IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JEFFREY WEST, )

) 

Plaintiff-Claimant, )

)

v. ) No. 12-cv-272

)

) Jeffrey T. Gilbert

CAROLYN W. COLVIN, Acting ) Magistrate Judge

Commissioner of Social Security, )

)

Defendant-Respondent. )

MEMORANDUM OPINION AND ORDER

Claimant Jeffrey West brings this action under 42 U.S.C. § 405(g) seeking reversal or 

remand of the decision of Respondent Carolyn W. Colvin,

1 Commissioner of Social Security 

(“Commissioner”), denying Claimant’s application for disability insurance benefits. Claimant 

argues that Administrative Law Judge’s (“ALJ”) decision denying his application for disability 

benefits should be reversed or, alternatively, vacated and remanded to the Social Security 

Administration (“SSA”) for further proceedings. In support of his motion for summary 

judgment, Claimant raises the following issues: (1) whether the ALJ erred by failing to include 

Claimant’s mild limitations with regard to daily activities, social functioning, and concentration, 

persistence, or pace in his assessment of Claimant’s residual functional capacity (“RFC”); (2) 

whether the ALJ improperly evaluated the credibility of Claimant’s claims of disabling pain and 

 1 On February 14, 2013, Carolyn W. Colvin became Acting Commissioner of Social Security. Pursuant 

to Rule 25 of the Federal Rules of Civil Procedure, Carolyn W. Colvin is automatically substituted as the 

Defendant-Respondent in the case. No further action is necessary to continue this suit by reason of the 

last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

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symptoms under SSR 96-7p;2 and (3) whether a Sentence Six remand should be granted to 

consider new evidence.

For the reasons set forth below, Claimant’s motion for summary judgment is denied. The 

decision of the Commissioner of Social Security is affirmed.

I. BACKGROUND

A. Procedural History

Claimant filed applications for disability insurance benefits and supplemental security 

income on November 14, 2008, alleging a disability onset date of February 2, 2008. R.26, 155-

61. The SSA denied the application initially on January 20, 2009 and upon reconsideration on 

April 1, 2009. R.26, 90-106. Claimant then requested a hearing before an ALJ on April 17, 

2009. R.26, 109-10. Claimant appeared with his attorney and testified at a hearing on 

September 10, 2009 before the ALJ. R.26. Medical Expert Dr. Charles Metcalf, M.D., also 

appeared and testified (R.30-35, 67-72, 77-79), and Vocational Expert Robert Hammond

testified by telephone. R.35-36, 55, 72-74, 77, 79-84.

On March 22, 2010, the ALJ issued his decision finding that Claimant is not disabled. 

R.23, 26-37. Specifically, the ALJ found that Claimant suffered from several severe 

impairments, including hepatitis C, irritable bowel syndrome, shoulder problems, and a 

respiratory condition (R.28), but that Claimant’s mental impairments of depression and anxiety 

disorder were not severe. R.29. The ALJ concluded that Claimants impairments no more than 

mildly limited his ability to perform activities of daily living, his social functioning, and his 

concentration, persistence, or pace. R.29. The ALJ found that Claimant could perform work of 

 2 We have collapsed three of the Claimant’s arguments – that the ALJ improperly evaluated Claimant’s 

credibility under SSR 96-7p, that the ALJ erroneously analyzed Claimant’s claims of pain and placed 

improper emphasis on his ability to perform daily activities, and that the ALJ improperly assessed 

Claimant’s RFC when he failed to consider Claimant’s alleged fatigue – because the arguments are 

related and overlap in terms of the ALJ’s credibility analysis.

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medium exertion (R.34) and “[had] the residual capacity to lift and carry up to fifty pounds 

occasionally and up to twenty-five pounds frequently; stand and sit up to six hours out of an 

eight hour day; reach overhead with the right arm no more than occasionally; never climb ropes, 

ladders, or scaffolds; and [could not] work around unprotected heights or dangerous moving 

machinery.” R.31. The ALJ then concluded that Claimant was not capable of performing his 

past relevant work (R. 35) but that, considering Claimant’s age, education, work experience, and 

residual functional capacity, Claimant is capable of making a successful adjustment to other 

work. R.35-36. Therefore, the ALJ determined that Claimant is not disabled. R.36. 

Claimant filed a request with the Appeals Council for review of the ALJ’s decision but 

was denied on November 15, 2011, making the ALJ’s determination the final decision of the 

Commissioner. R.1. Claimant seeks review in this Court pursuant to 42 U.S.C. § 405(g).

B. Hearing Testimony

1. Claimant Jeffrey West

At the time of the hearing, Claimant was 52 years old, single, and living alone. R.49-51. 

Claimant graduated from high school before going to work in a factory. R.52. His past relevant 

work was as a factory quality insurance inspector, which included packing activity. R.55. 

Claimant testified that in January 2008 he was working full time, but by summer 2008 he was 

only able to work approximately 20 hours a week. R.53-54. Claimant stopped working 

completely in November 2008. Id. Claimant testified that he slowed down and eventually was 

unable to work because he had dizzy spells, felt weak and nauseous, would get drained of 

energy, and suffered abdominal pain due to his liver problem. R.56-57. Claimant testified he 

was hospitalized in October 2008 for abdominal pain and weakness and was diagnosed with 

hepatitis C. R.57-58. He was prescribed treatment and began to feel better, but then he had a 

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bad reaction and had to stop the treatment. R.58. After he stopped treatment, Claimant testified 

that he began to feel as bad as he did before he started treatment and that his symptoms get worse 

as he gets farther from taking the treatment. Id. Claimant testified he experienced periods of 

constipation followed by diarrhea. R.76-77. Claimant also had surgery on his right shoulder and 

a proposed surgery on his left shoulder was postponed due to his deteriorating health. R.63. 

