IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

WESTERN DIVISION

Brent Allen Fiori, )

)

Plaintiff, )

)

v. ) No. 12 CV 50148

) Honorable Iain D. Johnston

Carolyn W. Colvin, ) U.S. Magistrate Judge

Commissioner of Social Security, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

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

remand of the decision by Respondent, Carolyn W. Colvin, Acting Commissioner of 

Social Security (“Commissioner”),1 denying the Claimant’s application for both 

disability insurance benefits and supplemental security income payments under the 

Social Security Act (“SSA”). This matter is before the Court on cross-motions for 

summary judgment. (Dkt. #15, 20, 21).

The Claimant argues that the Commissioner’s decision denying his

application for benefits should be reversed or remanded for further proceedings 

because the Administrative Law Judge’s (“ALJ”) decision is not supported by 

substantial evidence and is contrary to law.2 The Commissioner argues that the 

1 Commissioner Carolyn W. Colvin has been automatically substituted as the Defendant-Respondent 

pursuant to Federal Rule of Civil Procedure 25(d).

2 The Court notes that Claimant’s memorandum in support of his motion for summary 

judgment is missing page 3. Dkt. #15. Because the memorandum purports to be just over 

four pages long, the absence of the page and any arguments contained therein results in a 

substantial loss. Neither Defendant nor Plaintiff made note of the missing page in their 

subsequent filings.

1

 
ALJ’s decision should be affirmed because it is supported by substantial evidence. 

For the reasons set forth more fully below, the Claimant’s motion for summary 

judgment is denied, and the Commissioner’s motion is granted. 

I. BACKGROUND

A. Procedural History

The Claimant filed an application for disability on October 25, 2005, alleging 

a disability onset date of September 26, 2005, due to being bi-polar and suffering 

from back pain. R. 106, 123. On February 10, 2006, the application was denied. R. 

70. The Claimant filed a timely request for a hearing on May 31, 2006. R. 89. The 

ALJ conducted a hearing on November 7, 2007 in Evanston, Illinois. R. 11. The 

Claimant and Vocational Expert William Newman testified at the hearing. R. 15 –

38, 38 - 53.

On November 28, 2007, the ALJ issued a decision denying the claim for 

benefits. R. 58. On December 7, 2007, the Claimant filed a timely request to review 

the ALJ’s decision, which apparently was misplaced. R. 8-9. On November 11, 2009, 

nearly two years later, Claimant’s counsel contacted the Appeals Council, seeking a 

status of the appeal. R. 8. Two-and-a-half years later, on March 20, 2012, the 

Appeals Council denied the review, making the ALJ’s decision the final decision of 

the Commissioner. R. 1. Thereafter, on April 30, 2012, the Claimant filed this 

appeal pursuant to 42 U.S.C. §405(g). Dkt. #1. This matter was transferred to the 

undersigned on May 3, 2013. Dkt. #25.

2
B. Hearing Testimony

1. Claimant

Counsel represented the Claimant at his hearing on November 7, 2007. R. 11. 

At that hearing, the Claimant testified to the following. 

The Claimant was 47 years old at the time of the hearing. R. 15. The 

Claimant was a high school graduate, and attended some college. The Claimant 

testified that his earnings began to decrease in about 2004 because his problems 

were progressive. R. 16, 22. 

The Claimant testified that his previous employment included work as a 

machinist, during which time, he would be required to lift anywhere between 20 

and 50 pounds often. R. 17. The Claimant also worked on plastic injection 

machines, which involved faster work and constant lifting of up to 50 pounds. R. 18-

19. The Claimant also worked as a night stock supervisor, which was manual work 

that required repetitive kneeling, bending, twisting and pushing. R. 19. 

Additionally, the Claimant worked as a bartender, serving drinks and stocking the 

bar, including changing kegs. R. 20. For a beverage distribution company, the 

Claimant made deliveries and loaded and unloaded trucks. R. 21. He also worked 

as a line cook. R. 22. 

