CHRISTOFFERSON v. SAUL

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

LORA C.,1 )

)

Plaintiff, )

)

v. ) No. 1:19-cv-04665-JMS-TAB

)

ANDREW M. SAUL, Commissioner of the Social )

Security Administration, )

)

Defendant. )

ENTRY REVIEWING THE COMMISSIONER'S DECISION

In May 2016, Lora C. protectively filed for disability insurance benefits ("DIB") and

supplemental security income ("SSI") from the Social Security Administration ("SSA"), alleging

a disability onset date of April 5, 2016. [Filing No. 8-5 at 2-17.] Her applications were denied

initially on July 12, 2016 and upon reconsideration on January 13, 2017. [Filing No. 8-3; Filing

No. 8-4 at 2-6; Filing No. 8-4 at 10-12.] A hearing was held before Administrative Law Judge

("ALJ") Belinda J. Brown on October 30, 2018. [Filing No. 8-2 at 41-71.] The ALJ issued a

decision on November 26, 2018, concluding that Lora C. was not entitled to benefits. [Filing

No. 8-2 at 11-21.] The Appeals Council denied review on October 1, 2019. [Filing No. 8-2 at 2-

4.] On November 25, 2019, Lora C. timely filed this civil action asking the Court to review the

denial of benefits according to 42 U.S.C. § 405(g). [Filing No. 1.]

1 To protect the privacy interests of claimants for Social Security benefits, consistent with the

recommendation of the Court Administration and Case Management Committee of the

Administrative Office of the United States courts, the Southern District of Indiana has opted to

use only the first name and last initial of non-governmental parties in its Social Security judicial

review opinions. Furthermore, although the record reflects that Lora C. has previously used

different last names, the last initial "C." will be used in this Entry, consistent with the name used

by the parties in this matter.

I.

STANDARD OF REVIEW

"The Social Security Act authorizes payment of disability insurance benefits . . . to

individuals with disabilities." Barnhart v. Walton, 535 U.S. 212, 214 (2002). "The statutory

definition of 'disability' has two parts. First, it requires a certain kind of inability, namely, an

inability to engage in any substantial gainful activity. Second, it requires an impairment, namely,

a physical or mental impairment, which provides reason for the inability. The statute adds that

the impairment must be one that has lasted or can be expected to last . . . not less than 12

months." Id. at 217.

When an applicant appeals an adverse benefits decision, this Court's role is limited to

ensuring that the ALJ applied the correct legal standards and that substantial evidence supports

the ALJ's decision. Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004) (citation omitted).

For the purpose of judicial review, "[s]ubstantial evidence is such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion." Id. (quotation omitted).

The ALJ must apply the five-step inquiry set forth in 20 C.F.R. § 404.1520(a)(4)(i)-(v),

evaluating the following, in sequence:

(1) whether the claimant is currently [un]employed; (2) whether the claimant has

a severe impairment; (3) whether the claimant's impairment meets or equals one

of the impairments listed by the [Commissioner]; (4) whether the claimant can

perform her past work; and (5) whether the claimant is capable of performing

work in the national economy.

Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000) (citations omitted) (alterations in original).2

"If a claimant satisfies steps one, two, and three, she will automatically be found disabled. If a

claimant satisfies steps one and two, but not three, then she must satisfy step four. Once step

2 The Code of Federal Regulations contains separate sections relating to DIB and SSI that are

identical in most respects relevant to this case. For the sake of simplicity, this Entry generally

contains citations to DIB sections only.

four is satisfied, the burden shifts to the [Commissioner] to establish that the claimant is capable

of performing work in the national economy." Knight v. Chater, 55 F.3d 309, 313 (7th Cir.

1995).

After Step Three, but before Step Four, the ALJ must determine a claimant's residual

functional capacity ("RFC") by evaluating "all limitations that arise from medically determinable

impairments, even those that are not severe." Villano v. Astrue, 556 F.3d 558, 563 (7th Cir.

2009). The ALJ uses the RFC at Step Four to determine whether the claimant can perform her

own past relevant work and if not, at Step Five to determine whether the claimant can perform

other work. See 20 C.F.R. § 404.1520(iv), (v). The burden of proof is on the claimant for Steps

One through Four; only at Step Five does the burden shift to the Commissioner. See Clifford,

227 F.3d at 868.

If the ALJ committed no legal error and substantial evidence exists to support the ALJ's

decision, the Court must affirm the denial of benefits. Barnett, 381 F.3d at 668. When an ALJ's

decision is not supported by substantial evidence, a remand for further proceedings is typically

the appropriate remedy. Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 355 (7th Cir. 2005).

