CROUCH v. SAUL

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

TERRE HAUTE DIVISION

SCOTT C. 1, )

)

Plaintiff, )

)

v. ) No. 2:20-cv-00501-DLP-JRS

)

KILOLO KIJAKAZI, )

)

Defendant. )

ORDER

Plaintiff Scott C. requests judicial review of the denial by the Commissioner

of the Social Security Administration ("Commissioner") of his application for Social

Security Disability Insurance Benefits ("DIB") under Title II of the Social Security

Act. See 42 U.S.C. §§ 405(g), 423(d). For the reasons set forth below, this Court

hereby AFFIRMS the ALJ’s decision denying the Plaintiff benefits.

I. PROCEDURAL HISTORY

On August 27, 2018, Scott proactively filed his application for Title II DIB

benefits. (Dkt. 12-2 at 20, R. 19). Scott alleged disability resulting from blind or low

vision, irritable bowel syndrome, tremors, high blood pressure, carpal tunnel,

arthritis, depression, restless leg syndrome, high cholesterol, and rheumatoid

arthritis. (Dkt. 12-3 at 3, R. 79). The Social Security Administration ("SSA") denied

1 In an effort to protect the privacy interests of claimants for Social Security benefits, the Southern

District of Indiana has adopted the recommendations put forth by the Court Administration and

Case Management Committee of the Administrative Office of the United States Courts regarding the

practice of using only the first name and last initial of any non-government parties in Social Security

opinions. The Undersigned has elected to implement that practice in this Order.

Scott's claim initially on February 15, 2019, (Dkt. 12-3 at 2-12, R. 78-88), and on

reconsideration on May 2, 2019. (Id. at 13-26, R. 89-102). On May 21, 2019, Scott

filed a written request for a hearing, which was granted. (Dkt. 12-2 at 20, R. 19).

On December 10, 2019, Administrative Law Judge ("ALJ") Stuart T. Janney

conducted a hearing, where Scott appeared in person and vocational expert

Christine Fontaine appeared telephonically. (Dkt. 12-2 at 44-78, R. 43-77). On

January 16, 2020, ALJ Janney issued an unfavorable decision finding that Scott

was not disabled. (Dkt. 12-2 at 20-39, R. 19-38). On January 17, 2020, Scott

appealed the ALJ's decision. (Dkt. 12-4 at 74-76, R. 175-77). On September 1, 2020,

the Appeals Council denied Scott's request for review, making the ALJ's decision

final. (Dkt. 12-2 at 2, R. 1). Scott now seeks judicial review of the ALJ's decision

denying benefits pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).

II. STANDARD OF REVIEW

To qualify for Title II DIB, a claimant must be disabled within the meaning

of the Social Security Act. To prove disability, a claimant must show he is unable to

"engage in any substantial gainful activity by reason of any medically determinable

physical or mental impairment which can be expected to result in death or which

has lasted or can be expected to last for a continuous period of not less than twelve

months." 42 U.S.C. § 423(d)(1)(A). To meet this definition, a claimant's impairments

must be of such severity that he is not able to perform the work he previously

engaged in and, based on his age, education, and work experience, he cannot engage

in any other kind of substantial gainful work that exists in significant numbers in

the national economy. 42 U.S.C. § 423(d)(2)(A). The SSA has implemented these

statutory standards by, in part, prescribing a five-step sequential evaluation

process for determining disability. 20 C.F.R. § 404.1520(a). The ALJ must consider

whether:

(1) the claimant is presently [un]employed; (2) the claimant has a

severe impairment or combination of impairments; (3) the

claimant's impairment meets or equals any impairment listed in

the regulations as being so severe as to preclude substantial

gainful activity; (4) the claimant's residual functional capacity

leaves him unable to perform his past relevant work; and

(5) the claimant is unable to perform any other work existing in

significant numbers in the national economy.

Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 351-52 (7th Cir. 2005) (citation

omitted). An affirmative answer to each step leads either to the next step or, at

steps three and five, to a finding that the claimant is disabled. 20 C.F.R. § 404.1520;

Briscoe, 425 F.3d at 352. If a claimant satisfies steps one and two, but not three,

then he must satisfy step four. Once step four is satisfied, the burden shifts to the

SSA 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); see also 20 C.F.R.

§ 404.1520. (A negative answer at any point, other than step three, terminates the

inquiry and leads to a determination that the claimant is not disabled.).

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 RFC is an assessment of what a

claimant can do despite his limitations. Young v. Barnhart, 362 F.3d 995, 1000-01

(7th Cir. 2004). In making this assessment, the ALJ must consider all the relevant

evidence in the record. Id. at 1001. The ALJ uses the RFC at step four to determine

whether the claimant can perform his own past relevant work and if not, at step

five to determine whether the claimant can perform other work in the national

economy. See 20 C.F.R. § 404.1520(a)(4)(iv)-(v).

