IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

TRACEY M. TOOLEY, )

)

Plaintiff, )

)

v. ) No. 12-cv-1050

)

MICHAEL J. ASTRUE, ) Magistrate Judge Susan E. Cox

Commissioner of Social Security, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff Tracey M. Tooley seeks judicial review of a final decision by the Commissioner of

Social Security, Michael J. Astrue (“Commissioner”), denying her application for Disability

Insurance Benefits (“DIB”) under the Social Security Act. The Commissioner has also filed a motion

for summary judgment. For the reasons discussed herein, the plaintiff's motion to remand is denied

[dkt. 27] and the Commissioner’s motion for summary judgment is granted [dkt. 30]. 

I. Procedural History 

On April 1, 2009, plaintiff filed an application for DIB and a period of disability beginning

on September 29, 2007.1

 She alleged an inability to work due to depression and Bipolar 1 disorder.2

Plaintiff's claim was denied on July 30, 2009.3 Plaintiff then filed a request for reconsideration

within the permitted 60 days following the Notice of Disapproved Claim, which was again denied

1

R. at 202.

2

R. at 230. 

3

R. at 133.

Page 1 of 22
on December 23, 2009.4

 On February 17, 2010, plaintiff requested a hearing before an

Administrative Law Judge (“ALJ”).5

Plaintiff's request was granted and a hearing took place before ALJ Marlene R. Abrams on

July 15, 2010 in Orland Park, Illinois.6 Also appearing at the hearing was an impartial vocational

expert (“VE”), Pamela Tucker, and medical expert (“ME”), Larry Kravitz, M.D.7

 Following the

hearing, the ALJ issued an unfavorable decision, finding plaintiff not disabled at anytime from

September 29, 2007, through the date of the decision, September 23, 2010.8 Plaintiff filed a request

for review of the ALJ's decision with the Office of Social Security Administration Appeals Council

(“Appeals Council”) on November 4, 2010.9

 The Appeals Council denied plaintiff's request for

review on December 22, 2011.10 Thus, the ALJ's September 23, 2010 decision stands as the final

decision of the Commissioner.11 Plaintiff filed this action on February 10, 2012.

II. Background Facts

The facts set forth under this subsection provide a brief review of the plaintiff's background

and the events that led to her application for DIB. They are derived from the medical record, which

the ALJ reviewed at the hearing on July 15, 2010 and considered when rendering her decision on

September 23, 2010.

4

R. at 145.

5

R. at 148.

6

R. at 36.

7

Id.

8

R. at 13.

9

R. at 10.

10R. at 1.

11R. at 13.

Page 2 of 22
Plaintiff was born on March 25, 1977, making her thirty-three years of age on the date the

ALJ issued her final decision.12 She received her GED and had been going to college on and off

from 1996 to roughly 2005.13 Between May 1996 and June 2010, she held nine different jobs:

customer service representative, warranty clerk, receiving clerk, receptionist, call center operator,

bank teller, stock person at a department store, telemarketer, cashier, and waitress.14 These jobs

required her to interact with customers in person and over the phone, enter data into computers,

clean, stock, and collect money.15

On her first disability report, plaintiff indicated that she began experiencing bipolar disorder

and depression on September 29, 2007.16 She claimed that these ailments did not allow her to work

a job because the illnesses caused her to have attendance problems.17 She also claimed that these

ailments prevented her from interacting with customers and other people in her work environment

and, therefore, she could not hold a steady job.18

A. Pre-filing Medical History

A review of plaintiff's medical records prior to her application for disability helps to set the

framework for her overall medical history. We first mention a few ancillary records that begin in

April 2007. This is when she visited Victoria Adeleye, M.D. regarding a sore throat.19 A physical

exam showed signs of anemia, shoulder pain, obesity, and neurotic depression.20 Plaintiff was

12R. at 202.

13R. at 50,

14R. at 52, 54 - 55, 58, 59, 237-41, 243-46.

15Id. 

16R. at 226.

17R at 59.

18R. at 79-81

19R. at 442.

20R. at 443.