However, courts have the statutory power to affirm, reverse, or modify the SSA's decision, with

or without remanding the case for further proceedings, and this power includes the ability to

remand the case with instructions for the Commissioner to calculate and award benefits to the

applicant. Allord v. Astrue, 631 F.3d 411, 415 (7th Cir. 2011) (citing 42 U.S.C. § 405(g)). "An

award of benefits is appropriate, however, only if all factual issues involved in the entitlement

determination have been resolved and the resulting record supports only one conclusion—that

the applicant qualifies for disability benefits." Id.

II.

BACKGROUND

Lora C. was 53 years of age on her alleged onset date. [See Filing No. 8-5 at 2.] In

connection with her applications for benefits and during her testimony before the ALJ, Lora C.

reported the following conditions: chronic lumbar spinal stenosis/sciatica, ureteropelvic junction

obstruction/hydronephrosis in the kidneys, chronic major depressive disorder, chronic attention

deficit disorder ("ADD"), attention deficit hyperactivity disorder ("ADHD"), anxiety, post-

traumatic stress disorder ("PTSD"), carpal tunnel syndrome, primary insomnia, chronic acute

costochondritis, chronic gastroesophageal reflux disease ("GERD"), chronic anemia, edema, and

vitamin D deficiency. [Filing No. 8-2 at 47-52; Filing No. 8-6 at 3.]3 Lora C. has an eleventh-

grade education and previously worked as a secretary. [Filing No. 8-2 at 45-46; Filing No. 8-6 at

4; Filing No. 8-6 at 16.]

The ALJ followed the five-step sequential evaluation set forth by the Social Security

Administration in 20 C.F.R. § 404.1520(a)(4) and ultimately concluded that Lora C. was not

disabled. [Filing No. 8-2 at 11-21] Specifically, the ALJ found as follows:

• Lora C. meets the insured status requirements of the Social Security Act

through June 30, 2022. [Filing No. 8-2 at 13.]

• At Step One, she had not engaged in substantial gainful activity4 since April

5, 2016, the alleged onset date. [Filing No. 8-2 at 14.]

• At Step Two, Lora C. had one severe impairment: "[d]egenerative changes of

the cervical and lumbar spine." [Filing No. 8-2 at 14.] Her obesity and

GERD constituted non-severe impairments, "as they have not individually, or

in combination with other impairments, caused more than minimal work-

3 The relevant evidence of record is amply set forth in the parties' briefs and need not be repeated

here. Specific facts relevant to the Court's disposition of this case are discussed below.

4 Substantial gainful activity is defined as work activity that is both substantial (i.e., involves

significant physical or mental activities) and gainful (i.e., work that is usually done for pay or

profit, whether or not a profit is realized). 20 C.F.R. § 404.1572(a).

related difficulties for a continuous period of at least 12 months." [Filing No.

8-2 at 14.] Lora C.'s mental impairments—depression, anxiety, and PTSD—

were deemed non-severe because they caused no more than mild limitation in

any of the four broad areas of mental functioning set out in the regulations.

[Filing No. 8-2 at 14-16 (citing 20 C.F.R., Part 404, Subpart P, Appendix 1).]

• At Step Three, she did not have an impairment or combination of impairments

that met or medically equaled the severity of one of the listed impairments.

[Filing No. 8-2 at 16.]

• After Step Three but before Step Four, Lora C. had the RFC "to perform

medium work as defined in 20 C.F.R. 404.1567(c) and 416.967(c) except: The

claimant can lift, carry, push, or pull up to fifty pounds occasionally and up to

twenty-five pounds frequently. She can occasionally climb ramps and stairs

as well as ladders, ropes, and scaffolds. She can occasionally balance, stoop,

kneel, crouch, or crawl." [Filing No. 8-2 at 16.]

• At Step Four, Lora C. was capable of performing her past relevant work as a

secretary, both as it was actually performed by her and as it is generally

performed. [Filing No. 8-2 at 20.]

III.

DISCUSSION

Lora C. raises three challenges to the ALJ's decision, arguing that: (1) the ALJ erred in

concluding at Step Two that her mental impairments of depression, anxiety, and PTSD are non-

severe, and further erred in failing to consider the limiting effects of those impairments

throughout the remainder of the disability analysis; (2) the ALJ failed to comply with Social

Security Ruling ("SSR") 16-3p in evaluating her subjective statements regarding her symptoms;

and (3) the ALJ's RFC determination did not account for all of the limitations supported by

medical evidence, and the hypothetical question posed to the vocational expert ("VE") was

therefore flawed and cannot support the ALJ's finding that she is not disabled. [Filing No. 10 at

4-5.] The Court will address each of these arguments in turn.

A. Whether the ALJ Erred at Step Two or Otherwise Failed to Adequately

Consider Lora C.'s Mental Impairments

Lora C. argues that the ALJ's determination that her mental impairments—depression,

anxiety, and PTSD—are non-severe is not supported by substantial evidence. [Filing No. 10 at

22.] She asserts that the ALJ did not properly consider hundreds of pages of mental health

treatment and therapy records and instead "only summarized a scant few" of the medical reports

in analyzing the Paragraph B criteria of the mental health listings. [Filing No. 10 at 23.]

