concluding “that the ALJ’s credibility determination was adequately supported by evidence in the record’ even though the ‘credibility determination was not without fault”
How later courts described this case
- concluding “that the ALJ’s credibility determination was adequately supported by evidence in the record’ even though the ‘credibility determination was not without fault”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
MISTY S. o/b/o SHARI M. deceased,1, )
)
Plaintiff, )
)
v. ) CIVIL NO. 3:21cv729
)
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. Section 405(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
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
1 For privacy purposes, Plaintiff’s full name will not be used in this Order.
The Claimant, Shari M., passed away on March 16, 2020. Her daughter, Misty S., substituted into
the case on December 29, 2020. (Tr. 878).
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 a hearing, the Administrative Law Judge ("ALJ") made the
following findings:
1. The claimant last met the insured status requirements of the Social Security Act on
March 31, 2017.
2. The claimant did not engage in substantial gainful activity during the period from
her alleged onset date of December 18, 2015 through her date last insured of March
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31, 2017 (20 CFR 404.1571 et seq.).
3. Through the date last insured, the claimant had the following severe impairments:
chronic obstructive pulmonary disease (COPD); bilateral carpal tunnel syndrome
bilateral cubital tunnel syndrome of the elbows; obesity; anxiety disorder;
persistent depressive disorder; major depressive disorder (20 CFR 404.1520(c)).
4. Through the date last insured, the claimant did not have an impairment or
combination of impairments that met or medically equaled the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that, through
the date last insured, the claimant had the residual functional capacity to perform
light work as defined in 20 CFR 404.1567(b) except the claimant could never
climb ladders, ropes, or scaffolds, but could conduct all other postural activities
occasionally; the claimant was limited to frequent reaching, handling, fingering, and
feeling with the bilateral upper extremities; the claimant needed to avoid
concentrated exposure to sunlight, vibration, temp extremes, high humidity, fumes,
odors, dusts, gases, and poor ventilation; the claimant needed to avoid concentrated
exposure to workplace hazards such as dangerous moving machinery and
unprotected heights); the claimant was unable to operate a motorized vehicle as
part of her job duties; the claimant could understand, remember, carry out
instructions, and exercise judgment, to perform simple tasks; the claimant was
capable of routine and repetitive work, performing essentially the same tasks in the
same place every day; the claimant needed to avoid all assembly line-paced work
or work with strict hourly production quotas; the claimant was capable of
occasional interaction with the public, but nothing more involved than answering a
discrete question, such as location of an item in a store or a room in a hotel; the
claimant was limited to occasional interaction with coworkers and supervisors,
with no tandem work or team tasks.
6. Through the date last insured, the claimant was unable to perform any past relevant
work (20 CFR 404.1565).
7. The claimant was born on August 7, 1962 and was 54 years old, which is defined
as an individual closely approaching advanced age, on the date last insured (20
CFR 404.1563).
8. The claimant had at least a high school education (20 CFR 404.1564).
9. Transferability of job skills is not an issue in this case because the claimant’s past
relevant work was unskilled (20 CFR 404.1568).
10. Through the date last insured, considering the claimant’s age, education, work
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experience, and residual functional capacity, there were jobs that existed in
significant numbers in the national economy that the claimant could have performed
(20 CFR 404.1569 and 404.1569(a)).
11. The claimant was not under a disability, as defined in the Social Security Act, at
any time from December 18, 2015, the alleged onset date, through March 31, 2017,
the date last insured (20 CFR 404.1520(g)).
(Tr. 659-670).
Based upon these findings, the ALJ determined that Plaintiff was not entitled to benefits,
leading to the present appeal.
Plaintiff filed her opening brief on March 14, 2022. On June 21, 2022 the defendant filed a
memorandum in support of the Commissioner’s decision. Plaintiff has declined to file a reply.
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
n.2 (7th Cir. 1985); accord Halvorsen v. Heckler, 743 F.2d 1221 (7th Cir. 1984). In the present
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case, Step 5 was the determinative inquiry.
In support of remand, Plaintiff argues that the ALJ erred in not incorporating the limiting
effects of all of her impairments, and in not considering the combined impact of all of her
impairments. Specifically, Plaintiff contends that she had migraine headaches whose frequency and
intensity were disabling.
It is Plaintiff’s burden to establish that she had medical problems resulting in disabling,
work-related functional limitations. Castile v. Astrue, 617 F.3d 923, 927 (7th Cir. 2010). It is the
ALJ’s province to resolve conflicts and ambiguities in the evidence. Ehrhart v. Sec’y of Health
and Human Servs., 969 F.2d 534, 541 (7th Cir. 1992).
Here, the ALJ addressed Plaintiff’s allegations of disabling migraines (Tr. 665-66). The
ALJ found that Plaintiff had not established any functional limitations from migraines (Tr. 666
(“while considered herein, the claimant’s headaches fail to necessitate specific limitation”)). The
ALJ noted the lack of medical evidence developing the existence, treatment, and limiting effects
of migraines. (Tr. 665-66).
