Jamison v. Commissioner of Social Security

IN THE

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

PEORIA DIVISION

DUSTY J.,

Plaintiff,

v. Case No. 1:23-cv-01189-JEH

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

Order

Now before the Court is the Plaintiff’s Brief (Doc. 9) and the Defendant’s

Brief (Doc. 11).1 For the reasons stated herein, the Court DENIES the Plaintiff’s

request to reverse and remand the unfavorable decision of the Defendant, Martin

O’Malley, Commissioner of Social Security.2

I

Dusty J. filed an application for disability insurance benefits (DIB) on June

9, 2019, alleging disability beginning on August 15, 2010. She claimed a back injury

with degenerative disc disease and arthritis limited her ability to work, and she

stated she stopped working on April 15, 2019 due to her conditions. AR 224. Her

DIB claim was denied initially on October 25, 2019 and upon reconsideration on

March 27, 2020. Dusty filed a request for hearing concerning her DIB application,

which was held on August 25, 2022 before the Honorable David W. Thompson

1 The parties consented to the jurisdiction of a U.S. Magistrate Judge. (Docs. 7, 8).

2 References to the pages within the Administrative Record will be identified by AR [page number]. The Administrative Record

appears at (Doc. 5, 6) on the docket.

(ALJ). At the hearing, Dusty was represented by an attorney, and Dusty and a

vocational expert (VE) testified. Following the hearing, Dusty’s claim was denied

on September 19, 2022. Her request for review by the Appeals Council was denied

on February 1, 2023, making the ALJ’s Decision the final decision of the

Commissioner. Dusty, after obtaining an extension of time to do so, timely filed

the instant civil action seeking review of the ALJ’s Decision on May 15, 2023.

II

Dusty argues: 1) the ALJ committed reversible error when he failed to

consider the impact of Dusty’s chronic pain in assessing her work limitations, in

violation of Social Security Ruling 96-8p and Social Security Ruling 16-3p; and 2)

the ALJ’s finding that fibromyalgia is not a medically determinable impairment

(MDI) within the meaning of Social Security Ruling 12-2p is not supported by

substantial evidence.

III

The Court’s function on review is not to try the case de novo or to supplant

the ALJ’s findings with the Court’s own assessment of the evidence. See Schmidt

v. Apfel, 201 F.3d 970, 972 (7th Cir. 2000); Pugh v. Bowen, 870 F.2d 1271 (7th Cir.

1989). Indeed, “[t]he findings of the Commissioner of Social Security as to any

fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g).

Although great deference is afforded to the determination made by the ALJ, the

Court does not “merely rubber stamp the ALJ’s decision.” Scott v. Barnhart, 297

F.3d 589, 593 (7th Cir. 2002). The Court’s function is to determine whether the

ALJ’s findings were supported by substantial evidence and whether the proper

legal standards were applied. Delgado v. Bowen, 782 F.2d 79, 82 (7th Cir. 1986).

Substantial evidence is defined as such relevant evidence as a reasonable mind

might accept as adequate to support the decision. Richardson v. Perales, 402 U.S.

389, 390 (1971); Henderson v. Apfel, 179 F.3d 507, 512 (7th Cir. 1999).

In order to qualify for disability insurance benefits, an individual must show

that his inability to work is medical in nature and that he is totally disabled.

Economic conditions, personal factors, financial considerations, and attitudes of

the employer are irrelevant in determining whether a plaintiff is eligible for

disability. See 20 C.F.R. § 404.1566. The establishment of disability under the Act

is a two-step process.

First, the plaintiff must be suffering from a medically determinable physical

or mental impairment, or combination of impairments, 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 12 months. 42 U.S.C. § 423(d)(1)(A). Second, there must be

a factual determination that the impairment renders the plaintiff unable to engage

in any substantial gainful employment. McNeil v. Califano, 614 F.2d 142, 143 (7th

Cir. 1980). The factual determination is made by using a five-step test. See 20

C.F.R. § 404.1520. In the following order, the ALJ must evaluate whether the

claimant:

1) is performing substantial gainful activity;

2) suffers from an impairment that is severe and meets a

durational requirement, or suffers from a combination of

impairments that is severe and meets the durational

requirement;

3) suffers from an impairment which meets or equals any

impairment listed in the appendix and which meets the

duration requirement;

4) is unable to perform her past relevant work which includes an

assessment of the claimant’s residual functional capacity; and

5) is unable to perform any other work existing in significant

numbers in the national economy.