The Claimant testified that his lower back hurt as a result of a previous 

vehicle accident. R. 23. The Claimant described the feeling as if a knife was going 

through his hips and as if a “giant hand [was] squeezing the air out of [his] lungs.” 

R. 23. According to the Claimant, the pain level was a nine on a ten point scale. 

3
However, the Claimant admitted that the pain did not travel down his legs and that 

he only took ibuprofen and aspirin for the pain. R. 23-24. 

To alleviate the pain, the Claimant said that would consistently have to lay 

on the floor for 15 – 20 minutes at random times throughout the day. R. 24. He 

would lay down 4 – 5 times a day. R. 30. He claimed to be able to walk or stand for 

only 10 – 15 minutes at a time and if seated, needed to adjust his position every 10 

– 15 minutes. R. 24. Similarly, the Claimant asserted that he avoided lifting 

anything greater than 5 pounds “at all costs.” R. 25.

According to the Claimant, he slept very little, and that when he was awake 

he would just walk around the house, lay on the floor and stretch. R. 25. He 

described these activities as “shuffling around the house.” R. 32. At the hearing, 

the Claimant testified that his mother shopped for him and did his laundry. R. 25. 

Also during the hearing, the Claimant asserted that he had not driven, shopped or 

done laundry for over two years. R. 26. According to the Claimant, he hardly ever 

left the house. R. 26. In fact, the Claimant testified he went days without leaving 

the house. R. 33. He said he did not like being around people. R. 34. 

The Claimant testified to his manic-depression, for which he was taking 

medication; namely 80 milligrams of Geodon every day for a year and a half. R. 26 

– 27. According to the Claimant, his concentration was affected. R. 27. For 

example, the Claimant testified that when he was watching television, he could not 

always remember what he was watching. R. 31. According to the Claimant, he 

4
would have highs and lows that would last for weeks. R. 33. But he admitted that 

his medication “even[ed] it out a little bit.” R. 34. 

The Claimant testified that he was previously a member of an Italian men’s 

social club, but he did not renew his membership. R. 28.

The ALJ questioned the Claimant regarding notations in the record 

regarding allegations of past cocaine and alcohol use. R. 35 – 37. The Claimant 

testified that he did not use cocaine at all and very rarely had a beer. R. 35. In fact, 

the Claimant “guaranteed” the ALJ that he had not used cocaine in over 5 years. R. 

36. When the ALJ confronted the Claimant with the records showing that he said 

he had used cocaine within the previous 5 years, the Claimant asserted that the 

records were incorrect and speculated that the counselor who wrote the information 

was retaliating against him for filing a grievance against her. R. 36 – 37. 

Additionally, when questioned about why the Claimant’s long standing problems 

did not prevent him from working until 2004, the Claimant testified that he “tried 

to work through a lot of that stuff.” R. 38.

2. Vocational Expert

A vocational expert, William Newman, also testified at the hearing. R. 38 –

53. Initially in his testimony, Mr. Newman characterized and categorized the 

Claimant’s prior work history. R. 39 – 42. According to Mr. Newman, the Claimant 

had no transferable skills and could not perform his past relevant work. R. 44, 45.

Eventually, the ALJ asked Mr. Newman if jobs existed under the following 

circumstances: the work was sedentary, with no repetitive bending, twisting or 

5
carrying above ten pounds; the work was unskilled, routine, repetitive, and involved 

little judgment and only infrequent interaction with others; and the work was 

limited based upon the GAFs assigned to the Claimant in the record. R. 47. 

According to Mr. Newman, thousands of unskilled sedentary level work existed in 

the Chicago/Rockford area, including bench assemblers. R. 47. However, no jobs 

would exist if the hypothetical person also needed to lay down four to five times a 

day at unpredictable times for up to 15 minutes each time. R. 48.

C. Medical Evidence

Three sets of relevant medical records exist in this matter, although neither 

set is very extensive. One set of medical records relate to the Claimant’s back 

problems. Nearly all of these records are from the Claimant’s chiropractor, Dr. 