Claimant testified he had difficulty lifting and could not reach above his head without his 

shoulders popping. R.64.

On an average day, Claimant gets up and attends an AA meeting in the morning for two 

hours. R.61. Then he tries to go for a walk, usually for a distance of a quarter-mile to a halfmile but not for more than a mile, and eats lunch. Id. After lunch he cannot do anything 

physical, so he reads or puts together puzzles. Id. Claimant testified that even this level of 

activity can make him winded. R.67. Claimant testified that his sickness has made driving 

difficult and that he cannot drive more than four miles because he often feels lightheaded or 

nauseous. R.51-52. Claimant testified he can do some housework; for example, he can vacuum 

one room a day when he used to be able to vacuum the whole apartment in a day. R.59. He has 

a friend who helps him do his laundry, often cooks for him, and takes him grocery shopping. Id. 

Claimant testified that he rarely cooks because he is afraid he will nod off with the stove on and 

set the house on fire. Id. He also testified he needs a friend to take him grocery shopping 

because he gets dizzy and faint waiting in line and struggles to push the cart. R.60.

2. Medical Expert Dr. Charles Metcalf

The ME testified that although Claimant’s physicians diagnosed him with a history of 

hepatitis C and hepatitis B, the most recent tests on his liver were normal: the liver was not 

palpable on examination, the albumin level was normal, the liver ebbing was normal, and his 

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enzymes were normal. R.69-70. The ME testified there was no evidence of liver failure on the 

record. R.70. The ME acknowledged that patients with hepatitis sometimes are fatigued and 

suffer abdominal and physical pain. R.73. 

The ME further stated that the results from Claimant’s most recent pulmonary function 

test were normal and contained no indication of chronic pulmonary disease, nor was there any 

evidence of such a condition in the record. R.70. The ME also testified that Claimant did have a 

past history of right shoulder surgery to correct erosion of the head of the right humerus bone but 

there was no evidence of any problems in the left shoulder. Id. The ME stated that Claimant 

exhibited anxiety and depression, but that these were mildly limiting and would not affect his 

functional capacity. R.72. Based on the medical record, the ME opined that Claimant could lift 

fifty pounds occasionally, lift twenty-five pounds frequently, reach overhead with the right arm 

only occasionally, and sit or stand for six hours. R.71. However, the ME stated that Claimant 

should avoid ladders or heights. Id.

3. Vocational Expert Robert Hammond

The ALJ questioned the VE on the availability of jobs for an individual of Claimant’s 

age, education, and work history, who could perform all exertional or non-exertional work but 

was limited to lifting no more than fifty pounds occasionally and twenty-five pounds regularly, 

who could sit and stand for six hours, who was limited to occasional overhead reaching with his 

right arm, and who could not climb ladders, scaffolds, or ropes or work around unprotected 

heights or moving machinery. R.79-80. The VE opined that Claimant could return to his past 

work as a quality control inspector. R.80. The VE testified that Claimant could also work as a 

hand packer, a merchandise deliverer, and a cleaner. Id. The VE acknowledged that a worker 

unable to operate a motor vehicle due to dizziness would be precluded from being a merchandise 

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driver. R.81. The VE also testified that a worker who had to take five to six bathroom breaks a 

day due to diarrhea, nausea, or constipation would likely be precluded from performing all of 

these jobs (R.82), as would a worker who had to miss a day or two of work a week. R.82-83. 

C. Medical Evidence

1. Evanston Northwestern Healthcare (Highland Park Hospital)

On May 9, 2008, Claimant was admitted to the emergency room at Evanston 

Northwestern Healthcare (Highland Park Hospital) with a chief complaint of abdominal pain. 

R.257. He complained of nausea, diarrhea, and epigastric discomfort since he stopped his pain 

medications cold turkey three weeks prior to this visit. Id. His tests all came back relatively 

normal, but his abdomen was very tender in the epigastrium and the left upper quadrant. R.257-

58. He was diagnosed with gastric hyperacidity and discharged that day. R.258.

2. Condell Medical Center

On June 1, 2008, Claimant was admitted to Condell Medical Center with complaints of 

more than severe ongoing right upper quadrant abdominal pain, chest pain, and sycope. R.273. 

He did not have any weight loss or blood in his bowel movement, and his labs and tests were 

relatively normal except for mild, chronic reactive gastritis in his stomach. R.271, 273. The 

record notes that Claimant had shoulder surgery in the past and that Claimant has a history of 

anxiety and gastrointestinal reflux disease. R.273. A CT scan of Claimant’s abdomen, pelvis, 

and head were normal, and a chest x-ray was negative, but x-rays showed degenerative changes 

in the left shoulder. R.316-19. His blood work was also normal, but he was admitted for further 

evaluation by a cardiologist. R.274. Dr. Raymond Chow, the cardiologist, noted that Claimant’s 

cardiac enzymes were negative and his EKG was normal. R.275. Dr. Matseshe also examined 

Claimant further about his abdominal pain and found abdominal pain with tenderness but no 

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other abnormalities. R.277. Two days later, doctors still could not find evidence of cardiac 

issues, there were no further objective findings, and an endoscopy confirmed an absence of 

gastrointestinal issues. R.320-23, 326. Claimant was discharged June 5, 2008 with a diagnosis 

of right upper quadrant abdominal pain, likely of a musculoskeletal nature, atypical chest pain, 

status post syncope, anxiety, and gastritis. R.271. The discharge instructions included an order 

for no heavy lifting. R.272.

