. Plaintiff’s residual ankle symptoms do not appear to

significantly affect his ability to perform standing, walking, and other activities consistent with
the assessments of Dr. Brill and Dr. Eskonen.
Plaintiff cites an April 2019 finding by Dr. Row of calf muscle atrophy due to a long
period of being non-weightbearing. (Tr. 915). However, this finding was not repeated in Dr.
Row’s later examinations (see Tr. 932, 1036), and the doctor did not appear to be overly
concerned about Plaintiff’s muscle weakness (see Tr. 931, 933, 1035, 1038). Moreover, the
orthopedist did not note any calf muscle weakness during the June 2019 examination (see Tr.
1000), and, similarly, neither did the podiatrist in October 2019, who found normal motor

strength in the right foot and ankle, except with inversion (see Tr. 993-94). Plaintiff cites Dr.
Row’s June 2019 finding of slight ankle swelling, but Plaintiff does not explain why this
extremely mild abnormality would refute the state agency medical consultants’ assessments.
15
Plaintiff cites to PT Winegardner’s FCE from September 2019 but does not explain how this
examination contradicted the assessments. Accordingly, substantial evidence supports the ALJ’s
evaluation of the assessments of Dr. Brill and Dr. Eskonen.
Plaintiff also objects to the ALJ’s analysis of two examining source opinions. The first

opinion was considered by the non-examining consultants. This was the opinion of the
psychological consultative examiner, Leslie Predina, from September 2018. (Tr. 791). Dr. Predina
interpreted the mental status exam findings to indicate that Plaintiff “appears to have the
cognitive ability to perform comparable jobs to that which he has performed in the past,”
although his “ability to sustain his concentration and persistence appeared to be impaired. He
would likely have some problems being able to concentrate and persist on his job
responsibilities.” (Tr. 794). The nonexamining consultants thus found moderate limitations to

maintaining attention and concentration for extended periods and wrote, “The evidence suggests
that claimant can understand, remember, and carry out detailed, but not complex tasks. The
claimant can relate on a superficial and ongoing basis with co-workers and supervisors. The
claimant can attend to tasks for a sufficient period to complete tasks. The claimant can manage
the stresses involved with detailed work-related tasks." (Tr. 85-87, 118). The ALJ discussed these
psychological opinions in her step three analysis, finding Dr. Predina’s opinion to be “mostly
persuasive.” (Tr. 20). However, the ALJ also found the limitation to concentration to be “rather
vague”, yet assessed “a restriction for remaining on task in two-hour increments...”. Id. The ALJ

also rejected a limit to “superficial” interactions found by the nonexamining consultants in part
because she determined that it was vocationally undefined. Id.
The Commissioner acknowledges that the ALJ found Dr. Predina’s assessment to be
16
“mostly persuasive.” (Tr. 21). The ALJ acknowledged that Dr. Predina gave supportive comments
and provided the only complete mental health examination in the record, which was thorough.
(Tr. 20-21, 794); 20 C.F.R. § 404.1520c(c)(1). The ALJ found that Dr. Predina’s findings and
specific opinions were mostly consistent with the record. (Tr. 20-21); 20 C.F.R. § 404.1520c

(c)(2). The ALJ indicated specifically that Dr. Predina’s assessments regarding cognitive ability
were persuasive. (Tr. 20). As noted, to account for the assessment that Plaintiff would likely have
some problems with concentration and persistence, the ALJ added an RFC restriction to two-hour
periods of remaining on task. (Tr. 20). The ALJ found the assessment regarding social
functioning to be internally inconsistent given the diagnosis of social anxiety disorder, but
nevertheless she agreed that Plaintiff would likely get along with supervisors and coworkers. (Tr.
20). The ALJ finally noted Dr. Predina’s specialization and program knowledge. (Tr. 20); 20

C.F.R. § 404.1520c(c)(4), (5).
The Commissioner argues that the ALJ properly considered the regulatory factors,
articulating her findings with respect to supportability and consistency. The Commissioner notes
that, contrary to Plaintiff’s assertion, the ALJ did not compare this opinion to the state agency
psychological consultants’ assessments (or even refer to such assessments) at all in her evaluation
of Dr. Predina’s opinion. (Tr. 20-21).
Plaintiff argues that the ALJ should have re-contacted Dr. Predina if she felt that the
doctor’s opinion was vague. However the duty to re-contact only applies where the evidence is

insufficient to reach a decision. Skarbek, 390 F.3d at 504; see 20 C.F.R. § 404.1520b(b).
Plaintiff’s citation to Barnett v. Barnhart is inapposite because that case was decided prior to the
enactment of 20 C.F.R. § 404.1520b (effective Mar. 27, 2017), which clarified that re-contacting
17
a medical source is not mandatory. Accordingly, substantial evidence supports the ALJ’s analysis
of Dr. Predina’s opinion.
The second examining source opinion was the FCE provided by physical therapist Jason
Winegardner over two days in September 2019. (Tr. 943). Plaintiff contends that the ALJ’s