Page 3 of 22
prescribed medication for her obesity and for her depression.21 On June 7, 2007, plaintiff was seen

again, and her medications were increased.22 Around this same time, plaintiff also visited Brian

Becker, M.D.23 During her three visits with Dr. Becker, she was diagnosed with major depressive

disorder and obesity, and notes indicate that she believed, “the onset of the depression [had] been

gradual and occurring in an intermittent pattern for years.”24 Dr. Becker initially prescribed her

Zoloft for her depression, and increased her prescription on both subsequent visits.25

Then in 2008, plaintiff began seeing Nagarakanti Nageswara Rao, M.D. at Gateway

Foundation’s Aurora Treatment Center (“Gateway”).26 Plaintiff visited Dr. Rao eighteen times

between February 26, 2008 and June 3, 2009 and through the course of treatment she was prescribed

the following medications for her depression and sleep deprivation: Zoloft, Abilify, Trazodone,

Trileptal, Lithium, Wellbutrin, Geodon, Remerol, Depakote, and Klonopin.27 During these visits,

plaintiff complained that she had symptoms of mood swings and problems sleeping.28 There are also

records during this time period of her visits to her therapist, also at Gateway. These treatment notes

reflect plaintiff’s ongoing progress, but an inability to “complete treatment goals” because she was

moving out of the coverage area.29 It was during this course of treatment that plaintiff applied for

disability benefits. 

21Id.

22R. at 435.

23R. at 463.

24Id.

25R. at 460, 462, 464. 

26R. at 521.

27R. at 497-508.

28Id.

29R. at 534.

Page 4 of 22
B. Post-filing Medical History

By July 2009 plaintiff had changed treatment centers to Aunt Martha’s Medical Center

(“Aunt Martha’s”) because she had moved and her address was no longer in the coverage area of

Gateway.30 But there are few treatment records from Aunt Martha’s before records show that she

was evaluated by the SSA; on July 27, 2009, plaintiff underwent a Mental Residual Functional

Capacity Assessment for the Social Security Administration (“SSA”), performed by Donald Henson,

PH. D.31 Dr. Henson’s overall review was that plaintiff “possesses sufficient cognitive and

attentional abilities to perform simple routine activities” and that her skills would be adequate “for

vocational involvement.”32 He also performed a psychiatric review of plaintiff, also for the SSA, and

found that she had a “disturbance of mood” and “bipolar syndrome” but found no marked functional

limitations.33 On December 20, 2009, Lionel Hudspeth, Psy. D., reviewed Dr. Henson’s findings,

and signed a document affirming his opinion.34 He further concluded that plaintiff was credible, her

condition “well controlled,” and that she was “able to prepare meals,” perform “household chores,

shop, read and watch television.”35

Between October 15, 2009 and March 25, 2010, Plaintiff had four visits with J. Hussain,

Psy.D. at Aunt Martha’s.36 During these visits, Dr. Hussain prescribed plaintiff Seroquel, Cymbalta,

and Klonopin.37 While seeing Dr. Hussain, plaintiff complained of problems sleeping and mood

30R. at 568.

31R. at 539.

32R. at 539. 

33R. at 544. 

34R. at 557.

35R. at 557. 

36R. at 560-563.

37Id.

Page 5 of 22
swings.38 Dr. Hussain also noted that plaintiff had been off of her medications for two or three

months prior to her first visit.39

One year later plaintiff began seeing Julia Drake, a Licensed Clinical Social Worker

(“LCSW”), at Aunt Martha’s, though it is not clear how often. Relevant to her application for

disability, however, is that she initiated treatment with her on July 9, 2010, and four days later Ms.

Drake filled out an impairment questionnaire for the SSA.40 This questionnaire is important because

it is the only record that finds plaintiff unable to work. Specifically, the form indicates her

impairments prohibit her from working “more than three times a month.”41 Ms. Drake also checked

the following boxes on the form: mood disturbance, constantly changing emotions, social

withdrawal, decreased energy, recurrent panic attacks, inability to experience pleasures, irrational

fears, psychomotor agitation, generalized persistent anxiety, feelings of guilt/worthlessness,

difficulty concentrating, and hostility and irritability.42 Ms. Drake noted that plaintiff’s ability to

tolerate stress was severely impacted, and that plaintiff was a severe insomniac.43

C. July 15, 2010 ALJ hearing

Plaintiff's hearing before the SSA took place on July 15, 2010.44 Plaintiff appeared in person

and was represented by her attorney, Andrew Barone.45 A VE, Michelle Peters, and an ME, Larry

Kravitz, M.D., testified as well.