Specifically, Lora C. points to treatment records from Dr. Bain, Lora C.'s family medicine

physician, and a therapist, Terry Anthony, arguing that these records were ignored without

explanation. [Filing No. 10 at 24-26.] Lora C. further argues that the ALJ's consideration of her

mental impairments was "severely cut short" because they were not mentioned at all after Step

Two, and remand is necessary "for full consideration of the evidence under the entire 5-step

process." [Filing No. 10 at 22-23.] She contends that the ALJ provided "absolutely no

discussion" as to how her mental impairments affect her ability to work, "nor how the assigned

RFC has taken them into consideration other than dismissing them as non-severe." [Filing No.

10 at 26.] Lora C. argues that the ALJ "failed to account for [her] severe depression, anxiety,

PTSD, and ADD in terms of the impact they have on her ability to work." [Filing No. 10 at 27.]

The Commissioner responds that, "[b]ecause the ALJ in this case proceeded through step

four of the sequential evaluation process, [Lora C.] cannot base any argument for reversible error

on the ALJ's failure to find her mental impairments severe at step two." [Filing No. 11 at 7.]

The Commissioner argues that, regardless, Lora C. does not point to any evidence showing that

her mental impairments are severe, the ALJ is not required to address every piece of evidence

presented, and substantial evidence supports the ALJ's analysis, including the results of the June

2016 consultative exam by Dr. Floyd Robison, the results of the October 2016 consultative

psychological examination by Dr. Paul Schneider, and the October 2016 findings by state agency

reviewing psychological consultant Dr. William Shipley. [Filing No. 11 at 7-9.] The

Commissioner argues that because Lora C. does not make any specific argument concerning the

ALJ's evaluation of these medical opinions, she has waived any challenge to the "great weight"

that the ALJ afforded them. [Filing No. 11 at 9-10.] The Commissioner contends that the ALJ

"clearly relied on medical source evidence" in concluding that Lora C.'s mental impairments

were not severe, and that Lora C. has not pointed to any medical source who found that her

mental impairments caused work-related limitations. [Filing No. 11 at 9-10.]

In reply, Lora C. asserts that the Commissioner's "post hoc justifications cannot make up

for the ALJ's failure to articulate, explain, or grapple with the evidence." [Filing No. 12 at 1.]

She argues that the ALJ's decision and the Commissioner's arguments were entirely based on the

findings of consultative examiners and record reviewing sources, which were made prior to her

intensive mental health treatment, and no expert was afforded the opportunity to opine on the

later psychiatric evidence. [Filing No. 12 at 2.] Lora C. contends that the ALJ was required to

consider all of the psychiatric evidence, even the treatment notes that were based on her own

account of her symptoms, and that the ALJ "ignored all of [her] personal and extensive mental

health treatment that occurred after those one-time examining and non-treating doctors gave their

opinions." [Filing No. 12 at 2.] Lora C. argues that, even though no medical source has found

that her mental impairments caused work-related limitations, the ALJ was still required to

consider those impairments, which the ALJ did not adequately do. [Filing No. 12 at 3-4.]

As long as the ALJ determines at Step Two that at least one severe impairment exists, the

ALJ will proceed to the remainder of the sequential analysis, which requires the ALJ to consider

all severe and non-severe impairments. Castile v. Astrue, 617 F.3d 923, 926-27 (7th Cir. 2010);

see also Denton v. Astrue, 596 F.3d 419, 423 (7th Cir. 2010) ("When determining a claimant's

RFC, the ALJ must consider the combination of all limitations on the ability to work, including

those that do not individually rise to the level of a severe impairment." (citations omitted)). In

other words, a determination of severity at Step Two is "merely a threshold requirement," and as

long as at least one severe impairment is present, the conclusion that other impairments are non-

severe "is of no consequence with respect to the outcome of the case." Castile, 617 F.3d at 927.

Here, the ALJ found that Lora C.'s depression, anxiety, and PTSD, when considered

singly and in combination, did not "cause more than minimal limitation in [her] ability to

perform basic mental work activities and are therefore nonsevere."5 [Filing No. 8-2 at 14.] In

doing so, the ALJ addressed the four Paragraph B criteria, relying on a June 2016 consultative

examination with Dr. Robison, the October 2016 consultative examination with Dr. Schneider,

and the function reports she completed with her applications. [Filing No. 8-2 at 15.] These cited

records included, among other things, notes indicating that Lora C. had mild difficulty with

maintaining concentration, persistence, and pace. [Filing No. 8-2 at 15.]