Plaintiff has failed to produce medical opinion evidence of greater functional
limitations than found by the ALJ. Thus, Plaintiff has failed to meet her burden. Gedatus v. Saul,
994 F.3d 893, 904 (7th Cir. 2021); Rice v. Barnhart, 384 F.3d 363, 370 (7th Cir. 2004).
Plaintiff asserts that her migraine symptoms were so intense and frequent as to be
disabling. She relies on her statements describing her migraines. Plaintiff’s assertions are
unavailing because the ALJ considered Plaintiff’s allegations of subjectively disabling symptoms
and found that they were not so extreme as to be disabling (Tr. 663).
Symptoms are a claimant’s subjective descriptions of her impairments. See 20 C.F.R. §
404.1502(n). Once the claimant establishes the existence of an impairment that could reasonably
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be expected to produce the alleged symptoms, then the intensity and persistence of the symptoms
are evaluated. 20 C.F.R. § 404.1529(c)(1). The ALJ’s credibility finding on this point should
not be disturbed if it is supported by specific reasons and is not “patently wrong.” Deborah M. v.
Saul, 994 F.3d 785, 789 (7th Cir. 2021). “Patently wrong” is a high threshold—“only when the
ALJ’s determination lacks any explanation or support … will [we] declare it to be patently
wrong and deserving of reversal.” Elder v. Astrue, 529 F.3d 408, 413-14 (7th Cir. 2008) (internal
citations omitted); Weber v. Kijakazi, No. 20-2990, 2021 WL 3671235 (7th Cir. Aug. 19, 2021)
(quoting Elder). The ALJ’s credibility finding need not be perfect, just adequately supported.
McKinzey v. Astrue, 641 F.3d 884, 890-91 (7th Cir. 2011)(concluding “that the ALJ’s credibility
determination was adequately supported by evidence in the record’ even though the ‘credibility
determination was not without fault”).
Here, the ALJ explained the reasons for his findings. These reasons generally concerned
the lack of record medical evidence of the allegedly disabling migraines. For example, the ALJ
observed the lack of objective medical evidence to support Plaintiff’s allegations. The ALJ
noted, as examples, the lack of abnormal cranial nerves, balance issues, or motor/sensory
abnormalities (Tr. 665), reflecting the concerns expressed at Social Security Ruling (“SSR”) 19-4p
(“Evaluating Cases Involving Primary Headache Disorders”). The lack of objective medical
evidence was a valid consideration. See 20 C.F.R. § 404.1529(c)(2) (“We must always attempt to
obtain objective medical evidence and, when it is obtained, we will consider it in reaching a
conclusion as to whether you are disabled”).
The ALJ also observed the level of treatment that Plaintiff received for her migraines
during the relevant period (Tr. 665). The ALJ noted that there was very little discussion of
Plaintiff’s migraines in the medical records (Tr. 665 (“very little development”)). Plaintiff had
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not been hospitalized for migraines and had not been referred to a neurologist during the relevant
period (Tr. 665). In multiple examinations, Plaintiff did not complain of migraines when
describing her problems (see, e.g., Tr. 598-99, 569-70, 1007). This was in contrast to after the
relevant period, when Plaintiff complained of worsening migraines (see, e.g., Tr. 1000, 1067
(“complains prominently about migraines”)), when Plaintiff’s medication regimen was modified
(Tr. 1000), and when Plaintiff was referred to a neurologist (Tr. 1062, 1058). The level of
treatment was a valid consideration. See 20 C.F.R. § 404.1529(c)(3) (stating that medications,
other treatment, and other measures used to address symptoms are considered).
Further, the ALJ discussed and relied upon the medical opinion evidence, which did not
mention any migraine-related functional limitations (Tr. 668). The medical opinion evidence
was also a valid consideration. See 20 C.F.R. § 404.1529(c)(1) (“We also consider the medical
opinions”).
Plaintiff argues that a neurologist was unnecessary for diagnosis, but the point is that
Plaintiff was not referred to a neurologist during the relevant period, unlike later, when she
complained of worsening headaches and was referred to a neurologist.
Plaintiff also objects to the ALJ’s reference to “objective symptomatology… (such as
abnormal cranial nerves, balance issues, or motor/sensory abnormality)”. However, the ALJ’s
specific concerns reflected the objective bases for migraines, per SSR 19-4p, which describes
migraine pain as “caused by the activation of nerve fibers” and migraine “auras” as involving,
inter alia, “sensory” and/or “motor” problems.
Plaintiff also relies on medical texts, regarding migraines, to argue that she was disabled.
But such reference materials are not personal to Plaintiff and are not evidence of her medical
condition. Nor does the reliance on medical texts make Plaintiff and her representatives qualified
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to diagnose Plaintiff or to render medical opinions about her functional limitations.
Clearly, Plaintiff has not shown that the ALJ improperly considered Plaintiff’s allegations
of subjectively disabling migraines, and Plaintiff has not shown the ALJ’s credibility finding
to be patently wrong. Nor has Plaintiff shown, via medical opinion evidence, that she had
greater functional limitations than found by the ALJ due to her migraines. Thus, Plaintiff has
failed to establish that she had disabling migraine-related functional limitations, and there is no
basis on which to remand the decision.
Conclusion
On the basis of the foregoing, the Decision of the Commissioner is hereby AFFIRMED.
Entered: August 22, 2022.
s/ William C. Lee
William C. Lee, Judge
United States District Court
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