38Id.

39R. at 563.

40R. at 576.

41R. at 577. 

42Id. 

43R. at 577.

44R. at 36.

45Id.

Page 6 of 22
Plaintiff first responded to questions from the ALJ. She discussed her schooling history and

her previous work.46 Plaintiff explained that she was fired from several jobs because she missed

work.47 Plaintiff explained that she had three children, two of live with her, and the other child lives

with her ex-husband.48 The ALJ then had plaintiff explain her capabilities; she can drive, can shop

at the grocery store once a month, and can go to doctors appointments but misses some.49 Plaintiff

stated that she cared for the children by herself with her mother’s assistance.50Plaintiff stated that

her daughter failed seventh grade because she did not do her homework and plaintiff did nothing to

help.51 Plaintiff stated that she moved recently because her unemployment benefits ran out and she

did not pay her rent.52 Plaintiff testified that she was back on unemployment and agreed that she was

required to continue to look for work to receive benefits.53

The ALJ then asked about her medical care.54 Plaintiff stated that she visited her primary care

physician about four times a year, visited her psychiatrist every two months, and visited her

counselor every two weeks.55 Plaintiff explained that she was taking the following drugs for

depression: Seroquel, Klonopin, and Cymbalta.56 In addition to taking the medication, she testified

that she began seeing a psychiatrist in 2008.57 Plaintiff explained that she no longer drank, and she

46R. at 51, 54. 

47R. at 56, 59. 

48Id.

49R. at 63-4.

50R. at 63.

51R. at 67. 

52R. at 64.

53R. at 65.

54R. at 69.

55R. at 70.

56R. at 71.

57R. at 74.

Page 7 of 22
also has not taken recreational drugs.58 Plaintiff explained that her psychiatrist once asked her to

check into a psychiatric ward but she did not follow his instructions.59

After the ALJ’s examination, plaintiff’s attorney questioned her. Plaintiff explained that the

onset of her symptoms occurred when her son was born, seven years earlier.60 Plaintiff talked about

not following through on plans and having problems with promiscuity.61 Plaintiff stated that she

lacked the motivation to deal with social interactions such as talking with family or household

chores such as laundry.62 Plaintiff explained that when she got a new job, at first she would be

excited to work, but as time passed she barely made it to work on time, and some days she did not

get out of bed at all.63 Plaintiff explained that she held many jobs in 2000 and 2001 because she had

attendance problems.64 Plaintiff discussed visits with her psychiatrist, and that she felt that she never

found the right balance of medication.65

The ME testified that he found more severe restrictions on plaintiff’s psychiatric evaluation

form than those given by Dr. Henson.66 The ME gave plaintiff “approaching moderate” restrictions

in activities of daily living; moderate restriction in concentration, persistence, and pace; and a mild

restriction in social functioning.67 The ME also noted that plaintiff would be limited to working in

an environment with simple instruction on a sustained basis, and brief and superficial workplace

contact.68 He further explained that plaintiff needed to work in an environment where she was not

58R. at 75.

59R. at 76.

60R. at 76.

61R. at 77, 78. 

62R. at 79-81.

63R. at 81-82.

64R. at 82.

65R. at 85, 86. 

66R. at 87, 89.

67R. at 89.

68Id.

Page 8 of 22
required to work with others.69 He further explained that she could only deal with ordinary levels

of work stress, and that the LCSW’s presentation described more severe limitations in functioning

than the body of the medical evidence indicated.70

Plaintiff’s attorney next read the ME a description of Bipolar 1 and the ME agreed it was

consistent with the plaintiff’s symptoms.71 The ME agreed that it was possible that the claimant may

cycle between emotional states.72 Plaintiff’s attorney asked the ME to explain the meaning of

plaintiff’s global assessment functioning (“GAF”) score of 50.73 The ME explained that it signals

a moderate level of dysfunction.74The ME then stated that plaintiff had a severe impairment and

there was a possibility the record supported plaintiff having to miss a day of work every month, if

the review were to include Ms. Drake’s opinion.75

The ME further explained that the January 28, 2010 medical record showed plaintiff had

improvement because plaintiff would wake up every one to two hours but fall asleep easily.76

Plaintiff’s attorney posited, and the ME agreed, that there is evidence in the same note that showed

plaintiff may not have gotten better.77 Still, the ME testified that though evidence from Aunt

Martha’s pointed to mixed improvement, he still believed that the opinion of the LCSW, Ms. Drake,

conveyed a higher severity than the other doctors.78

69R. at 91.