Dr. Robison's report noted that Lora C.'s thought form was unremarkable, her thought

content included morbid thoughts, worthless thoughts, helplessness, and hopelessness, and her

affect was blunted and tearful with good eye contact. [Filing No. 8-8 at 8-9.] Lora C. reported

the following symptoms: depressed mood, hopelessness, morbidity, difficulty concentrating,

easily distracted, hypervigilance, indecisiveness, problems falling asleep, problems remaining

asleep, frequent tearfulness, helplessness, worthlessness, forgetfulness, confusion or trouble

5 Although the ALJ did not specifically list ADD or ADHD as one of Lora C.'s mental

impairments, Lora C. does not explicitly argue that this omission constituted an error. [See

Filing No. 10 at 22-27.] Regardless, the ALJ considered medical records listing ADHD and

addressing related symptoms, noted later in the decision that Lora C. reported difficulties

resulting from ADHD, and addressed those difficulties in determining her RFC. Accordingly,

failure to include ADHD in the enumerated list of impairments was not fatal.

thinking clearly, unplanned weight changes, a high level of unfocused activity, and social

withdrawal. [Filing No. 8-8 at 10.] The report also summarized Lora C.'s reported daily

activities including house cleaning, making appointments, and paying bills, noting that she

reported poor pace of work and persistence relating to her performance of tasks in the home and

community. [Filing No. 8-8 at 15-18.] As reasons for poor pace and persistence, Lora C. cited

her physical limitations, poor memory, mood disturbances, and poor concentration. [Filing No.

8-8 at 18.] Dr. Robison listed the primary diagnosis of persistent depressive disorder and

secondary diagnoses of chronic PTSD and "Other Specified ADHD (Adult Residual Type)."

[Filing No. 8-8 at 20.] Notwithstanding these diagnoses, Dr. Robison opined that Lora C. was

fully capable in the following areas: following simple instructions, making simple decisions,

performing personal hygiene tasks at an age-appropriate quality level, performing community

tasks at an age-appropriate quality level, carrying out financial transactions unassisted, making

financial decisions, and setting up, organizing, and managing her day without assistance or

supervision. [Filing No. 8-8 at 20-22.] Dr. Robison opined that Lora C. was generally capable

in the following areas: following complex instructions, making complex decisions, performing

routine household tasks at an age-appropriate quality level, managing conflicts properly,

responding properly to supervisor feedback, and speaking and behaving in ways that do not

disrupt others. [Filing No. 8-8 at 21-22.] Dr. Robison also determined that Lora C. was less than

adequately competent in the area of forming and maintaining age-appropriate relationships.

[Filing No. 8-8 at 21.]

Dr. Schneider's report noted that Lora C.'s concentration "appeared mildly impaired," her

affect was "reasonably well modulated," and her mood was "mildly dysphoric." [Filing No. 8-8

at 44-45.] When asked about the main factor limiting her ability to work, Lora C. stated that she

could not focus at work, that she got written up for lack of focus, and that she had difficulty

remembering and following instructions. [Filing No. 8-8 at 45.] Dr. Schneider opined that Lora

C. met the diagnostic criteria for major depressive disorder and he "would term the current

severity mild." [Filing No. 8-8 at 45.]

The Court concludes that these reports constitute substantial evidence supporting the

ALJ's decision that Lora C.'s mental impairments were non-severe. Even if the ALJ had erred in

this determination, however, that would not be a sufficient basis for remand, given that the ALJ

continued past Step Two of the sequential analysis and considered Lora C.'s mental impairments

at later steps. See Castile, 617 F.3d at 927.

To the extent that Lora C. argues that the ALJ failed to consider her mental impairments

in determining her RFC, this argument is a misreading of the decision. The ALJ noted that the

RFC determination "reflects the degree of limitation" found with respect to the Paragraph B

criteria of the mental function analysis. [Filing No. 8-2 at 16.] In the RFC analysis, the ALJ

expressly referenced Lora C.'s mental impairments, including depression, anxiety, and ADHD,

and her asserted problems with focusing, concentrating, and being around a crowd of people.

[Filing No. 8-2 at 16.] The ALJ also gave great weight to the opinions of Dr. Robison and Dr.

Schneider, who considered Lora C.'s mental impairments. [Filing No. 8-2 at 20.]

Lora C. also asserts that the ALJ erred in failing to discuss certain medical evidence. "An

ALJ has the obligation to consider all relevant medical evidence and cannot simply cherry-pick

facts that support a finding of non-disability while ignoring evidence that points to a disability

finding. But an ALJ need not mention every piece of evidence, so long [as s]he builds a logical

bridge from the evidence to [her] conclusion." Denton, 596 F.3d at 425 (citations omitted).

Here, it is true that the ALJ did not summarize or discuss all of the records related to Lora C.'s

mental health treatment, but it is not true that this amounted to ignoring evidence that would

support a finding of disability. Rather, the records that were not discussed contained

substantially the same information as those upon which the ALJ relied.