The claimant bears the burden of proof through step four. Briscoe, 425 F.3d

at 352. If the first four steps are met, the burden shifts to the Commissioner at step

five. Id. The Commissioner must then establish that the claimant – in light of his

age, education, job experience, and residual functional capacity to work – is capable

of performing other work and that such work exists in the national economy. 42

U.S.C. § 423(d)(2); 20 C.F.R. § 404.1520(f).

Judicial review of the Commissioner's denial of benefits is to determine

whether it was supported by substantial evidence or is the result of an error of law.

Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). This review is limited to

determining whether the ALJ's decision adequately discusses the issues and is

based on substantial evidence. Substantial evidence "means – and means only –

such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion." Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019); Rice v. Barnhart, 384

F.3d 363, 369 (7th Cir. 2004). The standard demands more than a scintilla of

evidentiary support but does not demand a preponderance of the evidence. Wood v.

Thompson, 246 F.3d 1026, 1029 (7th Cir. 2001). Thus, the issue before the Court is

not whether Scott is disabled, but, rather, whether the ALJ's findings were

supported by substantial evidence. Diaz v. Chater, 55 F.3d 300, 306 (7th Cir. 1995).

Under this administrative law substantial evidence standard, the Court

reviews the ALJ's decision to determine if there is a logical and accurate bridge

between the evidence and the conclusion. Roddy v. Astrue, 705 F.3d 631, 636 (7th

Cir. 2013) (citing Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008)). In this

substantial evidence determination, the Court must consider the entire

administrative record but not "reweigh evidence, resolve conflicts, decide questions

of credibility, or substitute its own judgment for that of the Commissioner." Clifford

v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000). Nevertheless, the Court must conduct a

critical review of the evidence before affirming the Commissioner's decision, and the

decision cannot stand if it lacks evidentiary support or an adequate discussion of

the issues. Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003); see

also Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002).

When an ALJ denies benefits, he must build an "accurate and logical bridge

from the evidence to his conclusion," Clifford, 227 F.3d at 872, articulating a

minimal, but legitimate, justification for the decision to accept or reject specific

evidence of a disability. Scheck v. Barnhart, 357 F.3d 697, 700 (7th Cir. 2004).

The ALJ need not address every piece of evidence in his decision, but he cannot

ignore a line of evidence that undermines the conclusions he made, and he must

trace the path of his reasoning and connect the evidence to his findings and

conclusions. Arnett v. Astrue, 676 F.3d 586, 592 (7th Cir. 2012); Clifford, 227 F.3d at

872.

III. BACKGROUND

A. Factual Background

Scott was fifty-three years old as of his July 30, 2018 alleged onset date. (Dkt.

12-3 at 2, R. 78). He is a high school graduate who has past relevant work as an

operator and road boss in the construction industry. (Dkt. 12-6 at 7-8, R. 211-12).

B. ALJ Decision

In determining whether Scott qualified for benefits under the Act, the ALJ

employed the five-step sequential evaluation process set forth in 20 C.F.R.

§ 404.1520(a) and concluded that Scott was not disabled. (Dkt. 12-2 at 20-39, R. 19-

38). At Step One, the ALJ found Scott had not engaged in substantial gainful

activity since his alleged onset date of July 30, 2018. (Id. at 22, R. 21).

At Step Two, the ALJ found that Scott suffered from the following severe

impairment: bilateral knee degenerative joint space loss. (Dkt. 12-2 at 22, R. 21).

The ALJ found Scott had non-severe physical impairments of bilateral cubital and

carpal tunnel syndrome, essential tremor, low vision, hypertension, hyperlipidemia,

gastroesophageal reflux disease, irritable bowel syndrome, and obesity. (Id. at 22-

23, R. 21-22). The ALJ concluded that Scott's medically determinable mental

impairments of major depressive disorder, moderate, recurrent, with anxious

distress; anxiety; and post-traumatic stress disorder, considered singly and in

combination, were nonsevere impairments. (Id. at 24, R. 23). Additionally, when

considering the "paragraph B" criteria, the ALJ found that Scott had no limitation

in interacting with others but mild limitations in understanding, remembering, or

applying information, concentrating, persisting, or maintaining pace, and adapting

or managing oneself. (Dkt. 12-2 at 24-29, R. 23-28).

At Step Three, the ALJ found that Scott's impairments or combination of

impairments did not meet or medically equal the severity of one of the listed

impairments in 20 C.F.R. §§§ 404.1520(d), 404.1525, 404.1526. (Dkt. 12-2 at 30, R.

29).

After Step Three but before Step Four, the ALJ found that Scott had the

residual functional capacity ("RFC") to perform the full range of medium work as

defined in 20 C.F.R. § 404.1567(c). (Dkt. 12-2 at 30-37, R. 29-36).