analysis of this opinion is flawed because she stated that a physical therapist is “not an acceptable
source” when crafting an FCE. (Tr. 25). Plaintiff also object that the ALJ stated that a physical
therapist was a “non-medical source”.
In evaluating PT Winegardner’s assessment, the ALJ noted that PT Winegardner gave
supportive comments but stated that they appeared to be based largely on Plaintiff’s subjective
complaints, which the ALJ found not to be particularly credible. See Tr. 26; 20 C.F.R. §
404.1520c (c)(1). For instance, the ALJ noted that Plaintiff incorrectly told PT Winegardner that

he was only “allowed” to wean off two crutches in August 2019 (Tr. 25, 944); by contrast, the
record showed use of one crutch as of April 2019 (Tr. 914). The ALJ also found that the overall
medical evidence was not consistent with the FCE findings and assessment, noting the lack of
upper extremity abnormalities in treatment notes (Tr. 787, 915, 1000) and the well-healed ankle
injury (Tr. 1000). Tr. 26; see 20 C.F.R. § 404.1520c(c)(2). The ALJ also considered that the
opinion was based on two visits, that PT Winegardner was a specialist, and that the provider did
not have knowledge of the Social Security disability program. Tr. 26; 20 C.F.R. §
404.1520c(c)(3) – (5).

Plaintiff has not demonstrated that the evidence of record required the ALJ to find this
opinion any more persuasive. With respect to Plaintiff’s argument that the ALJ improperly found
PT Winegardner not to be an acceptable medical source or a medical source at all, the
18
Commissioner points out that the ALJ only relied on these assertions to conclude that she was not
obligated to evaluate the persuasiveness of PT Winegardner’s opinion under the regulations. (Tr.
25). Any error in this reasoning would be harmless because the ALJ in fact evaluated the
persuasiveness of the opinion. (Tr. 25-26); Karr, 989 F.3d at 513.

In any event, even if the ALJ misinterpreted PT Winegardner’s statements regarding
Plaintiff’s pain reports and their consistency with the objective findings, this would be harmless.
The ALJ noted when discussing the FCE report that the provider found that Plaintiff’s pain
ratings on the second day of testing did not contradict the objective test findings, despite being
“unusually higher than normal,” especially in the left knee, with no documented impairment. (Tr.
25). This purported inconsistency is relevant to the supportability factor because it is probative of
the quality of PT Winegardner’s explanation for his findings. See 20 C.F.R. § 404.1520c(c)(1).

However, when discussing supportability, the ALJ focused on the provider’s degree of reliance on
subjective complaints. Tr. 26; see Shickel v. Colvin, No. 14 C 5763, 2015 WL 8481964, at *11
(N.D. Ill. Dec. 10, 2015) (noting that issue of reliance on subjective complaints relevant to
supportability factor); see also Bates v. Colvin, 736 F.3d 1093, 1100 (7th Cir. 2013) (stating that
opinions may be discounted for relying on subjective complaints that are not credible). It
therefore appears that this purported internal inconsistency did not significantly affect the ALJ’s
weighing of the appropriate factors, and Plaintiff has not shown otherwise.
Plaintiff’s other objections relate to the ALJ’s treatment of secondary factors, which the

ALJ did not even have to discuss. 20 C.F.R. § 404.1520c(b)(2). The ALJ’s citation to PT
Winegardner’s degree of reliance on less-than-credible subjective complaints and the
inconsistency of the opinion with the evidence of record provided sufficient reason for the ALJ to
19
reject the opinion. See Tr. 25-26; 20 C.F.R. § 404.1520c(b)(2) (noting supportability and
consistency are most important factors). Accordingly, substantial evidence supports the ALJ’s
rejection of PT Winegardner’s opinion.
Next, Plaintiff asserts that the ALJ erred by dismissing the opinion of treating physician

Dr. Row as “highly inconsistent with the record overall” (Tr.26). The ALJ gave less credit to the
opinion in part because Dr. Row “does not have orthopedic specialization” and in part because he
“gave no supporting comments for his findings and instead cited his examination notes, which
contrast his opinion as noted.” (Tr. 26-27).
The ALJ stated that the contemporaneous physical examination from October 8, 2019, did
not support Dr. Row’s opinion. (Tr. 26) (citing Tr. 1036). For example, the examination indicated
that Plaintiff had normal strength, sensation, and reflexes in his extremities, which would not

support Dr. Row’s significant manipulative restrictions (see Tr. 989, 1036). The ALJ found Dr.
Row’s exhortation that Plaintiff exercise to lose weight to be inconsistent with the opinion
restricting him from more than “very little” standing and walking. (Tr. 26, 988). The ALJ also
cited previous examinations, which she also found inconsistent with the opinion. Tr. 26; see, e.g.,
Tr. 702-03 (normal examination except for mild abdominal tenderness), 915 (unremarkable
examination except for calf muscle atrophy), 932 (unremarkable examination except for slight
ankle swelling and right lower extremity tenderness). The ALJ also found the opinion to be
inconsistent with the orthopedic and podiatry records. Tr. 26; see 20 C.F.R. § 404.1520c(c)(2).