Specifically, Lora C. points to: (1) an April 2016 visit with Dr. Bain, in which Lora C.

was treated for chronic major depressive disorder with ongoing trouble focusing and more

frequent crying, ADD, and insomnia, and during which she reported having trouble at work with

her ongoing difficulties with focus, [Filing No. 10 at 24 (citing Filing No. 8-7 at 33-35)]; (2) Dr.

Robison's consultative examination report, which noted diagnoses of persistent depressive

disorder, chronic PTSD, and ADHD, [Filing No. 10 at 24 (citing Filing No. 8-8 at 20)]; and

(3) Dr. Schneider's note that her concentration "appeared mildly impaired," [Filing No. 10 at 24

(citing Filing No. 8-8 at 44)]. In addition, Lora C. points to 2017 treatment records from her

visits with Ms. Anthony, who treated her for ADHD, depression, and anxiety, and noted that

Lora C. reported that she: fails to give close attention to details and makes careless mistakes in

work or other activities; does not seem to listen when spoken to directly; has difficulty

organizing tasks and activities; fails to follow through on instructions or finish schoolwork,

chores, or duties in the workplace; loses things; is easily distracted by extraneous stimuli; is often

forgetful; and avoids engaging in tasks that require sustained attention. [Filing No. 10 at 24

(citing Filing No. 8-11 at 3-4).] Lora C. also reported to Ms. Anthony that she had a history of

depression that waxed and waned but was overall worse than it had previously been, with

symptoms including depressed mood, insomnia, feelings of worthlessness and guilt, difficulty

concentrating, hopelessness, impaired memory, and panic attacks. [Filing No. 10 at 24 (citing

Filing No. 8-11 at 4).] In addition, Lora C. reported worsening anxiety with symptoms including

feeling tense and shaky or edgy, muscle tension, tiredness, difficulty resting or falling asleep,

irritability, worrying about small details of the day, anticipatory anxiety, time anxiety, worrying

about things out of her control, and worrying that someone will be harmed or that bad things will

happen. [Filing No. 10 at 24-25 (citing Filing No. 8-11 at 4).] Lora C. also reported PTSD

symptoms including nightmares, flashbacks, depressed mood, feelings of worthlessness or guilt,

hopelessness, impaired memory, panic attacks, insomnia, loss of energy, and fatigue. [Filing No.

10 at 25 (citing Filing No. 8-11 at 4).] Finally, Lora C. points to treatment records stating that:

she often presented with blunted, anxious, or tense affect; on one occasion she was noted to have

poor insight, judgment, and concentration; and her symptoms sometimes stabilized but

sometimes worsened. [Filing No. 10 at 25.]

While a more complete analysis could have outlined all of the medical records, including

those to which Lora C. points, the ALJ was not required to address every piece of evidence in the

record. Notably, while Lora C. points to Dr. Robison's and Dr. Schneider's opinions, both of

those opinions were explicitly discussed in the ALJ's decision. As to the records that were not

discussed in the ALJ's decision, Lora C. does not explain how her cited evidence undermines the

ALJ's ultimate conclusion or contradicts the evidence actually relied upon in the decision, rather

than being merely duplicative of the relied-upon evidence concerning her diagnoses and

symptoms. Lora C.'s cited records primarily recount her diagnosed medical impairments and

their associated symptoms, all of which were accounted for in the cited medical records and in

Lora C.'s hearing testimony. Lora C. does not explain how referencing these additional records

would have meaningfully altered the ALJ's analysis. See Williams v. Astrue, 2012 WL 845590,

at *5 (S.D. Ind. Mar. 9, 2012) ("It would have been unnecessarily duplicative to restate every

diagnosis confirming an ailment the ALJ had already accepted. The ALJ's decision was not in

error in this respect."). This is especially true given that Lora C. does not challenge the great

weight that the ALJ gave to Dr. Robison's opinion, which considered Lora C.'s full list of

diagnoses and symptoms—including those in the records allegedly ignored by the ALJ—and

indicated that Lora C. was either generally or fully capable of performing a range of tasks. And

based on that report along with the other evidence considered, the ALJ found that Lora C.'s

mental impairments are not severe and did not incorporate any limitations into the RFC based on

these impairments. The Court concludes that the ALJ built a logical bridge between the evidence

and her conclusion, and substantial evidence supports the ALJ's determinations regarding Lora

C.'s mental impairments.

B. Whether the ALJ Failed to Comply With SSR 16-3p

As to this issue, Lora C. states that she "does not deny that the ALJ addressed each

regulatory factor of SSR 16-3p in [the] decision," but she maintains that the offered justifications

for dismissing the credibility of Lora C.'s testimony regarding her limitations were erroneous.