3. John H. Stroger Jr. Hospital of Cook County

On July 28, 2008, Claimant was admitted to Stroger Hospital with right shoulder pain. 

R.342. He was diagnosed with severe erosion of articular cartilage compatible with 

osteoarthritis. Id. On July 10, 2008, Claimant was admitted to Stroger Hospital with abdominal 

pains. R.340. A stomach biopsy showed reactive gastropathy, focal intestinal metaplasia, and 

focal reactive atypia. Id. 

On October 27, 2008, Claimant was admitted to Stroger Hospital with abdominal pain, 

nausea, and vomiting. R.334. He also claimed he lost consciousness when he got off the couch 

the previous day. Id. His physical exam was unremarkable and his labs were normal. Id. He 

was discharged October 31, 2008 with a diagnosis of irritable bowel syndrome, which was likely 

causing his gastrointestinal symptoms. Id. The doctors were unable to explain his alleged 

syncopal episode (fainting). Id. Finally, he was told to follow up in the gastrointestinal 

department as an outpatient to manage his hepatitis C. Id. Although the medical report mentions 

Claimant’s hepatitis C in multiple places, it is not clear in the record how the treating physician

concluded Claimant had hepatitis C. R.332, 334. 

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4. Consultative Psychiatrist Gregory Rudolph, Ph.D

On December 5, 2008, Dr. Rudolph examined Claimant at the request of the Bureau of 

Developmental Disabilities Services (BDDS). R.373. Claimant had a history of generalized 

anxiety as well as substance abuse. Id. Claimant appeared in a “vegetative state” and was 

experiencing depression with some suicidal thoughts. Id. Dr. Rudolph found that Claimant was 

able to take care of his basic needs, Claimant could perform more advanced adaptive skills, 

Claimant’s memory skills were intact, Claimant could perform arithmetical calculations, 

Claimant was able to use good judgment and reasoning, and Claimant was capable of managing 

his own finances. Id. These advanced adaptive skills included driving, shopping, making 

change, and doing routine household chores. R.375. 

5. Consultative Physician Dr. Sergei Shevlyagin, M.D., Ph.D.

On January 8, 2009, Dr. Shevlyagin examined Claimant in his office. Claimant 

complained of abdominal pain, belching, loss of appetite, and weight loss. R.378. Claimant had 

a past medical history of hepatitis C, irritable bowel syndrome, depression, and gastritis and had 

his right shoulder surgically replaced. Id. Claimant had no chest pain or shortness of breath. 

R.379. The tests the doctor conducted came back relatively normal, with some tenderness in the 

upper right quadrant of Claimant’s abdomen. Id. Claimant was able to manipulate with fingers 

of both hands, and his grip was symmetrical and 5/5 bilaterally. Id. Claimant was able to walk 

on his own, he did not experience difficulties getting on or off the examination table, and he had 

no problem sitting up from a supine position. Id. Dr. Shevlyagin diagnosed Claimant with 

chronic hepatitis C, a history of depression, abdominal pain, and irritable bowel syndrome. 

R.380.

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6. State Agency Physicians: Donald Henson, Ph.D and Lenore Gonzales, M.D.

On December 13, 2008, Dr. Henson completed a Psychiatric Review of Claimant for his 

disability determination. Dr. Henson stated Claimant had non-severe impairments (R.359) of 

depression (R.362) and generalized anxiety disorder. R.364. He was stated Claimant had past 

substance abuse problems. R.359, 367. Dr. Henson found he had mild restriction of activities of 

daily living, mild difficulties in maintaining social functioning, mild difficulties in maintaining 

concentration, persistence, or pace, and no episodes of decompensation. R.369.

On January 16, 2009, Dr. Gonzales completed a Physical Residual Functional Capacity 

Assessment of Claimant. R.382. Dr. Gonzales diagnosed Claimant primarily with hepatitis C 

and secondarily with irritable bowel syndrome. Id. Dr. Gonzales indicated Claimant could lift 

fifty pounds occasionally (R.383), could stand, sit, or walk for about six hours of an eight-hour 

workday (Id.), could push or pull an unlimited amount (Id.), should never climb ladders, ropes, 

or scaffolds due to a history of syncope episodes (R.384), and should avoid hazards such as 

machinery or heights. R.386.

D. The ALJ’s Decision

On March 22, 2010 the ALJ issued his decision finding that Claimant has not been under 

a disability, as defined by the Social Security Act, from February 2, 2008, the alleged date of 

disability, through the date of his decision. R.26. The ALJ stated that Claimant suffers from the 

severe impairments of hepatitis C, irritable bowel syndrome, shoulder problems, and a 

respiratory condition (R.28), but that his depression and generalized anxiety are not severe. 

R.29. The ALJ found that none of Claimant’s impairments singly or in combination meet or 

medically equal one of the impairments listed in 20 C.F.R. 404, Subpart P, Appendix 1 (20 

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C.F.R. 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926). R.30. The ALJ 

concluded that despite his severe impairments, Claimant retains the RFC to perform work that 

required lifting and carrying up to fifty pounds occasionally and lift and carry up to twenty-five 

pounds frequently, sitting or standing for six of eight hours, and occasionally reaching overhead 

with his right arm but that never required climbing ropes, ladders, or scaffolds or working around 

moving machinery or unprotected heights. R.31. Based on the RFC, the ALJ conceded that 

Claimant cannot perform his past work (R.35), but found that Claimant can perform work as a 

hand packer, merchandise deliverer, or cleaner. R.36. 