70Id.

71R. at 95.

72R. at 97. 

73R. at 101. 

74 Id.

75R. at 104.

76R. at 105.

77R. at 109.

78R. at 111.

Page 9 of 22
The ALJ next examined the VE, who listed and classified plaintiff’s jobs according to their

level of difficulty and required skill set.79 The ALJ posed several hypotheticals, with the VE

suggesting that plaintiff could work as a packer, a laundry worker, or a night store laborer.80 The VE

noted that the job selection would not change if the hypothetical worker could only have brief and

superficial contact with coworkers, but the amount of positions would be reduced.81

There was also continued testimony regarding counsel’s proposed hypothetical of a person

who cries every time that person receives criticism, and absenteeism.82 The VE said that a worker

would not be able to miss more than one day a month.83 Regarding the crying, the VE testified that

it depends on the frequency and intensity of the crying, explaining that if an employee were off task

more than 10% of the time, then their employment would be problematic and possibly

unsustainable.84

D. September 23, 2010 ALJ decision

In her decision dated September 23, 2010, the ALJ ruled that plaintiff was not disabled under

216(i) and 223(d) of the Social Security Act.85 The ALJ’s decision followed a five-step sequential

evaluation process for determining whether plaintiff is disabled.86 The first step found that plaintiff

engaged in substantial gainful activity because she made $15,250.40 in 2008.87 However, the ALJ

stated there had been a continuous 12-month period during which plaintiff did not engage in

79R. at 113-4.

80R. at 115-6.

81R. at 116. 

82Id. 

83Id. 

84R. at 129. 

85R. at 16.

86R. at 17.

87R. at 18.

Page 10 of 22
substantial gainful activity.88 In step two, the ALJ found that plaintiff had severe impairments:

bipolar disorder, borderline personality traits, and alcohol abuse.89 The ALJ stated,

The record shows that the claimant is obese and has had some

complaints of back pain and shoulder pain. However, I find that these

are non-severe impairments as they have not been shown to cause

more than minimal limitations on the claimant’s abilities to perform

work related activities.90

In step three, the ALJ found that plaintiff did not have an impairment or combination of

impairments noted in Title 20 of the Code of Federal Regulations, Part 404, Subpart P, Appendix

1.91 The ALJ stated that she used Listings 12.04 for affective disorders and 12.09 for substance

addiction disorders.92 The ALJ stated that while plaintiff had limitations, she was still able to

perform routine activities, get along with authority figures, and follow through on some plans.93 The

ALJ also found that plaintiff did not satisfy the “C criteria” because plaintiff’s disorder did not have

repeated episodes of decompensation.94

The ALJ then determined plaintiff’s residual function capacity (“RFC”).95 An RFC is “an

assessment of an individual's ability to do sustained work-related physical and mental activities in

a work setting on a regular and continuing basis.”96 The ALJ found that plaintiff had the RFC to

perform a full range of work at all exertional levels, but with the following non-exertional

limitations: “simple, routine, repetitive tasks with only occasional decision making required and only

88Id.

89Id.

90R. at 19.

91Id.

92Id.

93Id.

94R. at 20.

95R. at 17. 

96SSR 96-8p.

Page 11 of 22
occasional changes in the work setting with co-workers as well as only brief and superficial

interactions with the public, co-workers, and supervisors, and not work in tandem with others.”97

The ALJ found that plaintiff’s allegations were not fully credible regarding the severity and

persistence of her symptoms and the functional limitations they caused.98 The ALJ based this

decision on plaintiff’s visits with the psychiatrist that showed stable findings, her lack of

hospitalization for psychiatric treatment, and lack of medication during the severe moments of her

ailment.99 The ALJ explained that the ME was given “great weight.”100 The ALJ stated that the

opinion of Ms. Drake was given little weight because Ms. Drake was not an acceptable medical

source, no longitudinal treatment had been established at the time of her report, and her clinical

findings were not supported by the record.101

In step four, based on the VE’s testimony, the ALJ held that plaintiff was unable to perform

any past work.102 In step five, the ALJ held that there are jobs that exist in significant numbers in the

national economy that plaintiff can perform.103

III. Standard of Review 

The Court performs a de novo review of the ALJ's conclusions of law, but the ALJ's factual

determinations are entitled to deference.104 The Court will uphold the ALJ's decision if it is

supported by substantial evidence.105 Substantial evidence means “such evidence as a reasonable

97R. at 20.