[Filing No. 10 at 30.] For example, she argues, the ALJ relied upon her activities of daily living,

but did not explain how these activities support the claim that Lora C. can engage in full-time

work at the medium exertion level. [Filing No. 10 at 30-31.] Lora C. also argues that the ALJ

ignored objective medical findings that would support her statements as to the location, duration,

frequency, and intensity of her pain, while focusing only on the medical findings that supported

the decision. [Filing No. 10 at 31-33.] Specifically, Lora C. asserts that the ALJ: (1) did not

address all of the facts in Nurse Practitioner Meyer's notes, including that Lora C.'s gait was slow

and antalgic and that she had increased pain with extension of the lumbar spine; (2) did not

address all of the facts in Dr. Renken's report, including that Lora C. had no reflexes in the

bilateral knees and ankles and diminished sensation below the knees; (3) completely ignored Dr.

Schmidt's notes revealing pain in the arms and back; and (4) ignored "other objective physical

examinations" that showed pain, diminished sensation, numbness and tingling, and a slightly

antalgic gait. [Filing No. 10 at 31-32.]

In response, the Commissioner characterizes Lora C.'s argument as "conced[ing] that the

ALJ addressed each regulatory factor under [SSR] 16-3p in evaluating her subjective symptoms"

but "tak[ing] issue with how the ALJ weighed the evidence related to the factors of her daily

activities and the location, duration, frequency and intensity of her pain." [Filing No. 11 at 13.]

The Commissioner asserts that Lora C. does not explain how the ALJ placed undue weight on

her daily activities, or how the evidence related to her pain demonstrated greater work-related

limitations than the ALJ found, and that Lora C.'s arguments "amount to an improper request that

this Court reweigh the evidence in a light more favorable to her application for benefits." [Filing

No. 11 at 13-14.] The Commissioner argues that, although Lora C. asserts that the ALJ cherry-

picked evidence, she "provides no proof that the ALJ was picking cherries and ignoring evidence

in this case." [Filing No. 11 at 14 (quoting Marvious P. v. Saul, 2019 WL 5328878, at *3 (S.D.

Ind. Sept. 30, 2019), report and recommendation adopted, 2019 WL 5309411 (S.D. Ind. Oct. 21,

2019)).] The Commissioner also contends that the medical sources and treatment notes Lora C.

points to do not provide any findings regarding work-related functions that undermine the ALJ's

RFC finding or otherwise provide a basis for the Court to disturb the ALJ's subjective symptom

evaluation. [Filing No. 11 at 14.]

Lora C.'s reply brief does not specifically address this issue, apart from general

arguments that the Commissioner cannot merely provide post hoc justifications for the ALJ's

decision and the ALJ may not analyze only favorable evidence while ignoring unfavorable

evidence. [See Filing No. 12.]

In SSR 16-3p, the SSA announced that it would no longer assess the "credibility" of a

claimant, and instead would focus on determining the "intensity and persistence" of the

claimant's symptoms. Cole v. Colvin, 831 F.3d 411, 412 (7th Cir. 2016) (citing SSR 16-3p).

"The change in wording is meant to clarify that [ALJs] aren't in the business of impeaching

claimants' character; obviously [ALJs] will continue to assess the credibility of pain assertions

by applicants, especially as such assertions often cannot be either credited or rejected on the

basis of medical evidence." Cole, 831 F.3d at 412 (emphasis in original).

Analysis of the claimant's symptoms is a two-step process. SSR 16-3p, 2016 WL

1119029, *2 (S.S.A. Mar. 16, 2016). First, the ALJ "must consider whether there is an

underlying medically determinable physical or mental impairment(s) that could reasonably be

expected to produce an individual's symptoms, such as pain." Id. Second, the ALJ must

"evaluate the intensity and persistence of those symptoms to determine the extent to which the

symptoms limit an individual's ability to perform work-related activities." Id. In connection

with the second step, the ALJ must "examine the entire case record, including the objective

medical evidence; an individual's statements about the intensity, persistence, and limiting effects

of symptoms; statements and other information provided by medical sources and other persons;

and any other relevant evidence in the individual's case record." Id. at *4.

One factor for the ALJ to consider is the claimant's daily activities. Id. at *7. However,

the ALJ should not place "undue weight" on a claimant's ability to perform daily and household

activities. Craft v. Astrue, 539 F.3d 668, 680 (7th Cir. 2008) (citing Mendez v. Barnhart, 439

F.3d 360, 362 (7th Cir.2006)); see also Brown v. Colvin, 845 F.3d 247, 253 (7th Cir. 2016)

(noting that the Seventh Circuit has "repeatedly cautioned against equating daily living activities

with the ability to perform a full day of work"). Furthermore, "'[a]n ALJ cannot disregard a

claimant's limitations in performing' daily activities." Meuser v. Colvin, 838 F.3d 905, 913 (7th

Cir. 2016) (quoting Moss v. Astrue, 555 F.3d 556, 562 (7th Cir. 2009)) (alteration in original).