Michael Papke. The other set of medical records relate to the Claimant’s mental 

condition. The documents relating to his medical condition were created by various 

mental health professionals at the Janet Wattles Center. The final set of records 

was created by the state-agency consultants. 

1. Medical Records Relating to Lumbar Degenerative Disc Disease

With regard to the Claimant’s back problems and pain, the record contains 

documents from Dr. Michael Papke. R. 202-220. But only a few of these documents 

are dated around the alleged onset date. And these documents are not very 

detailed, generally just stating that the Claimant had low back pain or similar 

complaints. R. 219. The record also contains a November 30, 2005 letter that the 

Claimant had “many episodes of low back pain due to degenerative disc in the 

6
lumbar spine.” R. 236. According to the letter, Dr. Papke had seen the Claimant 

five (5) times in the previous six (6) months. R. 236. Dr. Papke indicated that most 

of the Claimant’s pain occurred at the L4-5 levels. R. 236. The letter concluded by 

stating the Claimant “responds well to treatments and exercise” and “[h]e is treated 

on an add [sic] needed basis.” R. 236. Finally, also included in the record was a 

“return to work” form for the Claimant, dated February 27, 2006, which stated the 

Claimant could return to light work, but was restricted to “no repetitive bending, 

twisting, or lifting of anything greater than 5 lbs.” R. 270. No further information 

was provided. 

2. Medical Records Relating to Bipolar Disorder

On October 6, 2005, an initial assessment (screening) was created by Jennifer 

Schmidt of the Janet Wattles Center. R. 224-28. The document indicated that the 

Claimant was suffering from periods of depressed mood, feeling hopeless as well as 

periods of increased energy and irritability. R. 224. The Claimant’s chronic back 

pain was noted. R. 224. As to drug and alcohol use, the October 6, 2005 assessment 

indicated that the Claimant used alcohol two (2) to three (3) times a week, and 

cocaine once a month – the most recent use being the previous week. R. 225. The 

assessment included a “mental status exam” that indicated that the Claimant’s 

mood was depressed. R. 226. Similarly, the Claimant had suicidal thoughts but no 

plan or intent. R. 226. This assessment provided the Claimant with a GAF of 50. 

R. 227. 

7
On October 28, 2005, a second assessment was created by Lynn Pollock of the 

Janet Wattles Center. R. 229-33. This assessment indicated that the Claimant has 

been having mood swings for most of his life, but never previously treated for 

mental illness. He described his periods of highs and lows. R. 229. According to 

this document, “[The Claimant] . . . admits to using cocaine and his last use was two 

weeks ago. He also reports that he drinks beer.” R. 229. This assessment stated 

that the Claimant last used cocaine two (2) weeks previously, that he used cocaine 

on the weekends, but that the Claimant was vague and defensive about his use of 

cocaine. R. 230. As to alcohol use, the assessment indicated that the Claimant 

admitted to drinking beer the previous night, but said he “may have a beer or two 

on the week end and then none for two weeks.” R. 230. As to the Claimant’s 

“mental status exam,” this assessment noted that his interview behavior was 

“overly dramatic.” R. 231. Unlike the previous assessment in October, this 

assessment indicated that the Claimant did not have suicidal thoughts. R. 231. 

This assessment increased the Claimant’s GAF to 55. R. 232. This assessment 

concluded by noting that the Claimant was being referred to substance abuse 

treatment and that he would not receive a mental health screening before 

completing that process. R. 233. Upon being notified of this process, the Claimant 

became defensive and irritable and requested to see another staff member. R. 233. 

Although the Claimant was scheduled for a mental health assessment on November 

16, 2005, he was informed that he would need to complete substance abuse 

screening first. R. 233. 

8
On November 16, 2005 – the date the Claimant was scheduled for a mental 

health assessment – the Claimant was a “no-show.” R. 234. 

On December 6, 2005, Richard Parsons, LCPC/LPHA, of the Janet Wattles 

Mental Health Center, completed a mental health assessment of the Claimant. R. 