Id. An affirmative answer at Steps Three or Five leads to a finding that the plaintiff

is disabled. Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 352 (7th Cir. 2005).

The plaintiff has the burdens of production and persuasion on Steps One

through Four. Id. However, once the plaintiff shows an inability to perform past

work, the burden shifts to the Commissioner to show ability to engage in some

other type of substantial gainful employment. Weatherbee v. Astrue, 649 F.3d 565,

569 (7th Cir. 2011).

In the instant case, Dusty claims error on the ALJ’s part at Steps Two and

Four.

A

At Step One, the ALJ determined Dusty did not engage in substantial

gainful activity during the period from her alleged onset date, August 15, 2010,

through her date last insured, March 31, 2016. AR 30. At Step Two, the ALJ

determined Dusty had the following severe impairments: lumbar degenerative

disc disease and obesity. Id. At Step Three, the ALJ determined through the date

last insured, Dusty did not have an impairment or combination of impairments

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

34. At Step Four, the ALJ made the following residual functional capacity (RFC)

finding:

[T]hrough the date last insured, the claimant had the [RFC] to

perform light work as defined in 20 CFR 404.1567(b) except she is

limited to occasional climbing of ramps, stairs and ladders; limited to

no climbing of ropes and scaffolds; limited to occasional stooping,

kneeling, crouching and crawling; and limited to occasional exposure

to extreme cold, unprotected heights, and unprotected moving

machinery.

AR 35. The ALJ found through the date last insured, Dusty was capable of

performing her past relevant work as a collection clerk because the work did not

require the performance of work-related activities precluded by Dusty’s RFC. AR

44. Thus, the ALJ concluded Dusty was not under a disability at any time from

August 15, 2010 through March 31, 2016. AR 45.

B

Dusty argues the ALJ erred where he failed to consider the mental

limitations arising from Dusty’s chronic pain. She says he incorrectly derived a

“clear and convincing evidence of intense and disabling pain” standard, and he

erred by failing to account for the mental impact of Dusty’s chronic pain and

medication side effects. The Commissioner argues substantial evidence supported

the ALJ’s evaluation of Dusty’s symptoms. He says the Social Security Act, the

regulations, agency policy, and case law belie Dusty’s argument that her subjective

testimony about her pain is enough to establish disability.

Indeed, 42 U.S.C. § 423(d)(5)(A) provides, in relevant part, “An individual’s

statement as to pain or other symptoms shall not alone be conclusive evidence of

disability as defined in this section; there must be medical signs and findings . . .

.” 20 C.F.R. § 404.1529 makes an ALJ’s obligation to consider objective medical

evidence explicit: “In determining whether you are disabled, we consider all your

symptoms, including pain, and the extent to which your symptoms can reasonably

be accepted as consistent with the objective medical evidence and other evidence.”

20 C.F.R. § 404.1529(a). SSR 16-3p provides, in turn, that all the evidence, including

objective medical evidence, is to be considered in evaluating the intensity,

persistence, and limiting effects of an individual’s symptoms and also the factors

set forth in 20 C.F.R. § 404.1529(c)(3) are to be considered including: the claimant’s

daily activities; the location, duration, frequency, and intensity of pain or other

symptoms; precipitating and aggravating factors; medications and their side

effects; non-medication treatments; any other measures used to relieve pain or

other symptoms; and any other factors concerning the claimant’s functional

limitations and restrictions due to pain and other symptoms. SSR 16-3p, at *7-8.