At Step Four, the ALJ concluded that Scott is capable of performing past

relevant work as an Operating Engineer, medium exertion as generally performed,

very heavy exertion as actually performed, skilled with an SVP of 6; and Truck

Driver, Heavy, medium exertion as generally performed, very heavy exertion as

actually performed, semi-skilled with an SVP of 4. (Dkt. 12-2 at 37-39, R. 36-38).

The ALJ concluded that Scott was not disabled. (Id. at 39, R. 38).

IV. ANALYSIS

Scott challenges the ALJ's decision on two bases: (1) the ALJ erred by failing

to recognize his obesity as a medically determinable impairment, and (2) the ALJ's

residual functional capacity assessment is not supported by substantial evidence.2

(Dkt. 15 at 4).

A. Obesity

Scott contends that the ALJ committed reversible error when he failed to

recognize Plaintiff's obesity as a medically determinable impairment at Step Two

and when he failed to consider it when assessing Scott's RFC. (Dkt. 15 at 5-7). In

response, the Commissioner maintains that the ALJ found Plaintiff's obesity to be a

non-severe impairment at Step Two, and accurately considered this impairment

when factoring an appropriate RFC. (Dkt. 18 at 9-10). In his reply, Scott concedes

that the ALJ did find Plaintiff's obesity to be a non-severe, medically determinable

impairment, at Step Two. (Dkt. 19 at 1). Scott continues to maintain, however, that

remand is necessary because of the ALJ's failure to consider Plaintiff's obesity in

crafting Scott's RFC. (Id. at 1-2). This will be addressed in the next section.

At Step Two of the sequential process, ALJs are required to determine

whether the claimant has an impairment or combination of impairments that are

"severe." 20 C.F.R. § 404.1520(a)(4)(ii).3 Here, as the Plaintiff concedes in his Reply

2 Plaintiff's Opening Brief technically raises four issues for review. (Dkt. 15 at 4). Because Scott

concedes his Step Two argument in the reply brief, the Court will address Scott's RFC arguments

under one subheading.

3 A severe impairment is one that "significantly limits [one's] physical or mental ability to do basic

work activities." 20 C.F.R. § 404.1520(c). When considering whether an impairment is severe, an

ALJ is to consider whether the impairment significantly limits the claimant's physical or mental

ability to do basic work activities, such as walking, standing, sitting, pushing, pulling, use of

judgment, or dealing with changes in a routine work setting. 20 C.F.R. § 404.1522. Impairments are

found to be "not severe" when the medical evidence establishes only a slight abnormality which

would have no more than a minimal effect on an individual's ability to work even if the individual's

age, education, or work experience were specifically considered. SSR 85-28.

brief, the ALJ found Scott's obesity to be a non-severe, medically determinable

impairment. (Dkt. 12-2 at 22-23, R. 21-22). Thus, the ALJ did not err at Step Two.

B. Residual Functional Capacity

Scott's remaining arguments relate to the ALJ's residual functional capacity

assessment. The Seventh Circuit has defined the RFC as "the claimant's ability to

do physical and mental work activities on a regular and continuing basis despite

limitations from [his] impairments." Moore v. Colvin, 743 F.3d 1118, 1121 (7th Cir.

2014). It is the most the claimant can do despite his limitations. 20 C.F.R. §

404.1545(a)(1). When determining the RFC, an ALJ "must consider all medically

determinable impairments, physical and mental, even those that are not considered

severe." Craft v. Astrue, 539 F.3d 668, 675-76 (7th Cir. 2008). And, while an ALJ

"must consider the entire record," the ALJ "is not required to rely entirely on a

particular physician's opinion or choose between the opinions [of] any of the

claimant's physicians." Schmidt v. Astrue, 496 F.3d 833, 845 (7th Cir. 2007). Rather,

it is the ALJ's role to resolve conflicts in the evidence and to formulate an

appropriate RFC based on consideration of the entire record. Diaz v. Chater, 55 F.3d

300, 306 n.2 (7th Cir. 1995) (the determination of RFC "is an issue reserved for the

[Commissioner]," based on "the entire record, including all relevant medical and

nonmedical evidence" and "if conflicting medical evidence is present, the SSA has

the responsibility of resolving the conflict."). The Court will address each of Scott's

arguments in turn.

1. Obesity

Where a claimant suffers from obesity, the ALJ must consider the limiting

effects of obesity with the claimant's underlying impairments when formulating the

RFC. SSR 19-2p. As noted above, the ALJ found Scott's obesity to be a non-severe

impairment. The ALJ failed, however, to explicitly address Scott's obesity

impairment in the RFC. (Dkt. 12-2 at 30-37, R. 29-36). Scott maintains that the

ALJ's failure to properly consider his obesity or to include limitations in the RFC

warrants. (Dkt. 19 at 1-2). Because Scott has failed to cite to any medical evidence

demonstrating that his weight affected his ability to work, (Dkt. 15 at 5-7; Dkt. 19

at 1-3), the Court finds this error harmless.