98R. at 25.

99R. at 25.

100R. at 26.

101Id.

102R. at 27. 

103Id.

104Lauer v. Apfel, 169 F.3d 489, 492 (7th Cir. 1999).

105Rohan v. Carter, 98 F.3d 966, 970 (7th Cir. 1996). 

Page 12 of 22
mind might accept as adequate to support a conclusion.”106 Where conflicting evidence allows

reasonable minds to differ, the responsibility for determining whether a plaintiff is disabled falls

upon the Commissioner (or ALJ), not the courts.107 Even so, the decision of the Commissioner is not

entitled to unlimited judicial deference.108 The ALJ must consider all relevant evidence in the record,

and may not select and discuss only that evidence that favors his or her ultimate conclusion.109

IV. Analysis 

Plaintiff argues that the ALJ’s decision must be remanded because the ALJ erred by: (1)

failing to properly consider Ms. Drake’s opinion; (2) failing to properly evaluate plaintiff’s

credibility; (3) improperly considering plaintiff’s obesity in combination with her other impairments;

and (4) improperly accounting for plaintiff’s limits in concentration, persistence, or pace in her RFC

determination.

A. Consideration of Ms. Drake 

In her opinion the ALJ held that Ms. Drake was “not identified as a psychologist or a

psychiatrist” and, therefore, was “not an acceptable medical source under the regulations.”110

Plaintiff argues that this was error. The ALJ’s statement, however, is indeed correct. The regulations

distinguish between medical evidence from “acceptable medical sources” - such as licensed

physicians - and what the regulations call “not ‘acceptable medical sources’” or “other medical

sources,” which includes licensed social workers.111 But we agree with plaintiff that the ALJ failed

106Id. (quoting Edwards v. Sullivan, 985F.2d 334, 336 (7th Cir. 1993). 

107Herr v. Sullivan, 912 F.2d 178,181 (7th Cir. 1990). 

108Nelson v. Apfel, 131 F.3d 1228, 1235 (7th Cir. 1997). 

109Herron v. Shalala, 19 F3d 329, 333 (7th Cir. 1994).

110R. at 26. 

111SSR 06-03P. 

Page 13 of 22
to note one important point; the regulations still use evidence from these “other sources” to “show

the severity of the individual’s impairment(s) and how it affects the individual’s ability to

function.”112

For example, the Social Security Regulations themselves recognize, 

‘[w]ith the growth of managed health care in recent years and the emphasis

on containing medical costs, medical sources who are not ‘acceptable

medical sources,’ such as ... licensed clinical social workers, have

increasingly assumed a greater percentage of the treatment and evaluation

functions previously handled primarily by physicians and psychologists.113

There is no doubt, then, that Ms. Drake qualifies as a treating source. And had the ALJ

simply found Ms. Drake to be “not an acceptable medical source” and assigned her “little weight”

with no additional explanation, such a conclusion would perhaps warrant remand.

The ALJ, however, provided two additional reasons for discrediting Ms. Drake: there had

been no longitudinal treatment established between Ms. Drake and plaintiff when Ms. Drake

documented her opinion, and no clinical findings in the record supported the severe findings that Ms.

Drake noted.114 We first turn to whether it was appropriate for the ALJ to discredit Ms. Drake’s

opinion for its lack of “longitudinal treatment.” Plaintiff argues that despite Ms. Drake having only

met plaintiff four days before providing her assessment to the SSA, she could have based her

findings on the year long treatment history plaintiff had at the clinic. This may be true, but there is

no indication that Ms. Drake relied on any previous treatment history, or that there was much

112SSR 06-03P.

113SSR 96-03p; see also Downie v. Astrue, 2010 WL 1257774, *11 (N.D. Ill. March 24, 2010)(citing the

rule). 

114R. at 26. 