At step one, the ALJ found that Claimant has not engaged in substantial gainful activity 

since February 2, 2008, the alleged onset date. R.28. At step two, the ALJ found that Claimant 

has severe impairments, including hepatitis C, irritable bowel syndrome, a respiratory condition, 

and shoulder problems. Id. The ALJ concluded that these impairments are severe because they 

more than minimally affect Claimant’s functional work abilities. R.29. However, the ALJ found 

that Claimant’s mental impairments of general anxiety and depression are non-severe because 

they do not cause more than a minimal limitation in Claimant’s ability to perform basic mental 

work activities. Id. The ALJ reasoned that Claimant’s mental impairments only cause a mild 

limitation in terms of daily living, social functioning, concentration, persistence, or pace, and 

decompensation because: (1) Claimant needs a friend to help him complete daily activities and 

has trouble sleeping, but he can independently care for his personal needs, prepare simple meals, 

perform light housework, and take walks daily; (2) Claimant has a friend who helps him with his 

daily activities, he attends church and AA meetings regularly, and his sister stated he socializes

with others in his building; (3) Claimant can drive and shop for groceries, take care of his own 

finances, read his mail, and write his own checks; and (4) Claimant has experienced no extended 

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episodes of decompensation. Id. In coming to this conclusion, the ALJ afforded great weight 

both to the ME’s testimony based on the record that Claimant does not have any functional 

limitations due to his mental impairments and to the State agency physician’s opinion that 

claimant’s mental impairments are not severe. R.30.

At step three, the ALJ concluded that Claimant does not have an impairment or 

combination of impairments that meets or medically equals any of the listed impairments in 20 

C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 404.1520(d), 404.1525, 404.1526, 

416.920(d), 416.925, and 416.926). Id. The ALJ then considered Claimant’s RFC and 

concluded that Claimant has “the residual functional capacity to lift and carry up to fifty pounds 

occasionally and up to twenty-five pounds frequently; stand and sit up to six hours out of an 

eight hour day; reach overhead with the right arm no more than occasionally; never climb ropes, 

ladders, or scaffolds; and cannot work around unprotected heights or dangerous moving 

machinery.” R.31. In evaluating the effect of Claimant’s symptoms on his RFC, the ALJ 

followed a two-step process, first determining if the symptom can be linked to an underlying 

medically determinable impairment, and next assessing the “intensity, persistence, and limiting 

effects” of the symptom. Id. If the statements about the “intensity, persistence, or functionally 

limiting effects” are not substantially supported by objective medical evidence, the ALJ must 

assess the credibility of the statements based on the entire case record. Id. 

The ALJ concluded that Claimant’s impairments could reasonably be expected to cause 

the alleged symptoms; however, the ALJ found that the medical evidence and objective findings 

“do not support the existence of limitations greater than those determined in this decision.” 

R.33. After thoroughly analyzing the Claimant’s testimony as well as the medical evidence, the 

ALJ determined the Claimant’s “subjective complaints of disabling pain and symptoms are not 

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entirely credible, nor are they fully supported by the objective medical evidence and subjective 

factors in the record.” Id. The ALJ pointed to several inconsistencies in the hearing and the 

medical record, including the diagnosis of hepatitis B and C but no current liver abnormalities 

and disabling pain, nausea, and dizziness but the ability to complete activities of daily living. 

R.32-34.

At step four, the ALJ concluded that, based on his RFC, Claimant could not perform his 

past work. R.35. However, at step five the ALJ ultimately concluded that considering 

Claimant’s age, education, work experience, and RFC, Claimant is capable of making a 

successful adjustment to other work. R.36. Therefore, the ALJ determined that Claimant is not 

disabled under sections 216(i), 223(d), or 1614(a)(3)(A) of the Social Security Act. Id. 

II. LEGAL STANDARD

A. Standard of Review 

The “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). A decision by an ALJ becomes 

the Commissioner’s final decision if the Appeals Council denies a request for review. Sims v. 

Apfel, 530 U.S. 103, 106-07 (2000). Under such circumstances, the district court reviews the 

decision of the ALJ. Id. Judicial review is limited to determining whether the decision is 

supported by substantial evidence in the record and whether the ALJ applied the correct legal 

standards in reaching his decision. Nelms v. Astrue, 553 F.3d 1093, 1097 (7th Cir. 2009). 

Substantial evidence is “such relevant evidence as a reasonable mind might accept as 

adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). A “mere 

scintilla” of evidence is not enough. Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir. 2992). Even 

when there is adequate evidence in the record to support the decision, however, the findings will 

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not be upheld if the ALJ does not “build an accurate and logical bridge from the evidence to the 

conclusion.” Berger v. Astrue, 516 F.3d 539, 544 (7th Cir. 2008). If the Commissioner’s 

decision lacks evidentiary support or adequate discussion of the issues it cannot stand. Villano v. 

Astrue, 556 F.3d 558, 562 (7th Cir. 2009). 

Though the standard of review is deferential, a reviewing court must “conduct a critical 

review of the evidence” before affirming the Commissioner’s decision. Eichstadt v. Astrue, 534 

F.3d 663, 665 (7th Cir. 2008). It may not, however, “displace the ALJ’s judgment by 

reconsidering facts or evidence, or by making independent credibility determinations.” Elder v. 