1

Here, the ALJ first identified the location of Dusty’s ailments per Dusty’s

own statements: osteoarthritis in both knees and her lower back and rheumatoid

arthritis in her hands, knees, and ankles. AR 36. Before citing any medical records,

the ALJ explained, “The following summary of the medical evidence and

subsequent discussion supports [the assessment that Dusty’s statements

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

entirely consistent with the medical and other evidence in the record].” Id. From

there, the ALJ detailed Dusty’s varying complaints between September 2010 and

January 2016 of: low back pain, worsening back pain; pain with lumbar range of

motion; “pain everywhere;” pain in the back, wrist, and hand; back and right

lower extremity pain; pain in the wrists and ankles; pain in her jaw; pain in the

hips and knees, pain in the right foot; and low back pain into both legs. AR 36-41.

For the noted instances of pain complaints, the ALJ also considered

additional complaints of numbness and tingling as well as positive examination

findings, including tenderness in the following locations: the SI joints, the

paraspinal/paravertebral region, Achilles, left foot, the MCP joints, the PIP joints,

the calf area, the medial aspects of Dusty’s knees, the right ankle, and the

paravertebral gluteal region. AR 36, AR 37, AR 38, AR 39, AR 41. However, the

ALJ cited to several medical records which revealed tenderness was absent at times

Dusty complained and which revealed Dusty’s straight leg and other tests were

negative. See, e.g., AR 36, AR 37, AR 38, AR 40, AR 41; see also Zoch v. Saul, 981 F.3d

597, 601 (7th Cir. 2020) (“To determine the credibility of allegations of disabling

pain, an ALJ may consider several factors, including objective medical evidence

and any inconsistencies between the allegations and the record) (emphasis added).

Moreover, the ALJ further cited examinations that revealed, simultaneous with

Dusty’s pain complaints and tenderness, normal reflexes, intact sensation, no

atrophy, no swelling, no erythema, full range of motion, no deformity, no evidence

of sensory or motor deficits, normal gait, normal mental status, and no

coordination deficits. AR 36, AR 37, AR 38, AR 40, AR 41. The ALJ cited several

instances where examinations revealed tenderness but “were otherwise normal.”

AR 38, AR 39, AR 40. The ALJ also pointed out instances when Dusty objectively

appeared in no distress while she complained of worsening pain. AR 36, AR 37,

AR 41. Further, the ALJ cited: Dusty’s report that an injection worked much better

than the first one she received (AR 37); Dusty’s note in August 2011 that she was

going to start watching a friend’s baby though just two months earlier she reported

“difficulty holding infant long term” (AR 37); Dusty’s back pain was better with a

chiropractor’s treatment (AR 38); and Dusty had been doing well and had

tolerated her medications until a bout with the flu (AR 38). The ALJ cited where:

Dusty had been exercising (AR 39); Dusty’s knee was feeling better after

undergoing physical therapy (AR 39); she said a bath helped when she had muscle

pain (AR 39); her chronic pain was fairly well controlled as of August 2014 through

October 2014 (AR 40); she reported in June 2015 that her pain was controlled with

medication (AR 41); she obtained 40% relief from previous injections (AR 41); and

a neurosurgeon recommended conservative treatment (AR 42).

The ALJ thereafter condensed his discussion of the record evidence into

several conclusions, among others, that a 2014 MRI showed only mild stenosis,

post-date last insured imaging confirmed there had been little to no evidence of

significant stenosis, the medical records did not clearly demonstrate that Dusty

had significantly limited range of motion or difficulty ambulating, no provider

indicated the need for further surgery, and although Dusty said some of her

injections were unhelpful, she indicated her back pain was fairly well controlled

with muscle relaxants and opioid pain medications. AR 42. Plainly, the ALJ did

not demand Dusty produce specific objective medical findings to substantiate her

pain level. The ALJ instead did as required of him by 20 C.F.R. § 404.1529 and SSR

16-3p where he considered the bulk of the record evidence bearing upon the

question of whether Dusty was as limited by pain as she claimed. The Court may

not reweigh the evidence, but it certainly may (and does) find that the ALJ

committed no legal error in considering Dusty’s pain complaints. See Gedatus v.

Saul, 994 F.3d 893, 900 (7th Cir. 2021) (“We will not reweigh the evidence, resolve

debatable evidentiary conflicts, determine credibility, or substitute our judgment

for the ALJ’s determination so long as substantial evidence supports it”).