The ALJ found the relatively normal examination findings and Plaintiff’s reports of pain in those
notes not to be consistent with the degree of limitation Dr. Row assessed. Tr. 26 (citing Tr.
993-95, 1000). Finally, the ALJ noted Dr. Row’s treatment relationship and lack of orthopedic
20
specialty. Tr. 26-27; see 20 C.F.R. § 404.1520c(c)(3), (4) (specialization).
As the Commissioner points out, contrary to Plaintiff’s contention, the ALJ did not need
to go into greater detail to explain why she found the opinion inconsistent with the evidence of
record. The Seventh Circuit “require[s] only that the ALJ minimally articulate h[er] reasoning.”

Filus v. Astrue, 694 F.3d 863, 869 (7th Cir. 2012) (internal quotation marks omitted); see Michael
K. v. Saul, No. 20 C 2944, 2021 WL 1546426, at *5 (N.D. Ill. Apr. 20, 2021) (noting principle in
case governed by § 404.1520c). The ALJ’s articulation need only “be specific enough to enable
the claimant and a reviewing body to understand the reasoning.” Craft v. Astrue, 539 F.3d 668,
678 (7th Cir. 2008). The ALJ sufficiently stated that she found the opinion to be inconsistent with
the record evidence, and she cited the evidence to which she was referring—namely findings and
reports contained in the notes of Dr. Row, the orthopedist, and the podiatrist (see Tr. 26).

The ALJ also properly cited the lack of orthopedic specialty on the part of Dr. Row. See
Tr. 27; 20 C.F.R. § 404.1520c(c)(4). Given the significance of Plaintiff’s spinal impairments and
ankle fracture, it is certainly relevant, as a secondary consideration, that Dr. Row was not a
specialist in orthopedics. See Tr. 18, 22-27; 20 C.F.R. § 404.1520c(b)(2), (c)(4) (“The medical
opinion . . . of a medical source who has received advanced education and training to become a
specialist may be more persuasive about medical issues related to his or her area of specialty than
[that of a non-specialist].”).
Also, the ALJ had no duty to re-contact Dr. Row. Contrary to Plaintiff’s assertion, the

ALJ was not uncertain about how the evidence Dr. Row cited could support his opinion—the ALJ
simply, and properly, determined that the evidence of record did not support the opinion. (Tr.
26-27). In any event, “[a]n ALJ need recontact medical sources only when the evidence received
21
is inadequate to determine whether the claimant is disabled.” Skarbek v. Barnhart, 390 F.3d 500,
504 (7th Cir. 2004); see 20 C.F.R. § 404.1520b(b) (indicating that re-contacting treating source is
one of multiple actions adjudicator may take when decision cannot be made due to insufficiency
of record evidence). Here, the evidence was adequate to decide the question of disability.

Accordingly, substantial evidence supports the ALJ’s rejection of Dr. Row’s opinion.
Plaintiff next objects to the ALJ’s assessment of the statement of NP Barchus. Plaintiff
contends that the ALJ did not see the opinion of NP Barchus that Plaintiff would be capable of
only low-stress jobs and would frequently experience pain or other symptoms severe enough to
interfere with the attention and concentration needed to perform even simple work tasks. (Tr.
938). Plaintiff argues that the ALJ did not provide any evaluation of whether such opinions were
consistent with or supported by the record.

However, the ALJ properly declined to evaluate NP Barchus’s assessment as a medical
opinion. On July 11, 2019, NP Barchus completed a checkbox questionnaire on which he gave no
specific functional limitations (Tr. 938-41) but indicated that Plaintiff’s orthopedic issues may
limit him (Tr. 937), that his symptoms would frequently interfere with attention and concentration
to perform even simple tasks, and that he was only capable of “low stress jobs” (Tr. 938). The
ALJ determined that NP Barchus did not give any opinion appropriate for evaluation. (Tr. 26).
Contrary to Plaintiff’s contention, the ALJ did not have to evaluate NP Barchus’s
assertions that Plaintiff’s symptoms would frequently interfere with attention and concentration to