Page 14 of 22
treatment history to rely on at Aunt Martha’s. In fact, Ms. Drake stated in the RFC form that

plaintiff’s GAF score for the past year was unavailable.115

That brings us to the ALJ’s third reason for discrediting Ms. Drake’s assessment, which is

the lack of clinical findings to “support such severe findings as Ms. Drake opined.”116 Even if Ms.

Drake did rely on the records from that year period at Aunt Martha’s, there are only a limited few.

Dr. Hussain initially noted plaintiff’s complaints of “racing thoughts,” that she did not leave her

home, and that she felt like a “zombie.”117 But the next report found plaintiff was “getting better”

and “sleeping better.”118 Even if considered, these do not corroborate Ms. Drake’s more extreme

report, as the ALJ stated.

Plaintiff also makes the argument that a consideration of both Aunt Martha’s and Gateway’s

records would support Ms. Drake’s RFC report. Plaintiff then references the ME’s testimony, who

was given “great weight” by the ALJ, and who acknowledged that Mr. Drake’s assessment was

“more consistent” with plaintiff’s own testimony about her limitations.119 But these points do not

invalidate the ALJ’s given reasons: there is no evidence of longitudinal history or clinic records that

support all of Ms. Drake’s findings. Even the ME stated that Ms. Drake’s “testing describes more

severe limitations in functioning that the body of the medical evidence indicates.”120 

An ALJ must “articulate a reasonable basis for rejecting other medical source opinions” that

is “grounded in substantive evidence in the record.”121 Here, the ALJ had two supported reasons to

115Id.

116R. at 26. 

117R. at 561. 

118R. at 560. 

119R. at 104. 

120R. at 91. 

121Frame v. Astrue, 11-1062-W TL, 2012 WL 3637583, *9 (S.D. Ind. Aug. 21, 2012). 

Page 15 of 22
discount Ms. Drake’s findings. With no longitudinal view of plaintiff’s treatment history122 and no

indication that Ms. Drake relied on past records to support her finding, the ALJ’s decision must be

upheld. 

B. Credibility 

Plaintiff next argues that the ALJ failed to consider that her impairment would necessarily

produce good days and bad days. She also claims that the ALJ improperly discredited her for taking

a customer service job for a short time, when she testified that she did it only because she was

financially desperate. 

As always in these cases, we must reiterate the standard under which we review credibility

determinations: with deference. SSR 96-7p states that the ALJ’s written decision “must contain

specific reasons for the finding on credibility...and must be sufficiently specific to make clear...the

weight the adjudicator gave to the individual’s statements and the reasons for that weight.”123 We

will reverse an ALJ’s credibility assessment only if it is so lacking that it is “patently wrong.”124 As

the reviewing court, we give the ALJ’s determination “special deference,”125 because “the ALJ is

in the best position to see and hear the witness and determine credibility.”126

First, the ALJ found plaintiff’s allegations “not fully credible” because her medical history

was more stable than her testimony indicated.127 The ALJ explained that plaintiff’s complaints

revealed that sometimes “she is doing better and other times...she is doing worse.”128 But then the

122See Cirelli v. Astrue, 751 F.Supp.2d 991, 1005 (N.D. Ill. Nov. 18, 2010) (noting that “[i]f a medical

source's opinion provides no longitudinal view, ‘the very reasons the Social Security regulations set out for giving

substantial weight to a treating physician's opinion are absent.’”) 123 SSR 96-7p, 1996 WL 374186, at 2; see also Brindisi ex. Rel. Brindisi v. Barnhart, 315 F.3d 783, 787

(7th Cir.2003).

124 Id. at 1162.

125 Castile v. Astrue, 617 F.3d 923, 929 (7th Cir.2010).

126 Shramek v. Apfel, 226 F.3d 809, 811 (7th Cir.2000).

127R. at 25.

128R. at 25.

Page 16 of 22
ALJ explained that plaintiff’s psychiatric visits showed stable findings during mental examinations,

plaintiff was never hospitalized, no side effects from medications were reported, and the one noted

low GAF score was due to plaintiff having been off her medications for 2 to 3 months prior.129

We acknowledge the Seventh Circuit’s view when assessing chronic disease, especially

bipolar disorder. Often, it is a difficult analysis because an individual with this impairment is likely

to have “better days and worse days,” and may respond “erratically to treatment.”130 In that context,

the Seventh Circuit has emphasized the importance of the treating doctor’s opinion regarding

whether the individual can work full-time.131 (But ultimately the determination is reserved solely to

the Commissioner).132

With the exception of Ms. Drake’s single report, plaintiff does not rely on a particular treater

that should have been credited by the ALJ, but was not.133 Instead, plaintiff argues that because the

ALJ acknowledged that there will be good days and bad days, plaintiff will not likely be able to

sustain work. But we do not believe that one statement alone, acknowledging the realistic difficulties

of plaintiff’s impairment, constitutes a finding that the ALJ was “patently wrong” in her decision

to credit plaintiff with certain limitations, and not with others. 