Courts often find harmless error where the claimant fails to "specify how his

obesity further impaired his ability to work." Prochaska v. Barnhart, 454 F.3d 731,

736-37 (7th Cir. 2006) (affirming where the ALJ adopted the limitations suggested

by the reviewing doctors, who were aware of the claimant's obesity); see Skarbek v.

Barnhart, 390 F.3d 500, 504 (7th Cir. 2004) (holding that mere speculation about

the impact of obesity is insufficient for remand); Rennaker v. Saul, 820 F. App'x.

474, 481 (7th Cir. 2020) (finding the ALJ's failure to consider claimant's obesity

harmless were claimant failed to explain how her obesity hampered her ability to

work). Scott fails to point to any medical records to support his contention that his

obesity required limitations in the RFC assessment or that it limited his ability to

work. Givens v. Colvin, No. 4:12-cv-44-WGH-RLY, 2013 WL 1102754, at *4 (S.D.

Ind. Mar. 15, 2013); see also Clark v.

Kijakazi, No. 20-CV-1363, 2021 WL 5905942, at *3 (E.D. Wis. Dec. 14, 2021)

(finding ALJ's error in failing to specifically address the effects of the claimant's

obesity on her mental limitations harmless where the claimant did not explain how

her obesity – in combination with either her physical or mental impairments –

impacted her ability to work); Stepp v. Colvin, 795 F.3d 711, 720 (7th Cir. 2015)

("An ALJ's failure to explicitly consider an applicant's obesity is harmless if the

applicant did not explain how [his] obesity hampers [his] ability to work."). Scott did

not seek treatment for obesity or testify that obesity affects him in any way. Mere

speculation that obesity should or could have affected other impairments is not

enough. Reid v. Berryhill, No. 1:17-cv-02933-RLY-DLP, 2018 WL 3422128, at *4

(S.D. Ind. June 14, 2018), R. & R. adopted, No. 1:17-cv-02933-RLY-DLP, 2018 WL

3416621 (S.D. Ind. July 13, 2018). Because any consideration of obesity by the ALJ

would have been speculative, the Court finds remand to be inappropriate on this

issue.

2. Ability to perform "medium work"

Next, Scott asserts that the ALJ failed to build an accurate and logical bridge

from the evidence to his conclusion when he determined that Scott had the residual

functional capacity to perform medium work. (Dkt. 15 at 8). Scott argues that the

ALJ never explains how he came up with assigning a "medium" RFC. (Id). The

Commissioner maintains that the ALJ sufficiently explained his RFC finding,

in accordance with SSR 96-8p. (Dkt. 18 at 7-8). The Commissioner also asserts that

the ALJ's discussion of Plaintiff's medical records and the medical source opinions

constitute substantial evidence supporting the finding that Scott could perform

medium work. (Id.).

By finding that Scott had the residual functional capacity to perform medium

work, (Dkt. 12-2 at 30, R. 29), the ALJ concluded that Scott could "[lift no more than

50 pounds at a time with frequent lifting or carrying of objects weighing up to 25

pounds." 20 C.F.R. § 404.1567(c). In reaching this conclusion, the ALJ followed a

two-step process. (Dkt. 12-2 at 30-31, R. 29-30). The ALJ first determined that

Scott's impairments could reasonably be expected to cause Scott's alleged symptoms.

(Id. at 30-32, R. 29-31). The ALJ then evaluated the intensity, persistence, and

limiting effects of Scott's symptoms to determine the extent to which they limit

Scott's work-related activities. (Id. at 31-32, R. 30-31).

In making this evaluation, the ALJ considered the statements by Scott and

his wife that Scott could lift 50 pounds. (Dkt. 12-2 at 34, R. 33). The ALJ noted Scott

consistently demonstrated normal gait, normal strength in bilateral upper and lower

extremities, normal range of motion, and normal coordination. (Id. at 33-34, R.

32-33). The ALJ noted that in May 2018, Scott denied having limited use of his

arms, hands, fingers, legs, feet, and toes; Scott also denied having neck and back

problems. (Dkt. 12-2. at 33, R. 32). The ALJ pointed to Scott's consultative

examinations with Dr. Soufi in which he had a steady and symmetric gait; did not

use an assistive device; exhibited 5/5 muscle strength throughout his bilateral lower

extremities; was able to lift, carry and handle light objects; and exhibited grossly

normal fine and gross manipulative abilities. (Dkt. 12-2. at 33, R. 32; Dkt. 12-7 at

56-58, 65-67, R. 371-73, 380-82). The ALJ also pointed to Scott's ability to rise from

a sitting position without assistance; get up and down from the exam table with

ease; squat and rise from that position with ease; walk on heels and toes with ease;

no joint swelling, effusion, erythema, or deformity; his ability to stand and hop on

one foot bilaterally; and his full range of motion. (Dkt. 12-2 at 33-34, R. 32-33; Dkt.