Specifically, as the Commissioner argues, there is nothing in the Decision to

suggest that the ALJ deviated from the preponderance of evidence standard of

review. See 20 C.F.R. § 404.901 (defining the preponderance of the evidence

standard as “such relevant evidence that as a whole shows that the existence of

the fact to be proven is more likely than not”). This Court, in turn, must of course

determine whether substantial evidence supports the ALJ’s Decision. See Wood v.

Thompson, 246 F.3d 1026, 1029 (7th Cir. 2001) (explaining the “substantial

evidence” standard demands more than a scintilla of evidentiary support but is

less demanding than the preponderance of the evidence standard). The ALJ

sufficiently explained, with citations to substantial record evidence, why he

determined Dusty was not as limited by pain as she claimed. See Biestek v. Berryhill,

587 U.S. 97, 103 (2019) (“substantial evidence . . . means – and means only – such

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

conclusion”).

2

Dusty points to her hearing testimony that her medications make her

drowsy, that she has to lie down approximately every 15 to 20 minutes for an hour

when performing basic household chores due to aggravated pain from activity,

and that she would be prevented from doing a “sit-down job” because she would

have to get up and move. AR 66, AR 67, AR 68, AR 72. She also cites to a single

treatment note which indicated that chronic pain interfered with her sleep which

then made it difficult to function and perform daily activities. Plf Brief (Doc. 9 at

pg. 12) (citing AR 1453). She argues the ALJ erred when he made no mention of

how the RFC assessment accounted for mental limitations arising from her chronic

pain and medication side effects in violation of SSR 96-8p. SSR 96-8p requires an

ALJ’s RFC assessment to include “a narrative discussion describing how the

evidence supports each conclusion, citing specific medical facts (e.g., laboratory

findings) and nonmedical evidence (e.g., daily activities, observations).” SSR 96-

8p, at *7. A full reading of the ALJ’s RFC assessment at Step Four contradicts

Dusty’s assertion.

As addressed above, the ALJ made no reversible error in his subjective

symptom evaluation. That alone undermines Dusty’s argument; the ALJ

determined Dusty’s pain was not as limiting as alleged, thus, any mental

limitations allegedly caused by that pain did not warrant inclusion in the RFC. See

Richards v. Berryhill, 743 F. App’x 26, 30 (7th Cir. 2018) (unpublished opinion)

(stating a claimant bears the burden of showing that she has impairments that

affect her ability to work and pointing to various diagnoses and complaints is

insufficient to establish the existence of a functional limitation) (citing Gentle v.

Barnhart, 430 F.3d 865, 868 (7th Cir. 2005)). Significantly, the ALJ considered

Dusty’s daily activities and observed they “indicate that the claimant can perform

some work activity.” AR 42.

The ALJ cited Dusty’s testimony that she was able to perform her own

personal care. AR 42. He cited that she was able to drive to watch her children’s

extra-curricular activities, including traveling out of state. Id. He cited Dusty’s

ability to care for not only her own children, “but also took on watching a friend’s

baby.” AR 43. The ALJ noted Dusty’s hearing testimony that her medications

made her drowsy and sometimes made it difficult to stay awake during the day,

but Dusty followed up with the statement that she was “drowsy quite a bit during

the day. Now, it’s more so just at night.” AR 35 (citing AR 66-67). The ALJ also

noted Dusty’s hearing testimony that she alternated between sitting and standing

at her child’s travel hockey games.3 AR 36. The ALJ ultimately concluded at Step

Four, “The claimant’s symptoms have been incorporated into the [RFC] herein.

Although the claimant does have impairments that can be anticipated to produce

a certain amount of limitations, she has not demonstrated limitations in excess of

those accounted for in the [RFC].” AR 44. The Court finds the ALJ built an

accurate and logical bridge from his lengthy summary of the overall record

evidence to his conclusions as reflected in the RFC finding. See Jeske v. Saul, 955

F.3d 583, 587 (7th Cir. 2020) (reiterating that an ALJ’s decision will be upheld if it

uses the correct legal standards, is supported by substantial evidence, and builds

an accurate and logical bridge from the evidence to the ALJ’s conclusion). One

conclusion being that the overall record evidence did not warrant the addition of

mental limitations in the RFC finding.