The ALJ gave some weight to the State agency psychological consultant, Dr. Henson, who

found plaintiff could perform simple, routine activities and that her skills were “adequate for

vocational involvement,” yet she also found plaintiff “more limited” than his findings.134 The ALJ

129R. at 25-26. 

130Bauer v. Astrue, 532 F.3d 606, 609 (7th Cir. 2008).

131Id. 132Id (citing Robson v. Astrue, 526 F.3d 389, 393 (8th Cir. 2008)). 

133See, e.g., Bauer, 532 F.3d at 609(attacking the ALJ’s decision to discredit the two treating doctor’s

opinions). 134R. at 24. 

Page 17 of 22
also relied on the ME, who testified that while there was “some evidence of waxing and waning

symptoms,” plaintiff’s depression appeared to have improved on medication. The ME testified that

her impairment was not “severe enough to completely restrict her from being able to perform work

activities.”135 The ALJ credited these statements over plaintiff’s testimony that there were times

when she could not get out of bed.136

Next, plaintiff takes issue with the ALJ’s comment that her choice to work at “a job

involving customer service” undermined her testimony “that she has a problem working with

people.”137 We note the ALJ also recognized plaintiff’s explanation that “she took the job in 2010

because she has two children and did not have any other choice,” stating that though plaintiff did

not think she could hold down a job, “she had to do something.”138 Finally, the ALJ found these

latter statements to be in contrast with her certifications to receive unemployment, which requires

her to certify her ability to work.139

We have more difficulty with this reasoning. This Circuit has found that “a desire to work,

by itself, should not be used as a negative credibility factor because a desire to work does not

necessarily imply an ability to work.”140 But the ALJ’s consideration of plaintiff’s certification for

purposes of unemployment benefits is also a proper credibility consideration, though not

determinative. The court in Schmidt v. Barnhart articulated this point:

while we have previously held that “employment is not proof positive of

ability to work,” we are not convinced that a Social Security claimant's

135R. at 25.

136R. at 26. 

137R. at 18. 

138R. at 21. 

139R. at 26. 

140Ison v. Astrue, No. 10-0711, 2012 WL 832983, *9 (N.D. Ill. March 12, 2012).

Page 18 of 22
decision to apply for unemployment benefits and represent to state authorities

and prospective employers that he is able and willing to work should play

absolutely no role in assessing his subjective complaints of disability.141

The ALJ was not, therefore, in error when she noted the potential contradiction. Regarding the

ALJ’s single statement questioning the customer service job, this is slightly confusing because the

ALJ was both acknowledging plaintiff’s claims that she had no choice but to take the job, and also

questioning her credibility based on her choice to take that particular type of job. Despite what is

perhaps an unclear point made by the ALJ, we cannot say that the ALJ was “patently wrong.”

Ultimately, the ALJ relied more heavily on the State agency physicians, and the ME, who both

concluded that plaintiff could perform work. The ALJ also explained why she gave those opinions

more weight than plaintiff’s claim that she only worked out of desperation, but could not keep a job.

C. Obesity

Plaintiff also argues that the ALJ failed to consider plaintiff’s obesity in combination with

her bipolar disorder. Here, the ALJ found plaintiff’s obesity, as well as her back and shoulder pain,

to be non-severe impairments. Plaintiff did not claim, at any point, that her inability to work related

to her physical impairments or, specifically, obesity. Rather, her focus was consistently on her

mental impairments.143 Plaintiff would like us to follow our same analysis in Fleming v. Astrue,

where we remanded for an evaluation of the claimant’s obesity.144 But that case is factually distinct.