perform even simple tasks, and that he was only capable of “low stress jobs.” The applicable
regulations narrowly define “medical opinion” as “a statement from a medical source about what
[a claimant] can still do despite [his] impairment(s) and whether [he] ha[s] one or more
22
impairment-related limitations or restrictions” in various basic work activities, such as standing,
walking, lifting, carrying, performing postural activities, seeing, understanding, remembering,
maintaining pace, and adapting to environmental conditions. 20 C.F.R. § 404.1513(a)(2). By
contrast, “judgments about the nature and severity of [a claimant’s] impairments” are excluded

from the definition of “medical opinion” but included as “[o]ther medical evidence.” See id. §
404.1513(a)(2), (3). Moreover, statements regarding issues reserved to the Commissioner, such as
whether a claimant can work, are considered “neither valuable nor persuasive” and do not need to
be discussed. 20 C.F.R. § 404.1520b(c), (c)(3); see Nicholas M. v. Saul, Case No. 19-2224, 2021
WL 753558, at *3 (C.D. Ill. Jan. 19, 2021).
Here, the opinions Plaintiff asserts that the ALJ should have considered do not relate to
Plaintiff’s ability to perform specific basic work activities, but rather reflect judgments about the

nature and severity of his impairments and his ability to work generally. Thus, the ALJ did not
have to evaluate them as they are not “medical opinions”. The ALJ reasonably found Plaintiff
capable of performing unskilled, simple, routine tasks and maintaining concentration for
two-hour periods. Thus, there is no basis for remand on this issue.
Next, Plaintiff argues that the ALJ failed to appropriately account for Plaintiff’s moderate
limitations in concentration, persistence, and pace (CPP) in both the RFC and the Step Five
hypothetical questions to the VE. The ALJ provided mental limitations in the RFC to “perform
work that can be learned in 30 days, or less, with simple routine tasks. He is able to remain on

task in two-hour increments.” (Tr. 22). The RFC describes the most a claimant can do despite his
limitations. 20 C.F.R. § 404.1545; Social Security Ruling 96-8p, 1996 WL 374184, at *2 (July 2,
1996). It is the ALJ’s prerogative to formulate the RFC based on the medical and non-medical
23
evidence as a whole. See 20 C.F.R. §§ 404.1545(a)(1), (3), 404.1546(c); Diaz v. Chater, 55 F.3d
300, 306 n.2 (7th Cir. 1995). The ALJ is tasked with weighing evidence, resolving conflicts in the
record, and deciding issues of credibility, and the court will not substitute its own judgment as
long as the ALJ’s findings are supported by substantial evidence. See Young v. Barnhart, 362

F.3d 995, 1001 (7th Cir. 2004). Moreover, “[t]he ALJ [need] only . . . include limitations in [the]
RFC determination that [are] supported by the medical evidence and that the ALJ [finds] to be
credible.” Outlaw v. Astrue, 412 F. App’x 894, 898 (7th Cir. 2011) (citing Simila v. Astrue, 573
F.3d 503, 520-21 (7th Cir. 2009)).
Here, the ALJ found that Plaintiff, despite his moderate difficulties with CPP, could
remain on task for two-hour increments while performing work that can be learned in 30 days or
less and involving simple, routine tasks. (Tr. 22). Substantial evidence supports this finding. At

the hearing, Plaintiff denied any recent mental health treatment, including medication use. (Tr.
53). Examinations throughout the record from multiple providers generally do not show any
deficits of alertness, orientation, attention, or concentration. See, e.g., Tr. 541, 557-58, 634, 787,
907, 915, 993-95, 1000, 1036, 1042. When he saw Dr. Predina, Plaintiff reported being able to
complete self-care tasks, complete household chores, spend time watching television, read and
understand a newspaper, count money, organize bills, pay bills on time, and balance a checking
account. (Tr. 792). Additionally, Dr. Predina’s observation was that Plaintiff “appeared” to have
impairments in concentration and persistence (Tr. 792), and she merely opined that he would

“likely have some problems” concentrating and persisting on job tasks (Tr. 794). Finally, the state
agency psychological consultants found that Plaintiff could perform detailed tasks and that he
could “attend to tasks for a sufficient period to complete tasks.” (Tr. 87, 118).
24
Plaintiff cites no evidence that would compel a reasonable factfinder to conclude that
Plaintiff could not sustain concentration for two-hour periods consistent with the RFC. In any
event, Plaintiff has not even asserted what limitations he believes would have properly accounted
for his moderate limitation, so any error here would be harmless. See Jozefyk v. Berryhill, 923

F.3d 492, 498 (7th Cir. 2019) (finding any error harmless because plaintiff did not assert any
appropriate RFC restrictions to properly account for moderate limitations and medical records did
not support any such restrictions). Therefore, remand is not warranted.
Conclusion
On the basis of the foregoing, the Decision of the Commissioner is hereby AFFIRMED.

Entered: December 3, 2021.

s/ William C. Lee
William C. Lee, Judge
United States District Court

25

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10161805. Public record. Not legal advice.