12-7 at 57-58, 66, R. 372-73, 381). The ALJ also considered Scott's and his wife's

statements regarding Scott's activities of daily living, which included Scott walking

his dogs, washing dishes, shopping, and his ability to perform some yardwork. (Dkt.

12-2 at 34, R. 33; Dkt. 12-6 at 19-21, 31-33, R. 223-25. 235-37; Dkt. 12-7 at 54, 63,

71, 98, R. 369, 378, 386, 413).

It is important to note that much of Scott's testimony at the hearing sharply

contrasted with his early statements contained in the record limiting his subjective

symptom reliability. See Masters v. Astrue, 818 F. Supp. 2d 1054, 1065 (N.D. Ill.

Aug. 19, 2011) ("[A]n ALJ may reasonably disbelieve a claimant's testimony when,

for example, it is contradicted by medical records or other medical evidence, by

conduct inconsistent with the claim, by prior inconsistent statements, or other

conduct or statements that tend to render the testimony doubtful."); Summers v.

Berryhill, 864 F.3d 523, 528 (7th Cir. 2017) (affirming the ALJ's credibility

determination where the claimant's allegations conflicted with prior statements to

medical providers). While acknowledging a range of daily activities in

his Social Security application paperwork, Scott testified at the disability hearing

that he does not shop, wash dishes, or walk his dogs. (Dkt. 12-2 at 65, 67, R. 64, 66).

The ALJ noted these inconsistencies in his opinion. (Dkt. 12-2 at 34-35, R. 33-34).

The ALJ then considered the medical opinions of the state agency

consultants, the consultative examiners, and Scott's physician. (Dkt. 12-2 at 35-37,

R. 34-36). The ALJ first considered the opinions of state agency medical consultants

Dr. B. Whitley and Dr. J. Sands, who opined that Scott was capable of light work.

(Dkt. 12-2 at 35, R. 34). The ALJ found these opinions less persuasive because the

doctors failed to provide sufficient rationale for their postural limitations and the

inconsistencies of the opinions with the evidence from other medical sources. (Id.).

Scott does not contest this finding. The ALJ found the opinions of Dr. Soufi most

persuasive because Dr. Soufi's physical exam findings did not differ markedly from

those from other providers. (Id. at 35-36, R. 34-35; Dkt. 12-7 at 52-59, 61-67; R.

367-74, 376-82). The ALJ also considered the post-operative limitations imposed by

Dr. Terry Fenwick related to Scott's carpal tunnel surgery but found the opinion

unpersuasive because the limitations were intended to be in place for only a few

weeks, not a continuous period of 12 or more months. (Dkt. 12-7 at 36, R. 35).

In formulating Scott's RFC, the ALJ sufficiently weighed Scott's medical

history, physicians' opinions, the effects of claimant's subjective symptoms, the

statements made by Scott and his wife regarding his activities of daily living, and

other record evidence, to build a logical bridge between the evidence and his

conclusion. The ALJ's determination that Scott's physical limitations limited him to

performing the full range of medium work is supported by substantial evidence in

the record, thus remand is not warranted on this issue.

3. Need for Updated Medical Opinion

Scott next argues that the ALJ erred in failing to obtain an updated medical

expert opinion to review his October 2019 x-rays which demonstrated that he had

"mild degenerative joint space loss in both knees" and "small right knee joint

effusion." 4 (Dkt. 15 at 8-9). In response, the Commissioner contends that Scott has

failed to demonstrate how these x-rays constituted new, significant evidence that

reasonably could have changed the ALJ's decision. (Dkt. 18 at 11).

As Scott argues, Dr. Soufi, who examined the claimant in February and April

2019, did not review his bilateral knee x-rays taken on October 21, 2019. (Dkt. 12-7

at 104-05, R. 419-20). Because of this new medical evidence diagnosing "mild

degenerative joint space loss in both knees," Scott maintains that the ALJ was

required to submit the x-rays to medical scrutiny. (Dkt. 15 at 9). The Court

disagrees.

"It is common for there to be a lag between the state agency physicians'

reviews and the ALJ's decision, so the fact that new medical records came in after

the state agency physicians conducted their reviews, is not, by itself problematic."

4 "Joint effusion" refers to a swollen joint that happens when extra fluids flood the tissues around a

person's joints. Joint Effusion (Swollen Joint), CLEVELAND CLINIC,

https://my.clevelandclinic.org/health/symptoms/21908-joint-

effusion#:~:text=What%20is%20joint%20effusion%3F,compared%20to%20your%20other%20joints

(last visited Feb. 22, 2022).