Astrue, 529 F.3d 408, 413 (7th Cir. 2008). Thus, judicial review is limited to determining 

whether the ALJ applied the correct legal standards and whether there is substantial evidence to 

support the findings. Nelms, 553 F.3d at 1097. The reviewing court may enter a judgment 

“affirming, modifying, or reversing the decision of the [Commissioner], with or without 

remanding the cause for a rehearing.” 42 U.S.C. § 405(g).

B. Disability Standard

Disability insurance benefits are available to a claimant who can establish she is under a 

“disability” as defined in the Social Security Act. Liskowitz v. Astrue, 559 F.3d 736, 739-40 (7th 

Cir. 2009). “Disability” means an “inability to engage in any substantial gainful activity by 

reason of any medically determinable physical or mental impairment which can be expected . . . 

to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). An 

individual is under a disability if she is unable to do her previous work and cannot, considering 

her age, education, and work experience, partake in any gainful employment that exists in the 

national economy. 42 U.S>C. § 423(d)(2)(A). Gainful employment is defined as “the kind of 

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work usually done for pay or profit, whether or not a profit is realized.” 20 C.F.R. § 

404.1572(b). 

A five-step sequential analysis is utilized in evaluating whether a claimant is disabled. 20 

C.F.R. § 404.1520(a)(4)(i-v). Under this process, the ALJ must inquire, in the following order: 

(1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a 

severe impairment; (3) whether the claimant’s impairment meets or equals a listed impairment; 

(4) whether the claimant can perform past relevant work; and (5) whether the claimant is capable 

of performing other work. Id. Once the claimant has proven she cannot continue her past 

relevant work due to physical limitations, the ALJ carries the burden to show that other jobs exist 

in the economy that the claimant can perform. Schmidt v. Astrue, 496 F.3d 833, 841 (7th Cir. 

2007). 

III. DISCUSSION

The Claimant raises the following issues in support of his motion: (1) whether the ALJ 

committed legal error by failing to include Claimant’s mental limitations in his RFC assessment; 

(2) whether the ALJ committed legal error in assessing the credibility of Claimant’s complaints; 

and (3) whether the Court should remand the matter under Sentence Six of 42 U.S.C. § 405(g) to 

consider new evidence. 

A. The ALJ’s Failure To Mention Claimant’s Mild Limitation In Mental Functioning In 

His RFC Assessment Is Harmless Error

Claimant asserts that the ALJ erred by failing to include Claimant’s mild limitations with 

regard to his activities of daily living, social functioning, and concentration, persistence, or pace 

in his RFC assessment. A claimant’s RFC is an assessment of what he or she can do despite his 

or her limitations. SSR 96-7p. When assessing a claimant’s RFC, an ALJ must consider “. . . 

limitations and restrictions attributable to medically determinable impairments.” Id. If the ALJ 

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finds a combination of medically severe impairments, like the ALJ did in this case (R.28), “the 

combined impact of the impairments will be considered throughout the disability determination 

process.” 20. C.F.R. § 404.1523. Thus, an ALJ must consider all limitations, including those 

that are non-severe, in assessing a claimant’s RFC. Golembiewski v. Barnhart, 322 F.3d 912, 

918 (7th Cir. 2003) (citing 20 C.F.R. § 404.1523). Here, the ALJ determined in his decision that 

Claimant had no more than a mild limitation with regard to performing daily activities, social 

functioning, and concentration, persistence, or pace; however, the ALJ did not include these 

limitations in Claimant’s RFC assessment. Since the ALJ did not include these mild limitations 

in his RFC assessment, the ALJ erred. Id.

However, this error is harmless in the context of the case. The Seventh Circuit has stated 

that “when it is plain, as it is in this case, that the administrative law judge’s factual 

determinations would compel a denial of benefits under the new regulations as well as under the 

old, the doctrine of harmless error . . . would spare us from having to order a remand in any 

event.” Keys v. Barnhard, 327 F.3d 990, 994-94 (7th Cir. 2003). “If the outcome of a remand is 

foreordained, we need not order one.” Sahara Coal Co. v. Office of Workers Compensation 

Programs, U.S. Dept. of Labor, 946 F.2d 554, 558 (7th Cir. 1991). 

In this case, the ALJ’s factual determinations would compel a denial of benefits 

regardless of whether he specifically addressed the Claimant’s mental limitations in his RFC 

analysis, so the harmless error rule applies. First, it is important to note that the ALJ did not 

completely ignore Claimant’s mild mental limitations in assessing his RFC. Although the 

Claimant’s mental limitations were not the ALJ’s primary focus in his RFC assessment, the ALJ 

acknowledged his duty to consider these limitations in his assessment. After determining 

Claimant’s mental limitations, the ALJ stated, “the following residual functional capacity 

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assessment reflects the degree of limitation the undersigned has found in the “paragraph B” 

mental function analysis.” R.30. In his RFC analysis, the ALJ also mentions Claimant’s

complaint that he is “slowly running out of will.” R.32. Despite this claim, though, the ALJ 

stated Claimant takes care of his personal needs and socializes with friends. R.34. This suggests 

that the ALJ did take Claimant’s mild mental limitations into account but decided that they 

would not affect the ALJ’s RFC assessment in light of Claimant’s daily activities. The ALJ’s 

failure to address the mental limitations more specifically in his assessment is harmless error.

The ALJ concluded based on the objective medical evidence and the ME’s testimony that 

Claimant’s mental impairments were non-severe and that Claimant only had at most mild 

limitations due to these impairments. R.30. The ME testified that Claimant’s mental health 

“was not really” an issue and that Claimant was, “at most, mildly limited” in this area, so he 

would not include mental limitations in his functional capacity assessment “as any limitation.” 