As Lora C. acknowledges, the ALJ recited and followed the two-step process for

evaluating the intensity, persistence, and limiting effects of her symptoms established by SSR

16-3p. [See Filing No. 8-2 at 17.] To the extent that Lora C. argues that the ALJ placed undue

weight on her daily activities, that argument is without merit. The ALJ did indeed discuss Lora

C.'s daily activities, but the analysis did not stop there: The ALJ went on to discuss medical

evidence from multiple medical professionals as well as objective tests, including x-rays and

MRIs. [Filing No. 8-2 at 17-20.] Lora C. has not explained—and the Court cannot discern—

how this discussion of daily activities along with other evidence amounts to placing undue

weight on Lora C.'s daily activities.

To the extent that Lora C. asserts that the ALJ impermissibly ignored certain medical

evidence in considering her subjective symptoms, her argument is without merit. Again, the ALJ

is not required to recite every piece of evidence in the record and also cannot be required to

recite each fact contained within each report that she does discuss. Lora C.'s arguments as to this

issue essentially ask the Court to reweigh the evidence, which the Court cannot do. See, e.g.,

Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004) (a reviewing court may not "reweigh

evidence, resolve conflicts in the record, decide questions of credibility, or, in general, substitute

[its] own judgment for that of the Commissioner"). For example, as to the records from Nurse

Practitioner Meyer, the ALJ recounted Lora C.'s reports of pain and noted that Nurse Practitioner

Meyer concluded that Lora C. had no neurological or motor strength deficits and no pathological

reflexes and should work on increasing her physical activity and losing weight. [Filing No. 8-2

at 18 (citing Filing No. 8-8 at 49).] Nothing else in this medical record—including notes that

Lora C. points out, which indicate that her gait was slow and antalgic, that she "does have pain

with walking," that she has "[f]ull cervical and lumbar range of motion with pain," or that she

had increased pain with extension of the lumbar spine—change the fact that Nurse Practitioner

Meyer ultimately concluded that Lora C. did not have motor strength deficits and was capable of

increased physical activity. Similarly, Lora C. takes issue with the ALJ's recitation of records

from Dr. Renken, although she does not address the fact that—as the ALJ noted in the

decision—after Lora C. visited Dr. Renken with complaints of pain, Dr. Renken referred her to a

Dr. Vitto, who treated her with injections and radiofrequency nerve ablations that provided some

relief from the pain. [Filing No. 8-2 at 18-19 (citing Filing No. 8-10).] The ALJ further noted

that after treatment by Dr. Vitto, physical examination of Lora C.'s lumbar spine revealed no

tenderness to palpitation and no pain. [Filing No. 8-2 at 19 (citing Filing No. 8-10 at 7).] All

this is to say that while an ALJ cannot "cherry-pick" only favorable facts, a claimant should not

"cherry-pick" only unfavorable facts in asking the Court to reconsider the ALJ's evaluation of the

claimant's subjective reports of symptoms. Here, the ALJ summarized numerous medical

records in conjunction with Lora C.'s testimony and her daily activities to conclude that her

assertions concerning the intensity, persistence, and limiting effects of her symptoms were not

entirely consistent with the other evidence. This constituted a proper application of SSR 16-3p,

and the ALJ's ultimate conclusion is supported by substantial record evidence and therefore will

not be disturbed. See Curvin v. Colvin, 778 F.3d 645, 651 (7th Cir. 2015) ("So long as an ALJ

gives specific reasons supported by the record, we will not overturn his credibility determination

unless it is patently wrong.").

C. Whether the RFC Determination or Hypothetical Questions Were Erroneous

Lora C. argues that the "ALJ never explain[ed] the rationale behind" the RFC finding,

and the "mandated predicate function-by-function assessment, along with the necessary

reasoning behind such an assessment[,] are missing" from the ALJ's analysis. [Filing No. 10 at

34.] Specifically, Lora C. asserts that "[t]here is no explanation how a 53 year old obese female

with severe lumbar and cervical spinal stenosis and herniated discs with radiculopathy resulting

in numbness and tingling in both the arms and legs with objectively verified reduced strength,

reduced range of motion, reduced sensation, reduced reflexes, decreased pinch and grip strength,

and slow antalgic gait is capable of standing and walking at least six hours in an eight hour

workday and ever lifting and carrying fifty pounds." [Filing No. 10 at 35.] She contends that the

RFC fails to account for her severe back issues and mental impairments, and also "creates

limitations not supported by medical evidence." [Filing No. 10 at 36.] Lora C. further argues

that, because the ALJ's hypothetical questions to the VE were based on an RFC that failed to

include all of the necessary information and limitations based on the medical evidence, the ALJ's

decision based on that questioning cannot stand. [Filing No. 10 at 35.]