Shelia M. v. Saul, No. 20 C 664, 2021 WL 1784775, at *6 (N.D. Ill. May 5, 2021).

Instead, the dispositive question is whether there is evidence containing new,

significant medical diagnoses postdating the state agency examining physician's

opinion that reasonably could have changed the physician's opinion. Stage v. Colvin,

812 F.3d 1121, 1125 (7th Cir. 2016) (remanding where a later diagnostic report

contained "significant, new, and potentially decisive findings" that could

"reasonably change the reviewing physician's opinion"). Under those circumstances,

the ALJ should not rely on the outdated state agency assessment, but submit the

new evidence to medical scrutiny. Moreno v. Berryhill, 882 F.3d 722, 728 (7th Cir.

2018); see also Kemplen v. Saul, 844 F. App'x 883, 887 (7th Cir. 2021); Keys v.

Berryhill, 679 F. App'x 477, 481 (7th Cir. 2017); Charles B. v. Saul, 2:19-cv-00084-

JPH-DLP, 2020 WL 1163924, at *14 (S.D. Ind. Mar. 11, 2020) ("The Seventh Circuit

has repeatedly held that an ALJ may not 'play doctor' and interpret 'new and

potentially decisive medical evidence' without medical scrutiny.").

Here, there were no significant medical findings that the ALJ failed to

consider, nor was there any new and significant evidence that reasonably could

have changed Dr. Soufi's opinion. First, the ALJ's RFC determination suggests that

the ALJ was aware of Scott's October 2019 x-rays generated after Dr. Soufi's

consultative examinations. As the ALJ noted, Scott's primary care provider, Nurse

Practitioner Kathy Brinkman ordered Scott's X-rays, during his October 21, 2019

examination, in response to Scott's complaints about knee pain. (Dkt. 12-2 at 34, R.

33; Dkt. 12-7 at 92-93, R. 407-08). Ms. Brinkman's treatment notes documented

that she had reviewed and discussed the x-rays with Scott, found him to be stable

and doing well, and advised Scott to remain as active and mobile as possible. (Dkt.

12-2 at 34, R. 33; Dkt. 12-7 at 93, R. 408). Next, the ALJ acknowledged Scott's

December 4, 2019 visit with Nurse Practitioner Ann Vash for IBS. (Dkt. 12-2 at 34,

R. 33; Dkt. 12-7 at 127-30, R. 442-45). Citing directly to Ms. Vash's evaluation, the

ALJ noted that Scott had no joint pain, swelling, redness, or limited mobility; and

on physical exam, normal range of motion in his extremities. (Dkt. 12-2 at 34, R. 33;

12-7 at 130, R. 445). Thus, contrary to the Plaintiff's contention, the ALJ did not

impermissibly play doctor interpreting Scott's x-rays. Instead, the ALJ simply

acknowledged the October 2019 x-rays and their findings. (Dkt. 12-2 at 34, R. 33).

Scott has failed to demonstrate how his October x-rays "changed the picture

so much" that the ALJ erred by continuing to rely on Dr. Soufi's earlier assessment.

Kemplen v. Saul, 844 F. App'x at 887 (citing Stage v. Colvin, 812 F.3d 1121, 1125

(7th Cir. 2016)). Scott's complaints regarding his knees were well documented in

records and statements and known by the agency prior to the October 2019 x-rays.

In his December 2018 Adult Function Report, which was reviewed by the agency,

Scott stated that it was rough for him going up stairs because it hurt and that it was

rough for him to get up from a squat. (Dkt. 12-6 at 35, R. 239; Dkt. 12-3 at 4, R. 80).

Following this report, Scott presented to Dr. Soufi on February 9, 2019 for his

consultation. The Plaintiff's musculoskeletal physical exam showed Scott was able

to squat, rise from a sitting position without assistance, and get up and down from

the exam table with ease. (Dkt. 12-7 at 57, R.

372). Dr. Scoufi also noted that Scott had a normal range of motion – bending and

straightening – in both knees. (Dkt. 12-7 at 58, R. 373).

In support of the reconsideration of his disability application, on February 26,

2019, Scott informed the agency that he felt he could no longer do his job because it

was painful for him to get in and out of the machines. (Dkt. 12-6 at 61, R. 265).

Scott specifically noted in his March 2019 Adult Function Report, which was also

reviewed by the agency, that he hurt when he knelt and struggled to get out of his

bathtub. (Dkt. 12-6 at 66, 70, R. 270, 274). Following this, on April 27, 2019, Scott

presented to Dr. Soufi for a second consultative examination. (Dkt. 12-7 at 61-67, R.