R.72. The ALJ afforded this opinion great weight because the ME based his opinion on his 

review of the evidence in the entire record, including Claimant’s testimony. R.30. No treating, 

consulting, or reviewing physician ascribed functional limitations to Claimant’s alleged mental 

impairments. R.30, 72, 371, 373-77. This evidence all suggests that Claimant’s mental 

limitations had very little, if any, impact on his ability to function. In light of the ME’s 

testimony and the lack of any functional limitations to Claimant’s mental impairments in the 

medical record, the outcome of this case on remand would be the same. Therefore, the ALJ 

committed harmless error in failing to consider Claimant’s mild mental limitations specifically in 

his RFC assessment. See Sahara Coal, 946 F.3d at 558.

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B. The ALJ Did Not Erroneously Assess The Credibility Of Claimant’s Subjective 

Complaints Under SSR 96-7p.

Claimant asserts that the ALJ did not adequately evaluate the credibility of Claimant’s 

claims of disabling pain and symptoms under SSR 96-7p because (1) the ALJ’s failure to explain 

his conclusion that Claimant’s complaints and allegations were not credible denied Claimant a 

full review of his claim; (2) the ALJ failed to analyze Claimant’s complaints of pain as required 

by SSR 96-7p; (3) the ALJ erred by concluding Claimant could sustain full-time work because 

he could perform certain activities of daily life; (4) the ALJ erred by failing to consider his 

complaints of fatigue and frequent need to use the restroom in determining his RFC; and (5) the 

ALJ erred by holding Claimant to a higher burden of proof than preponderance of the evidence. 

When faced with a claimant alleging subjective symptoms, an ALJ must evaluate the 

credibility of the claimant’s testimony about his symptoms. SSR 96-7p. The ALJ must consider 

the testimony in light of the entire record and be “sufficiently specific” as to the reasons for his

credibility determination. Id. The ALJ is in the best position to observe the witnesses, so his

credibility finding will not be overturned as long as it has some support in the record. Dixon v. 

Missouri, 270 F.3d 1171, 1178-79 (7th Cir. 2001). “An ALJ is in the best position to determine 

a witness’s truthfulness and forthrightness; thus, this court will not overturn an ALJ’s credibility 

determination unless it is ‘patently wrong.’” Skarbek v. Barnhart, 390 F.3d 500, 504-05 (7th Cir. 

2004) (quoting Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001)). A discrepancy between 

the alleged symptoms and the medical evidence is probative that a claimant may be exaggerating 

his condition. Powers v. Apfel, 207 F.3d 431, 435-36 (7th Cir. 2000). The Seventh Circuit has 

stated that “applicants for disability benefits have an incentive to exaggerate their symptoms,” 

and therefore, “an administrative law judge is free to discount the applicant’s testimony on the 

basis of other evidence in the case.” Johnson v. Barnhart, 449 F.3d 804, 805 (7th Cir. 2006).

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In evaluating a claimant’s credibility, the ALJ must comply with SSR 96-7p and 

articulate his reasons for his credibility evaluation. Brindisi v. Barnhart, 315 F.3d 783, 787 (7th 

Cir. 2003). The ALJ’s determination “must contain specific reasons for the finding on 

credibility, supported by the evidence in the case record, and must be sufficiently specific to 

make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to 

the individual’s statement and the reasons for that weight.” Id. at 787 (citation omitted). The 

“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). Substantial evidence is “such relevant 

evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. 

Perales, 402 U.S. 389, 401 (1971).

In this case, the ALJ’s decision is supported by substantial evidence. The ALJ pointed to 

evidence in the medical record and from Claimant’s own testimony that contradicts Claimant’s 

self-reported symptoms. The ALJ acknowledged Claimant’s complaints that he felt “sick 

constantly,” had “severe stomach pain,” was “constantly violently sick,” and had “stomach pain 

which prevents him from resting well.” R.31-32. The ALJ then examined the medical evidence, 

determining that “the objective findings in this case fail to provide strong support for the 

claimant’s allegations of disabling symptoms and limitations.” R.32. The ALJ pointed to the 

fact that Claimant’s physical exams and tests in 2008 and 2009 “returned with normal results” 

and were “unremarkable” and his only restriction was “to avoid heavy lifting.” R.32-33. 

Despite his complaints of increasing severe abdominal pain at one hospital visit, Claimant’s 

“physical examination and labs were essentially normal.” R.33. The ALJ noted that although

Claimant had a history of hepatitis B and C, his tests “did not show any liver abnormalities.” 

R.34. The only restriction that ever was placed on Claimant was to avoid heavy lifting, and this 

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restriction was not mentioned in later medical records. Id. The ALJ concluded that “the lack of 

functional restrictions by the Claimant’s treating physicians is contradictory to his subjective 

complaints of disabling symptoms and an inability to perform any work.” Id.

Claimant argues that the lack of functional restrictions is not instructive in this case 

because Claimant was not working at the time of his hospital visits, so the doctors would have 

had no reason to restrict his ability to work. See Eskew v. Astue, 2011 WL 6009005 at *3 (7th 

Cir. 2011) (holding it was improper for an ALJ to discredit Claimant’s credibility based on a lack 

of work restrictions when he was unemployed at the time). Claimant was working at least parttime until November 2008. R.53. When Claimant visited various hospitals in May, June, July, 

and October of 2008 (R.257-58, 272, 334), he was not unemployed, so it was proper for the ALJ 

to base his credibility assessment partly on the lack of functional restrictions in Claimant’s 

medical records.