As the Commissioner puts it, the ALJ did not wholly reject Dusty’s

subjective complaints but instead discounted them in light of the overall record

evidence. See Gedatus, 994 F.3d at 903 (“the presence of contradictory evidence and

arguments does not mean the ALJ’s determination is not supported by substantial

evidence”). The Seventh Circuit has explained strict conformity with SSR 96-8p is

not necessarily fatal because, “Essentially, an ALJ’s RFC analysis must say enough

3 While not mentioned in the Decision, Dusty’s own attorney at her hearing elicited the following from

the VE. As long as the individual performing the identified job of Dusty’s past work as collection clerk

was within the productivity limits of no more than 15% off task, the individual could change position

from seated to standing and standing to seated. AR 81-82.

to enable review of whether the ALJ considered the totality of the claimant’s

limitations.” Jarnutowski v. Kijakazi, 48 F.4th 769, 774 (7th Cir. 2022) (internal

citations and quotations omitted). Here, even if the Court were to find the ALJ

could have more closely complied with SSR 96-8p, the ALJ’s RFC analysis certainly

said enough such that the Court answers in the affirmative that he considered all

of Dusty’s limitations.

C

Dusty lastly argues that the ALJ’s RFC finding is incomplete because it does

not account for any limitations arising from her impairment of fibromyalgia.

Dusty says that is because the ALJ, at Step Two, failed to correctly apply SSR 12-

2p. SSR 12-2p provides two ways of proving fibromyalgia is a MDI: the 1990

American College of Rheumatology (ACR) Criteria for the Classification of

Fibromyalgia and the 2010 ACR Preliminary Diagnostic Criteria. Both require the

claimant to show a history of widespread pain in all quadrants of the body that

has persisted for at least three months. The first way also requires at least 11

positive tender points on physical examination found bilaterally and both above

and below the waist and evidence that other disorders that could cause the

symptoms or signs were excluded. SSR 12-2p, at *2-3. The second way requires

the claimant to also show: repeated manifestations of six or more fibromyalgia

symptoms, signs, or co-occurring conditions, especially manifestations of fatigue,

cognitive or memory problems, waking unrefreshed, depression, anxiety disorder,

or irritable bowel syndrome; and evidence that other disorders that could cause

those repeated manifestations of symptoms, signs, or co-occurring conditions

were excluded. SSR 12-2p, at *3. SSR 12-2p also provides that an ALJ cannot rely

upon a licensed physician’s diagnosis of fibromyalgia alone. Id. at *2. Here, Dusty

contends the ALJ failed to comply with SSR 12-2p where he considered only the

1990 ACR criteria and did not even properly consider the evidence pursuant to

that set of criteria.

At Step Two, the ALJ explained that he considered and applied the

provisions of SSR 12-2p in assessing possible fibromyalgia, and he identified the

two sets of criteria. AR 33. From there, he focused on trigger point evidence,

stating:

[T]he claimant’s medical record refers to fibromyalgia but treatment

records do not identify any specific trigger points. At times, the

claimant had no diffuse tender points . . . At other times, only diffuse

tender points were noted . . . As such, there is insufficient information

upon which to find fibromyalgia a medically determinable severe

impairment.

Id. Quite obviously, the ALJ failed to include any discussion for the Court’s review

as to his consideration of both sets of criteria, and that was error. See Minnick v.

Colvin, 775 F.3d 929, 938 (7th Cir. 2015) (stating that an ALJ “must adequately

articulate her analysis so that [a reviewing court] can follow her reasoning”).