244-50. The Claimant was referred to the Health Center by the Public Defender’s 

Office because the Claimant had recently been charged with felony driving after 

revocation. R. 244. The assessment noted that the Claimant attended the Verdi 

Club3 where he played bocce ball and had a few friends and “a lot of acquaintances.” 

R. 245. The assessment found “no evidence of any psychosis, hallucinations, or 

delusions.” R. 245. Additionally, the Claimant’s “memory for immediate, recent, 

and typically for remote issues [was] intact.” R. 245. The assessment found that 

the Claimant was inclined to “rationalize his behaviors and to thereby justify 

breaking the law.” R. 246. The assessment noted the Claimant’s work history, 

stating that he frequently quit jobs and on occasion had “been fired from jobs for 

reasons he typically describe[d] as being unfair.” R. 244. According to the 

assessment, the Claimant gave “an account of jobs he . . . had and the reasons why 

he quit the jobs – it seems he . . . never maintained a job for more than four years.” 

R. 246. The assessment stated that the Claimant “seem[ed] to always quit for 

reasons that are good to him but might seem imprudent for most people.” R. 247. 

Similarly, the assessment noted that the Claimant lost a recent job because he 

failed to go to work for a few days when he had the flu and relied upon a friend to 

3 The Verdi Club is an Italian men’s social club on the Rock River in Rockford, Illinois. See 

www.rockfordverdiclub.com. 

9

 
communicate that to his employer. R. 247. The assessment also noted that the 

Claimant claimed to have “been involved in a lot of busy activity at home helping 

his mother clean up her house and sort things about for Goodwill and the Salvation 

Army.” R. 246. The assessment also referred to the Claimant’s legal problems 

including “felony charges for repeated driving after revocation of his license.” R. 

247. The assessment also described the Claimant’s substance use and abuse. 

According to the assessment, “The client admits that he smoked pot in high school 

and that he has made use of beer throughout his adult life, but denies that he 

abuses beer.” R. 247. Although the Claimant denied purchasing cocaine, he 

admitted to using it and said he would not refuse it if offered. R. 247. The 

assessment referenced that the Claimant had previously admitted to using cocaine 

as recently as November 2005. R. 247. With regard to his physical health, the 

assessment discussed the Claimant’s back problems. The assessment noted that he 

had seen a chiropractor regarding his back injury and that the “adjustments 

seem[ed] to help.” R. 248. For diagnostic impressions, the assessment noted that 

the Claimant was suffering from bipolar II disorder and personality disorder not 

otherwise specified. R. 249. The assessment indicated a GAF of “50/78”. R. 249.

On January 10, 2006, a psychiatric evaluation of the Claimant was completed 

by Dr. Uma Srivastava of the Janet Wattles Center. R. 238-39. The Claimant had 

been referred for the evaluation by the court hearing his traffic violation. R. 238. 

The Claimant again described his mood swings and his belief that he might have 

bipolar disorder. R. 238. Despite his previous assessments, the Claimant denied 

10
currently using cocaine. R. 238. As to employment history, the evaluation states 

the following: “The patient has had various jobs including wanting to have his own 

business but he does not get along with people or gets quite irritated or manic 

which is why he loses his jobs.” R. 238. As to the Claimant’s mental status, the 

evaluation provides the following: “Young man neatly dressed. Alert and oriented 

to time, place, and person. Speech coherent and goal directed. Mood is not 

depressed. Affect appropriate to ideation. Comes across as fairly intelligent. 

Denies hallucinations or delusions. Not suicidal, not homicidal. Seems to have 

good insight and judgment.” R. 238. The evaluation gave the Claimant a current 

GAF of 50. R. 239.

On February 14, 2006, Dr. Srivastava completed a psychiatric medication 

monitoring form. R. 237. According to Dr. Srivastava, since the Claimant was put 

on Geodon he was feeling a little better, and was “not as high or low.” R. 237. As to 

the Claimant’s mental status, Dr. Srivastava wrote the following: “Comes across as 

alert and oriented to time, place, and person. Speech coherent and goal directed. 

Mood is not depressed. Affect appropriate to ideation. Not manic, not psychotic. 

Seems to have good insight and judgment.” R. 237.