The ALJ also pointed to Claimant’s activities of daily living as inconsistent with his 

alleged “total disability and an inability to perform work activities at any exertional level.” R.34. 

Claimant testified that he walks at least a quarter of a mile daily, completes light meal 

preparation, does laundry, vacuums, grocery shops, and attends AA meetings. Id. Claimant also 

testified that he completes puzzles and can walk about a mile. R.32. The ALJ found that these

activities “are not as limited as one would expect, given the claimant’s allegations of disabling 

symptoms.” R.34. 

Claimant argues that the ALJ erred by concluding that Claimant was able to sustain fulltime work because he was able to perform certain daily activities. Had the ALJ based his 

credibility assessment on this evidence alone, then this may have been a problem. In this case, 

however, the ALJ based his determination not only on the Claimant’s testimony about his 

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activities of daily living but also on the objective medical evidence, the lack of functional 

restrictions in the medical record, and the ME’s testimony. “It is only when the ALJ’s 

determination lacks any explanation or support that [the court] will declare it to be ‘patently 

wrong.’” Elder v. Astrue, 529 F.3d 408, 413-14 (7th Cir. 2008) (citation omitted). Here, the 

ALJ built “an accurate and logical bridge from the evidence to the conclusion.” Berger v. 

Astrue, 516 F.3d 539 (7th Cir. 2008). Claimant failed to establish that the ALJ’s credibility 

assessment was “patently wrong.” See Cook v. Astrue, 800 F.Supp. 2d 897, 908-09 (N.D. Ill. 

2001). 

Claimant argues that the ALJ erred in not considering his symptoms of fatigue and 

frequent need to use the bathroom in assessing his RFC. Claimant failed to present “medical 

evidence to support this claimed limitation.” Spencer v. Astrue, 776 F. Supp. 2d 640, 650 (N.D. 

Ill. 2011) (citing Denton v. Astrue, 596 F.3d 419, 424 (7th Cir. 2010)); see also Castile v. Astrue, 

617 F.3d 923, 927 (7th Cir. 2010) (“It is [claimant], however, who bears the burden of proving 

that she is disabled, and she failed to present any medical evidence linking her chronic fatigue 

syndrome to the unacceptable level of absenteeism she alleges.”). “That fatigue is a common 

symptom . . . reveals nothing about the severity, intensity, or persistence of fatigue that any 

individual may experience at a particular point in time. Milliken v. Astrue, 397 F. App’x 218, 

223 (7th Cir. 2010). The ME testified that fatigue can sometimes be a symptom of hepatitis C 

and that Claimant may have it, but there is no evidence specifically that he does. R.73. 

The ALJ did not ignore the alleged fatigue symptoms; rather, the ALJ lists fatigue

multiple times as one of Claimant’s complaints, mentioning that “he feels weak most of the 

time” (R.31), “his weakness prevents him from doing very many activities” (R.32), and “he is so 

fatigued.” Id. The ALJ stated that his activities of daily living, including walking at least a 

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quarter of a mile daily, doing household chores, and driving to AA meetings, contradict his 

allegations of “totally disabling symptoms,” of which fatigue is one. R.34. Thus the ALJ did not 

err because he in fact did consider Claimant’s symptoms of fatigue in making his RFC 

assessment.

Claimant argues that the ALJ erred in failing to consider Claimant’s frequent need to use 

the restroom as a result of his IBS in assessing Claimant’s RFC. The ALJ must only articulate, 

“at some minimum level, his analysis of the evidence to allow the appellate court to trace the 

path of his reasoning.” Diaz v. Chater, 55 F.3d 300, 307-08 (7th Cir. 1995). The Seventh 

Circuit stated that “the ALJ’s failure to address [certain] specific findings . . . does not render his 

decision unsupported by substantial evidence because an ALJ need not address every pieve of 

evidence in his decision.” Sims v. Barnhart, 309 F.3d 424, 429 (7th Cir. 2002). Thus the ALJ 

did not necessarily err by failing to consider the evidence on Claimant’s frequent restroom use.

Although the ALJ did not talk about Claimant’s need to use the bathroom specifically, he 

did extensively discuss Claimant’s testimony. For example, the ALJ stated that Claimant “feels 

sick constantly” (R.31), “feels severe stomach pain” (id.), “vomits frequently” (id.) is “constantly 

violently sick,” and “has stomach pain which prevents him from resting well.” Id. The ALJ 

points to Claimant’s subjective reports of disabling stomach pain as inconsistent with Claimant’s 

testimony that he can walk at least a quarter of a mile daily (R.32) and complete daily activities 

like “light meal preparation, light housework including laundry and vacuuming, grocery 

shopping, and attending AA meetings.” R.34. Also, the ALJ pointed to evidence in the record 

that Claimant can walk as much as one mile (R.32), puts together puzzles (id.), “takes care of his 

personal needs fairly well, drives a car, and socializes with friends.” R.34. 

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Claimant argues that ALJ should have addressed the VE’s testimony that someone using 

the restroom “three or four times above and beyond the two breaks and the lunch period that’s 

allowed” would “exceed the amount of time that would be allowed for most positions” at the 

SVP level. R.82. However, the record does not support Claimant’s need to use the restroom so 

many times during the workday. Claimant testified he gets constipated and can go five to seven 

days without using the bathroom followed by diarrhea. R.76-77. Claimant also testified that he 

“frequently” has to use the bathroom, but he did not specify how frequently. R.77. There is 

nothing in the record as to how frequently Claimant needs to use the restroom. Thus the ALJ did 

not err in failing to consider the VE’s testimony about the impact of frequent restroom use on 

Claimant’s RFC.