There, the claimant’s obesity was a severe impairment and there was confusion regarding her actual

BMI, and whether the ALJ relied on the proper calculation.145 There is simply no similarity here

where, even if we remanded for more discussion on obesity, the ALJ would have no additional - or

141395 F.3d 737, 746 (7th Cir. 2005) (quoting Wilder v. Apfel, 153 F.3d 799, 801 (7th Cir.1998)).

143R. at 21.

144No. 10-3043, 2011 WL 1793260, *10 (N.D. Ill. May 10, 2011). 145Fleming, No. 10-3043, 2011 WL 1793260 at 10. 

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different - medical evidence or testimony to assess. As noted by the Commissioner, the ALJ found

that plaintiff’s obesity and physical ailments “did not cause more than minimal limitations” on her

ability to work,146 and no treating, consulting, or reviewing physician opined otherwise. 

D. Plaintiff’s limitations in “concentration, persistence, or pace” 

Plaintiff argues that the ALJ found she had moderate limitations in maintaining

concentration, persistence, or pace but, because the limitation was not explicitly stated in the RFC

determination, remand is required. After noting the “paragraph B” criteria of Listing 12.04 - of

which one was plaintiff’s “moderate limitation” in concentration, persistence or pace - the ALJ

stated that she accounted for those limitations in concluding plaintiff’s RFC to be limited to, 

simple, routine, repetitive tasks with only occasional decision making

required and only occasional changes in the work setting as well as only brief

and superficial interactions with the public, co-workers, and supervisors, and

not work in tandem with others.147

Then, when the ALJ questioned the VE, she limited her hypothetical to the following, 

simple, routine and repetitive tasks where only occasional decision-making

is required and only occasional changes in the work setting and that the

claimant has only occasional interaction with the public...

We find no support for plaintiff’s position that the ALJ was required to include an explicit limitation

in concentration, persistence or pace in the RFC and, therefore, in the hypothetical to the VE. “It is

true that a valid hypothetical question must ordinarily include limitations that an ALJ finds for a

claimant’s RFC.”148 Here, the hypothetical was “entirely consistent” with the ALJ’s RFC finding.149

146R. at 19. 

147R. at 26. 

148Allbritten v. Astrue, No. 11-116, 2012 WL 243566, *7 (N.D. Ind. Jan. 25, 2012).

149See Allbritten v. Astrue, No. 11-116, 2012 WL 243566 at *7(noting nearly identical findings by the ALJ

and using the same language in the hypothetical). 

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Our sister court has already addressed this same issue in Allbritten v. Astrue.

150 In that case, like

here, the ALJ limited plaintiff to simple, unskilled work in the RFC, but had found her to have

“moderate difficulties with regard to concentration, persistence, or pace” earlier in the decision. In

reviewing the ALJ’s decision, the Allbritten court stated that the limitation in concentration,

persistence, or pace was “made in the context of analyzing, at step three, whether plaintiff’s

condition met or equaled a listing.”151That is precisely what happened here. And just as in Allbritten,

here plaintiff relies O’ConnorSpinner v. Astrue to claim that remand is warranted for the sole reason

that the ALJ did not include a hypothetical to the VE with moderate limitations in concentration,

persistence, or pace.

152 But the two cases are distinct. The ALJ in O’ConnorSpinner had, in fact,

listed that limitation in the claimant’s RFC, so it was incumbent upon the ALJ to include all RFC

limitations in the hypothetical.153 Because we did not have that omission here, there is no basis for

remand on this point. 

150No. 11-116, 2012 WL 243566. 

151Allbritten v. Astrue, No. 11-116, 2012 WL 243566 at *7. 

152Id. 

153See O'Connor-Spinner v. Astrue, 627 F.3d 614, 620 (7th Cir. 2010) (finding that “there may be instances

where a lapse on the part of the ALJ in framing the hypothetical will not result in a remand. Yet, for most cases, the

ALJ should refer expressly to limitations on concentration, persistence and pace in the hypothetical in order to focus

the VE's attention on these limitations and assure reviewing courts that the VE's testimony constitutes substantial

evidence of the jobs a claimant can do.”)

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V. Conclusion

For the reasons set above, the plaintiff's motion to remand is denied [dkt. 27] and the

Commissioner’s motion for summary judgment is granted [dkt. 30]. 

IT IS SO ORDERED.

Date: June 4, 2013 _____________________

Susan E. Cox 

U.S. Magistrate Judge 

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