Finally, on April 26, 2006, counselor Teresa Salvig wrote that the Claimant 

was diagnosed with bipolar disorder and had been prescribed Geodon. According to 

Ms. Salvig, the Claimant successfully completed group and individual counseling. 

R. 271. 

11
3. State Agency Consultant Records

The record contains reports from three (3) state agency consultants. These 

documents address the Claimant’s back problems as well as his mental health. 

According to a December 22, 2005 psychiatric review by Dr. Ronald Haven Ph.D., 

the Claimant possessed a “medically determinable impairment” that did “not 

precisely satisfy the diagnostic criteria;” namely, bipolar disorder not otherwise 

specified and mood disorder not otherwise specified. R. 254. He also found that the 

Claimant was polysubstance dependent with a history of cocaine use. R. 259. 

According to Dr. Haven, the Claimant had at most mild difficulties in maintaining 

concentration, persistence or pace, and no limitations on daily living activities or 

maintaining social functioning. R. 261. Dr. Haven concluded that the Claimant’s 

mental health impairments were non-severe. R. 263. The record also includes a 

report dated January 21, 2006 by Dr. Kamlesh P. Ramchandani, M.D., in which Dr. 

Ramchandani states that the Claimant’s physical examination showed that his gate 

was normal and unassisted, he was able to squat and get up from a squatting 

position without assistance, was able to get on and off the examination table 

without assistance and able to dress and undress himself without assistance. He 

also found that the Claimant’s range of motion in his joints were full and normal 

except for his right leg and lumbar spine. R. 266. Dr. Ramchandani’s impression 

was that the Claimant had “lumbar arthralgia secondary to discogenic disease of 

the lumbar spine.” R. 267. Dr. Arjmand Towfig, in a January 25, 2006, “request for 

state agency medical consultant advice” concurred in the determination that the 

12
Claimant’s impairments were not severe. Thereafter, on May 23, 2006, Dr. Marion 

Panepinto concurred with Dr. Towfig’s assessment that Claimant’s impairments 

were not severe. R. 275. 

D. Documentary Evidence

In various agency documents contained in the record, the Claimant made 

statements about his physical and mental condition. These statements included the 

following.

Despite the Claimant’s assertion that there were many activities that he 

could no longer perform, in December 2005, he admitted to performing the following 

household chores: cleaning, vacuuming, dusting, laundry, repairs and yard work. R. 

148, 150. He also stated that he would go fishing once or twice a year but that it 

was difficult to get in and out of the boat or sit for long periods of time. R. 153. 

Similarly, in May of 2006, the Claimant admitted to picking up after himself, 

loading the dishwasher, and shopping for groceries once a week. R. 165. At that 

time, he also said that he never or rarely drove because he had no driver’s license. 

R. 168. In May of 2006, in contrast to his reported activities in December 2005, the 

Claimant indicated that he often gardened and fished. R. 168. 

E. ALJ’s Decision

First, the ALJ found that the Claimant met the insured status requirements 

of the SSA through March 31, 2010. R. 61, 63. Second, the ALJ found that the 

Claimant had not engaged in substantial gainful activity since September 26, 2005, 

the alleged disability onset date. R. 63. Third, the ALJ found that the Claimant had 

13
the following severe impairments: bipolar disorder, narcissistic and antisocial 

personality disorder, polysubstance abuse and lumbar degenerative disc disease. R. 

63. Fourth, the ALJ found that these impairments did not meet or equal one of the 

listed impairments. R. 63-64. Fifth, the ALJ found that the Claimant had a 

residual functional capacity as follows: The Claimant could perform light exertional 

work that is unskilled, routine and repetitive so that it requires little judgment and 

infrequent interactions with others, subject to only occasional bending, stooping, 

squatting and kneeling, which work could only be on level surfaces and away from 

unprotected heights, hazardous equipment and operating machinery. R. 64. In 

making its residual functional capacity determination, the ALJ found that the 

Claimant was not credible. R. 64. In doing so, the ALJ applied the factors 

enumerated in 20 C.F.R. §404.1529(c) and §416.929(c). 