The Commissioner responds that substantial evidence supported the ALJ's RFC finding.

[Filing No. 11 at 10-11.] Specifically, the Commissioner points out that the ALJ discussed

treatment notes, including a May 2016 visit with Dr. Bain, an October 2016 visit with Nurse

Practitioner Meyer, several 2018 visits with anesthesiologist and pain management physician Dr.

Vitto, and various objective MRI and x-ray results. [Filing No. 11 at 11-12.] The Commissioner

also notes that the ALJ gave great weight to the October 2016 consultative examination opinion

by Dr. Rathod and the January 2017 opinion of state agency medical consultant Dr. J.V.

Corcoran. [Filing No. 11 at 12.] The Commissioner asserts that Lora C.'s argument that the ALJ

did not adequately explain the RFC finding "ring[s] hollow," and she has not presented any

reason for the Court to remand for a reassessment of the RFC. [Filing No. 11 at 12.]

Lora C.'s reply brief does not specifically address this issue, apart from general

arguments that the Commissioner cannot merely provide post hoc justifications for the ALJ's

decision and the ALJ may not analyze only favorable evidence while ignoring unfavorable

evidence. [See Filing No. 12.] She also recites generally law stating that the ALJ may not

merely summarize, but must analyze, the relevant evidence and provide a logical bridge for the

evidence to the conclusion regarding the RFC. [Filing No. 12 at 3.]

In addition to discussing the many medical records and objective test results outlined

above, the ALJ also gave "great weight" to the opinions of Dr. Corcoran, Dr. Shipley, Dr.

Rathod, Dr. Robison, and Dr. Schneider. [Filing No. 8-2 at 20.] Dr. Corcoran reviewed Lora

C.'s medical records and opined that she had exertional limitations consistent with performing

medium level work, including that she could occasionally lift and carry 50 pounds, frequently lift

and carry 25 pounds, stand or walk for about six hours in an eight-hour workday, sit for about six

hours in an eight-hour workday, and occasionally climb ramps, stairs, ladders, ropes, or

scaffolds, and occasionally balance, stoop, kneel, crouch, or crawl. [Filing No. 8-3 at 22-23.]

Dr. Shipley opined that Lora C.'s mental impairments were not severe. [Filing No. 8-3 at 21-22.]

Dr. Rathod opined that Lora C. had no physical abnormality, her motor function, gait, posture,

muscle strength, and neurological function were normal, and she had the ability to perform

activities involving sitting, standing, moving about, and carrying, with no difficulty kneeling,

crawling, squatting, climbing ladders or scaffolds, or walking up and down stairs. [Filing No. 8-

8 at 40.] As discussed more fully above, Dr. Robison and Dr. Schneider opined that Lora C.'s

mental impairments were not severe. [Filing No. 8-8 at 20-22; Filing No. 8-8 at 44-45.]

Lora C. does not argue that the ALJ erred in giving weight to any of these opinions, nor

does she point to any specific evidence that would undermine the ALJ's RFC determination.

Instead, she merely asserts that the ALJ did not provide a sufficient explanation of her reasoning.

However, given the discussion of all of these opinions, which draw specific conclusions

regarding Lora C.'s functional limitations, this argument must be rejected. The ALJ provided a

sufficient articulation of her reasoning, and the RFC determination is supported by substantial

evidence. See Zurawski v. Halter, 245 F.3d 881, 889 (7th Cir. 2001) (noting that an ALJ "must

provide some glimpse into the reasoning behind her decision" such that a court can conduct an

informed review).

As to the hypothetical questions posed to the VE, Lora C. only argues that the

hypotheticals were erroneous to the extent that they were based on a flawed RFC. Having

concluded that the RFC determination was not erroneous, there is no basis to conclude that the

hypothetical questions were flawed.

IV.

CONCLUSION

"The standard for disability claims under the Social Security Act is stringent." Williams-

Overstreet v. Astrue, 364 F. App'x 271, 271 (7th Cir. 2010). "The Act does not contemplate

degrees of disability or allow for an award based on partial disability." Id. (citing Stephens v.

Heckler, 766 F.2d 284, 285 (7th Cir. 1985)). "Even claimants with substantial impairments are

not necessarily entitled to benefits, which are paid for by taxes, including taxes paid by those

who work despite serious physical or mental impairments and for whom working is difficult and

painful." Williams-Overstreet, 364 F. App'x at 274. The Court can find no legal basis presented

by Lora C. to reverse the ALJ's decision that she was not disabled. Therefore, the decision

below is AFFIRMED. Final judgment shall issue accordingly.

Date: 7/24/2020 ‘

Hon. Jane Magnhus-Stinson, Chief Judge

‘United States District Court

Southern District of Indiana

Distribution via ECF only to all counsel of record

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