Among other arguments the Commissioner makes in opposition to Dusty’s,

the Commissioner contends the ALJ’s failure to evaluate whether Dusty’s

fibromyalgia met the 2010 ACR criteria was harmless. See Butler v. Kijakazi, 4 F.4th

498, 504 (7th Cir. 2021) (“the harmless error standard applies to judicial review of

administrative decisions, and we will not remand a case to the ALJ for further

specification where we are convinced that the ALJ will reach the same result”)

(quoting McKinzey v. Astrue, 641 F.3d 884, 892 (7th Cir. 2011)). He says that is so

where, as here, the ALJ found other impairments severe with similar symptoms

and proceeded with the sequential evaluation process. Castile v. Astrue, 617 F.3d

923, 927 (7th Cir. 2010); see also Arnett v. Astrue, 676 F.3d 586, 591 (7th Cir. 2012)

(“[d]eciding whether impairments are severe at Step 2 is a threshold issue only; an

ALJ must continue on to the remaining steps of the evaluation process as long as

there exists even one severe impairment” such that any error of omission by the

ALJ at Step Two was harmless where he categorized two impairments as severe).

Noting the ALJ found Dusty had severe degenerative disc disease and obesity,

both of which generated pain similar to her claimed fibromyalgia, the

Commissioner further argues Dusty cannot establish error because the ALJ

evaluated all of the medical records during the period under consideration when

evaluating what Dusty could and could not do in the workplace.

In fact, at Step Two, the ALJ explicitly recognized: “[T]he claimant’s

diagnosis is unclear, with varying diagnoses by different medical sources

addressing overlapping signs and symptoms, which is not surprising given the

nature of inflammatory/rheumatoid arthritis, fibromyalgia, and radiculopathy.”

AR 33. He continued, “Regardless of the diagnostic label applied, the undersigned

considered all of the claimant’s impairments, including those that are not severe,

when assessing the claimant’s [RFC].” AR 34. From there, at Step Four, the ALJ

considered the record evidence as detailed in III.B above.

The ALJ’s explicit consideration of that evidence contradicts Dusty’s

assertion that the ALJ failed to consider limitations her fibromyalgia caused. True,

the ALJ considered the complained of limitations as stemming from her lumbar

degenerative disc disease and obesity (rather than fibromyalgia), but the evidence

was one and the same. As detailed above, the ALJ juxtaposed Dusty’s complaints

with normal findings, the ALJ noted examinations simultaneously revealed

normal and positive findings, and the ALJ contemplated Dusty’s reported daily

activities and the efficacy of her medications against other record evidence. He

ultimately detailed how and why the evidence did not support the extent of

limitation alleged.

An “RFC assessment must incorporate all of the claimant’s limitations

supported by the medical record[.]” Lothridge v. Saul, 984 F.3d 1227, 1233 (7th Cir.

2021). Here, it is apparent the ALJ did as was required of him; the relevant

authority speaks of limitations, not a particular diagnosis in and of itself. See, e.g.,

Estok v. Apfel, 152 F.3d 636, 640 (7th Cir. 1998) (“It is not enough to show that [the

claimant] had received a diagnosis of fibromyalgia with a date of onset prior to the

expiration of the insured period, since fibromyalgia is not always (indeed, not

usually) disabling”).

Though the ALJ erred at Step Two, that error was rendered harmless at Step

Four where he considered Dusty’s alleged symptoms and limitations stemming

from her impairments, albeit without explicitly identifying fibromyalgia as a MDI.

Again, as the Court analyzed above in III.B, the ALJ’s consideration of the record

evidence at Step Four was articulated clearly enough to enable the Court to “assess

the validity of the ALJ’s ultimate findings and afford [Dusty] meaningful judicial

review.” Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008). The ALJ formulated a

RFC that was responsive to Dusty’s complaints of limitation while also reflective

of substantial medical and other evidence of record. Remand is not warranted.

IV

For the foregoing reasons, the Court DENIES the Plaintiff’s request to

reverse and remand the unfavorable decision of the Defendant. The Clerk of Court

is directed to enter judgment as follows: “IT IS ORDERED AND ADJUDGED that

the decision of the Defendant, Martin O’Malley, Commissioner of Social Security,

denying benefits to the Plaintiff, Dusty J., is AFFIRMED.” This matter is now

terminated.

It is so ordered.

Entered on August 19, 2024.

s/Jonathan E. Hawley

U.S. MAGISTRATE JUDGE