II. LEGAL STANDARDS

A. Standard of Review

A reviewing court may enter 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). This much is clear regarding the standard of review. 

If supported by substantial evidence, the Commissioner’s factual findings are 

conclusive. 42 U.S.C. §405(g). If the Appeals Council denies a request for review, 

the ALJ’s decision becomes the Commissioner’s final decision, reviewable by the 

district court. Sims v. Apfel, 530 U.S. 103, 106-07 (2000). But beyond these 

axiomatic statements, the courts have provided seemingly conflicting guideposts. 

14
At one end of the spectrum, court opinions have held that the standard of 

review is narrow. Simila v. Astrue, 573 F.3d 503, 513 (7th Cir. 2009) (review is 

“extremely limited”). The district court’s review is limited to determining whether 

substantial evidence supports the Commissioner’s decision and whether the 

Commissioner applied the correct legal standard in reaching the decision. Nelms v. 

Astrue, 553 F.3d 1093, 1097 (7th Cir. 2009); Schoenfeld v. Apfel, 237 F.3d 788, 792 

(7th Cir. 2001). Substantial evidence exists if there is enough relevant record 

evidence that would allow a reasonable mind to determine that the decision’s 

conclusion is supportable. Richardson v. Perales, 402 U.S. 389, 399-401 (1971). 

Accordingly, the reviewing court cannot displace the decision by reconsidering facts 

or evidence, or by making independent credibility determinations. Elder v. Astrue, 

529 F.3d 408, 413 (7th Cir. 2008). Indeed, on review, the courts will give the 

decision a commonsensical reading and not pick nits. Rice v. Barnhart, 389 F.3d 

363, 369 (7th Cir. 2004). Moreover, a decision need not provide a complete written 

evaluation of every piece of testimony and evidence. Pepper v. Colvin, 712 F.3d 351, 

362 (7th Cir. 2013). If reasonable minds could differ concerning whether a claimant 

is disabled, then the court must affirm so long as the decision is adequately 

supported. Elder, 529 F.3d at 413. 

At the other end of the spectrum, courts, including the Seventh Circuit, have 

been careful to emphasize that the review is not merely a rubber stamp. Scott v. 

Barnhart, 297 F.3d 589, 593 (7th Cir. 2002). For example, a “mere scintilla” is not 

substantial evidence. Id. Moreover, a reviewing court must conduct a critical 

15
review of the evidence before affirming the Commissioner’s decision. Eichstadt v. 

Astrue, 534 F.3d 663, 665 (7th Cir. 2008). If the Commissioner’s decision lacks 

evidentiary support or adequate discussion of the issues, then the court must 

remand the matter. Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009). Indeed, 

even when adequate record evidence exists to support the Commissioner’s decision, 

the decision will not be affirmed if the Commissioner 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).4 And, unlike most civil litigation in which a decision can be 

affirmed on any basis in the record, federal courts cannot do so in Social Security 

appeals. Compare Parker v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010) (“[T]he Chenery

doctrine . . . forbids an agency’s lawyers to defend the agency’s decision on grounds 

that the agency itself had not embraced.”) with Brosted v. Unum Life Ins. Co., 421 

F.3d 459, 467 (7th Cir. 2005) (“[W]e can affirm on any basis in the record”). 

Therefore, the Commissioner’s counsel cannot build for the first time on appeal the 

necessary accurate and logical bridge. See Parker, 597 F.3d at 925; Toft v. Colvin, 

2013 U.S. Dist. LEXIS 72876, *21 (N.D. Ill. 2013) (“[T]he court’s review is limited to 

the reasons and logical bridge articulated in the ALJ’s decision, not the post-hoc 

rational submitted in the Commissioner’s brief.”). An exception to the Chenery

4 To further show the seeming conflict, scores of cases rely upon the “logical bridge” analysis 

and language to remand decisions to the Commissioner. See, e.g. Shauger v. Astrue, 675 

F.3d 690, 697-98 (7th Cir. 2012); Scott v. Astrue, 647 F.3d 734, 740 (7th Cir. 2011); Villano, 

556 F.3d at 562. But the “logical bridge” analysis was never meant to compel a 

hypercritical approach. Mueller v. Astrue, 860 F.Supp.2d 615, 619 (N.D. Ill. 2012). Indeed, 

the Seventh Circuit has provided the following pedestrian explanation of how an ALJ’s 

decision establishes a logical bridge: “[T]he ALJ must rest its denial of benefits on 

adequate evidence contained in the record and must explain why contrary evidence does not 

persuade.” Berger, 516 F.3d at 544.