376-82). Scott's musculoskeletal physical exam revealed tenderness in the hands,

elbows and ankles. (Dkt. 12-7 at 66, R. 381). Dr. Soufi noted that Scott was able to

squat, rise from a sitting position, get up and down from the exam table with ease,

and stand and hop on one foot bilaterally. (Id.). Dr. Scoufi also noted that Scott had

a normal range of motion – bending and straightening – in both knees, and no joint

swelling or effusion. (Id.). As noted above, Scott took bilateral x-rays of his knees in

October 2019. After examining Scott and reviewing the x-rays, Scott's primary care

provider, Ms. Brinkman did not identify any specific limitations in Scott's abilities.

Here, the ALJ clearly reviewed, considered, and then discussed at length Scott's

medical history, including his October 2019 x-rays. The Plaintiff has failed to

present any significant medical findings that the ALJ failed to consider.

Moreover, Scott offers no explanation or argument of how his x-rays from

October 2019 showing "mild degenerative joint space loss" and "small right knee

joint effusion," could have altered Dr. Soufi's opinion. Courts have generally not found

new evidence showing only mild changes in a claimant's condition to be potentially

decisive. Shelia M. v. Saul, No. 20 C 664, 2021 WL 1784775, at *6 (N.D. Ill. May 5,

2021); see also Keys v. Berryhill, 679 F. App'x 477, 481 (7th Cir. 2017)

(finding that it was not error for the ALJ to rely on the opinions of the state agency

doctors where the plaintiff did not explain how the findings on plaintiff's two spinal

MRIs would have changed the doctors' opinions); Natasha M. v. Saul, No. 2:19-

cv-002520JRS-DLP, 2020 WL 5640529, at *6-7 (S.D. Ind. Sept. 2, 2020) (finding that

the consultant psychological assessments were not critically outdated relative to the

completed record where the plaintiff failed to show that there was significant evidence

that postdated the consultants' assessments); Bond v. Berryhill, No. 16 C 2018, 2017

WL 1398656, at *3 (N.D. Ill. Apr. 18, 2017) (finding that the ALJ did not need to get a

medical opinion to interpret a CT scan showing mild degenerative changes).

Plaintiff has not established that his October 2019 x-rays "changed the picture"

so much that the ALJ abused his discretion by failing to consult a medical expert

before making an RFC determination. These x-rays show only mild changes to Scott's

knees problems, which were issues documented at some level in the records provided to

the state agency physicians. Further, Scott's own primary care provider, Ms. Brinkman,

who reviewed the x-rays, failed to find that his knee pain affected his functional

limitations. See Frank R. v. Kijakazi, No. 19 CV 3223, 2021 WL 4264386, at *11 (N.D.

Ill. Sept. 20, 2021) ("In these circumstances, where plaintiff cannot

show that his treaters themselves opined that the more recent medical evidence

affected his work-related limitations, the Court finds that plaintiff has not shown

that it was an abuse of the ALJ's discretion to evaluate plaintiff's knee impairment

without requesting an updated medical opinion."). Because Scott failed to develop

any argument of how these x-rays could have changed the state agency physicians'

opinions, Scott is unable to demonstrate prejudice from the ALJ's decision to not

submit these records for medical review. Accordingly, the Court finds the ALJ did

not commit reversible error by declining to submit Scott's October 2019 x-rays for

medical scrutiny.

4. Paragraph B Criteria

Finally, Plaintiff maintains that the ALJ failed to properly incorporate all of

Scott's limitations in the RFC. (Dkt. 15 at 10-11). Specifically, the claimant argues

that while the ALJ found mild limitations in three of the four Paragraph B criteria,

there is no evidence that the ALJ included these limitations in the RFC. (Id.). In

response, the Commissioner maintains that the ALJ sufficiently considered the

combined effects of Plaintiff's impairments throughout the decision, including the

RFC, and that the ALJ's consideration was supported by the record. (Dkt. 18 at

12-17).

The Seventh Circuit has held that an ALJ must consider a claimant's RFC by

evaluating "all limitations that arise from medically determinable impairments,

even those that are not severe." Christina B. v. Kijakazi, No. 1:20-cv-01936-DLP-

JRS, 2022 WL 178606, at *2 (S.D. Ind. Jan. 20, 2022) (quoting Villano v. Astrue,

556

F.3d 558, 563 (7th Cir. 2009)). If, after consideration, the ALJ determines that a mild

limitation does "not merit a non-exertional limitation in the RFC, he is obligated to

explain that conclusion so that [the Court] can follow the basis of his reasoning."

Muzzarelli v. Astrue, No. 10 C 7570, 2011 WL 5873793, at *23 (N.D. Ill. Nov. 18, 2011)

(citing Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005)).