Finally, Claimant argues that the ALJ erred by applying an incorrect evidentiary standard 

in assessing Claimant’s credibility. The ALJ must base his credibility determination “on the 

prepondernce of the evidence offered at the hearing or otherwise included in the record.” 20 

C.F.R. § 404.953(a). In his opinion, the ALJ said that Claimant’s subjective complaints were 

“not ‘fully’ supported by the objective medical evidence and the subjective factors in the 

record.” R33. Claimant argues that his complaints did not have to be “fully supported” but 

rather only supported by a preponderance of the evidence. Reviewing the ALJ’s opinion, it is 

not apparent that the ALJ used a more exacting standard than preponderance of the evidence. At 

an earlier point in his opinion, the ALJ states, “the medical findings do not support the existence 

of limitations greater than those reported above.” R.32. Later, the ALJ concludes, “the objective 

medical evidence does not provide a basis for finding limitations greater than those determined 

in this decision.” R.33. This language suggests that the ALJ was in fact reviewing the evidence 

under the proper standard and found there was no support for Claimaint’s complaints in the 

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medical record. As discussed above, there is substantial evidence supporting the ALJ’s 

conclusion on Claimant’s credibility. Therefore, the Court cannot say the ALJ applied an

incorrect evidentiary standard in assessing Claimant’s credibility. 

After careful review of the ALJ’s opinion, the Court finds there is substantial evidence in 

the record that supports the ALJ’s findings on Claimant’s credibility.

C. A Sentence Six Remand Is Not Warranted Because Claimant Failed To Show Good 

Cause For The Delay In Incorporating The Evidence

Claimant asserts that the Court should remand this matter under Sentence Six of 42 

U.S.C. § 405(g) to consider the functional capacity assessment completed by Dr. Melissa 

Inpanbutr-Martinkus, M.D., in April 2011. Sentence Six of 42 U.S.C. § 405(g) states that a 

Court may remand a matter to the Commissioner “upon a showing that there is new evidence 

which is material and that there is good cause for the failure to incorporate such evidence into the 

record in a prior proceeding . . .” 42 U.S.C. § 405(g). A claimant must show there is a 

reasonable probability the ALJ would have concluded differently had he or she considered the 

new evidence at the time of the decision. Sears v. Bowen, 840 F.2d 394, 399-400 (7th Cir. 

1988). “[N]ew evidence is material only if it is relevant to the claimant’s condition ‘during the 

relevant time period encompassed by the disability application under review.’” Schmidt v. 

Barnhart, 395 F.3d 737, 742 (7th Cir. 2005) (quoting Kapusta v. Sullivan, 900 F.2d 94, 97 (7th 

Cir. 1989)). 

Claimant argues there is new material evidence that may have caused the ALJ to 

conclude differently. In September 2010, Dr. Inpanbutr-Martinkus examined Claimant’s left 

shoulder and found “severe narrowing of the left shoulder joint with marginal osteophyte 

formation and osteosclerosis.” R.415. In April 2011, she completed a Physical Residual 

Functional Capacity Questionnaire, in which she stated that Claimant was limited to reaching 

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overhead with his left arm for ten percent of an eight-hour day. R.414. At the hearing, 

Claimant complained of left shoulder pain and limited use of his left arm (R.66) and said he was 

scheduled to have surgery on his left shoulder at some point (R.76), but the ALJ did not limit 

Claimant’s lifting or reaching with his left arm in his RFC assessment. R.31. As Dr. InpanbutrMartinkus’ assessment supports Claimant’s claims during his original testimony, it is reasonable 

that the condition she found existed at the time of the original hearing. Had the ALJ heard this 

objective medical evidence, he may or may not have concluded differently about how much 

Claimant could use his left arm. 

However, Claimant has not shown there was good cause for his year and a half delay in 

providing this evidence. At the end of the administrative hearing in September 2009, the ALJ 

stated that he would delay closing the record for thirty days to provide Claimant with the 

opportunity to submit additional material to support his disability claim. R.87. Claimant did not 

submit new records then or ask for more time to do so. Rather, he submitted new records to the 

Appeals Council in October 2011, over a year and a half after the ALJ’s decision. R.4, 252. 

“Where, as here, the reasons for pursuing additional evidence are apparent while the case is still 

subject to administrative review, and there is no impediment to obtaining the evidence, no good 

cause has been demonstrated for failing to bring the evidence to the Secretary’s attention.” 

Anderson v. Bowen, 868 F.2d 921, 928 (7th Cir. 1989).

In this case, Claimant testified that he had surgery scheduled for his left shoulder but had 

to put it on hold because of his illness. R.76. However, Claimant did not submit any medical 

records to corroborate this statement. The ALJ provided Claimant with time to amend his claim 

with new evidence, which Claimant failed to do in the given time, and Claimant has not provided 

any reason for the delay in providing this evidence. Claimant reasonably should have been able 

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to provide records from the doctor who examined his left shoulder in the thirty day time period. 

“Because [Claimant] could have presented such evidence earlier but did not do so, good cause 

has not been established.” Mowery v. Apfel, 2000 WL 12828, at *3 (7th Cir. Jan. 3, 2000). Thus 

a Sentence Six remand is inappropriate.

IV. CONCLUSION

For the reasons set forth above, Claimant’s motion for summary judgment is denied and 

the decision of the Commissioner of Social Security is affirmed.

It is so ordered.

_________________________________

Jeffrey T. Gilbert

United States Magistrate Judge

Dated: August 19, 2013

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