16

 
doctrine is the harmless-error doctrine, which allows a court to affirm if the outcome 

on remand is foreordained. McKinzey v. Astrue, 641 F.3d 884, 892 (7th Cir. 2011) 

(“[W]e will not remand a case to the ALJ for further specification where we are 

convinced that the ALJ will reach the same result.”); see Osmani v. INS, 14 F.3d 13, 

15 (7th Cir. 1994) (harmless error does not require remand “when it is clear what 

the agency’s decision has to be”); Sahara Coal Co. v. Office of Workers’ 

Compensation Programs, 946 F.2d 554, 558 (7th Cir. 1991); see also Parker, 597 F.3d 

at 924. The harmless error analysis looks to evidence in the record to see if the 

court can predict with great confidence what the result will be on remand. 

McKinzey, 641 F.3d at 892.

B. Disability Standard5

Disability insurance benefits are available to a claimant who can establish 

that he is under a “disability” as defined in the SSA. Liskowitz v. Astrue, 559 F.3d 

736, 739-740 (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 

he is unable to perform his previous work and cannot, considering his age, 

education and work experience, participate in any gainful employment that exists 

5 Although Plaintiff also sought supplemental security income, because the analysis is the 

same for both, the Court only addresses the ALJ’s finding as to disability. See Blackwell v. 

Barnhart, 258 F. Supp. 2d 851, 860 (N.D. Ill. 2003) (“The substantive requirements for SSI 

benefits are substantially the same as those for Social Security disability benefits under 

Title II of the Social Security Act.”). Moreover, the Claimant never addressed supplemental 

security income in his briefs.

17

 
in the national economy. 42 U.S.C. §423(d)(2)(A). Gainful employment is work 

usually done for pay or profit, regardless of whether a profit is realized. 20 C.F.R. 

§404.1572(b). 

The ALJ uses a five-step analysis to determine whether a claimant is 

disabled. 20 C.F.R. §404.1520(a)(4)(i – v). Under this analysis, 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 severe impairment meets or equals a listed impairment; (4) whether the 

claimant can perform past relevant work; meaning whether the claimant can still 

work despite the claimant’s physical and mental limitations, which is referred to as 

the claimant’s residual functional capacity (“RFC”); and (5) whether the claimant is 

capable of performing work in light of the claimant’s age, education and work 

experience. Id.; see also Liskowitz, 559 F.3d at 740. After the claimant has proved 

that she cannot perform his past relevant work due to the limitations, the 

Commissioner carries the burden of showing that a significant number of jobs exist 

in the national economy that the claimant can perform. Schmidt v. Astrue, 496 F.3d 

833, 841 (7th Cir. 2007).

III. DISCUSSION

A. Contentions of the Parties

In asserting that the ALJ’s decision was not supported by substantial 

evidence, the Claimant contends that the matter should be remanded for four (4) 

reasons. First, the Claimant notes that the ALJ included the much criticized 

18
boilerplate language found in nearly every ALJ opinion. Second, in his opening 

brief, the Claimant argues that the ALJ improperly discounted the opinion of his 

chiropractor “without contradictory medical evidence.” Dkt. #15 at p. 1. In his reply 

brief, the Claimant pivots from this argument and asserts that the ALJ improperly 

discounted the chiropractor’s opinion “solely based on the non-examining state 

agency consultants.” Dkt. #21 at p. 1. Third, the Claimant contends that the ALJ 

improperly discredited the Claimant’s testimony. Finally, the Claimant contends 

that the ALJ failed to properly consider his GAF score. It is important to note the 

issues that the Claimant has not raised. At least three of these are identified below. 