Here, at Step Two, the ALJ found that Scott had no more than mild limitations

in the first functional area of understanding, remembering, or applying information5;

no limitations in the second functional area of interacting with others; no more than

mild limitations in the third functional area of concentrating, persisting, or

maintaining pace6; and no more than mild limitations in the fourth functional area of

adapting or managing oneself7. (Dkt. 12-2 at 24-29, R. 23-28). The ALJ, however,

imposed no non-exertional limitations in the RFC. (Dkt. 12-2 at 30, R. 29).

Reading the ALJ's opinion as a whole,8 the Court finds the ALJ sufficiently

explained his reasoning for not including mental limitations in the RFC. At Step Two,

the ALJ noted Scott's assertion that he needed reminders to take his medication

5 Understanding, remembering, or applying information refers to the ability to learn, recall, and use

information to perform work activities. Examples include identifying and solving problems; following

one- or two-step oral instructions to carry out a task; and sequencing multi-step activities. 20 C.F.R.

§Pt. 404, Subpt. P, App. 1, 12.00(E)(1).

6 Concentrating, persisting, or maintaining pace refers to the ability to focus on work activities and

stay on task at a sustained rate. Examples include initiating and performing a task and working at

an appropriate and consistent pace. 20 C.F.R. § Pt. 404, Subpt. P, App. 1, 12.00(E)(3).

7 Adapting or managing oneself refers to the ability to regulate emotions, control behavior, and

maintain well-being in a work setting. Examples include responding to demands, adapting to

change; and maintaining personal hygiene. 20 C.F.R. § Pt. 404, Subpt. P, App. 1, 12.00(E)(4).

8 "[I]t is proper to read the ALJ's decision as a whole." Jenkins v. Saul, No. 18 C 7031, 2020 WL

7771142, at *13 (N.D. Ill. Dec. 29, 2020) (citing Rice v. Barnhart, 384 F.3d 363, 370 n. 5 (7th Cir.

2004) ("[I]t would be a needless formality to have the ALJ repeat substantially similar factual

analysis at both steps three and five.")).

and to go to appointments but did not need reminders for personal care; and that

Scott handled stress "fair" but did not handle change well. (Dkt. 12-2 at 24, R. 23).

The ALJ also acknowledged that Scott testified that he could pay attention for 10

minutes but that he did not finish what he starts. (Dkt. 12-2 at 24, 27, R. 23, 26).

During Scott's January and April 2019 psychological consultative

examinations, the ALJ noted that the claimant was able to interpret proverbs, note

similarities and differences, and perform simple calculations. (Dkt. 12-2 at 24-25, R.

23-24; Dkt. 12-7 at 46-49, 69-72, R. 361-64, 384-87). The examiner, Dr. Scott

Duncan, found Scott's immediate, recent, and remote memory functions to be intact.

(Id.). The reports also indicated that Scott was attentive and cooperative during the

examination and that he exhibited a logical and sequential thought process. (Dkt.

12-7 at 46-49, 69-72, R. 361-64, 384-87). Dr. Duncan determined that Scott had

adequate comprehension, memory, and complexity of endeavors. (Id.). The ALJ

acknowledged that no ambulatory or behavioral concerns were noted, and Scott's

hygiene and grooming were fairly meticulous. (Dkt. 12-2 at 28-29, R. 27-28). The

ALJ also recognized that during Scott's physical consultative examinations, Scott's

concentration was good. (Id. at 27, R. 26).

In the RFC assessment, the ALJ considered the opinions of reviewing

psychological consultants, Dr. Amy S. Johnson and Dr. Kari Kennedy, and

psychological consultative examiner, Dr. Duncan. The ALJ found the opinions of

Drs. Johnson, Kennedy, and Duncan persuasive. (Dkt. 12-2 at 30, 36-37, R. 29, 35,

36). Drs. Johnson and Kennedy opined that Scott did not have any severe mental

impairments, and Dr. Duncan opined that Scott did not have any work-related

limitations that would affect his ability to perform the mental demands of work-

related activity. (Dkt. 12-2 at 36-37, R. 35-36). Scott has not challenged the ALJ's

weighing of the state agency consultants’ opinions, and thus the Court accepts the

ALJ's finding. As support for finding these opinions persuasive, the ALJ

summarized Scott's mental health treatment records noting that Scott had failed to

offer many symptom allegations to his providers; engage in expansive mental health

treatment; or to have been referred for dedicated outpatient treatment, crisis

stabilization, or inpatient stays by his providers. (Id.). Through the development of

the record and extensive analysis, the ALJ has built a logical bridge between the

evidence and his decision to not include additional mental limitations in the RFC.

Because substantial evidence supports the ALJ's decision, remand is not warranted.

V. CONCLUSION

For the reasons detailed herein, this Court AFFIRMS the ALJ’s decision

denying the Plaintiff benefits. Final judgment will issue accordingly.

So ORDERED.

Date: 2/25/2022

United States Magistrate Judge

Southern District of Indiana

Distribution:

All ECF-registered counsel of record via email

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