Moreover, the Claimant does not argue that the ALJ failed to adequately develop 

the record.

The Commissioner contends that the ALJ conducted a proper credibility 

analysis, and that the Claimant simply failed to meet his burden of showing that he 

was disabled. The Commissioner asserts that the Claimant is improperly asking 

this Court to re-weigh the evidence.

B. Analysis

The ALJ mainly focused on the credibility of the Claimant, and the other 

issues raised follow from the ALJ’s decision in this regard. Accordingly, the Court 

will address the credibility analysis first. The Court will then address the issues 

relating to the chiropractor’s testimony, and then the Claimant’s bipolar disorder.

19
1. The ALJ’s Credibility Analysis Was Not Patently Wrong

The Social Security Administration regulations provide the framework for 

making a credibility analysis. 20 C.F.R. §1529.404. The ALJ’s first step is to 

determine whether the claimant has a medically determinable impairment. If the 

claimant has that type of impairment, then the ALJ must evaluate the intensity 

and persistence of the symptoms to determine how those symptoms limit the 

claimant’s capacity to perform work. 20 C.F.R. §404.1529(c)(1). In determining the 

claimant’s symptoms, including pain, the ALJ must consider objective medical 

evidence, but cannot stop the analysis at that point. Instead, the ALJ must 

consider other factors, such as the claimant’s daily activities; the location, duration, 

frequency and intensity of the pain; precipitating and aggravating factors; the type, 

dosage, effectiveness, and side effects of any medication taken to alleviate the pain; 

the treatment, including medication, the claimant receives to relieve the pain; 

measures the claimant has used to relieve the pain; and any other factors relating 

to the claimant’s functional limitations. 20 C.F.R. §404.1529(c)(3)(i) – (vii). 

The ALJ performed this analysis in detail and determined that the 

Claimant’s assertions as to intensity, persistence and limiting effects were simply 

not credible. R. 64 – 66. The ALJ did not err in this regard, particularly when 

viewed from the proper standard of review; namely, whether the ALJ’s decision was 

patently wrong. See Skarbek v. Barnhart, 390 F.3d 500, 504-05 (7th Cir. 2004).

As noted above, an ALJ may not ignore subjective complaints of pain solely

because they are unsupported by medical evidence, but it does not follow that an 

20
ALJ is therefore obligated to accept the claimant’s complaints at face value. 

Schmidt v. Barnhart, 395 F.3d 737, 746-47 (7th Cir. 2005). Social Security 

claimants are like any other party to litigation and may exaggerate when it is to 

their advantage. Adams v. Astrue, 880 F. Supp. 2d 895, 905 (N.D. Ill. 2012). 

Accordingly, the ALJ – and courts – can consider discrepancies between objective 

medical or other evidence and self-reports that contain evidence of exaggeration. 

Getch v. Astrue, 539 F.3d 473, 483 (7th Cir. 2008). In addition to the factors 

identified in the regulations, ALJs and courts can use ordinary techniques to 

evaluate credibility, including prior inconsistent statements and lack of candor in 

other aspects of the claimant’s testimony. Fair v. Bowen, 885 F.2d 597, 604 n.5 (9th

Cir. 1989).

In this case, the ALJ applied the regulatory factors and other evaluative 

techniques in determining that the Claimant’s testimony regarding intensity and 

persistence of pain was not credible. First, the ALJ noted that despite the 

Claimant’s assertions of intense lumbar back pain, the Claimant only took over-thecounter analgesics. R. 67. This is a proper factor, and is supported by the record 

evidence. 20 C.F.R. §404.1529(c)(iv); R. 23-24. 

Second, the ALJ considered the Claimant’s daily activities. Again, this is a 

proper regulatory factor to consider. 20 C.F.R. §4041529(c)(i).6 With respect to 

daily activities, the ALJ noted – again contrary to the Claimant’s assertions of 

6 It is important to note that the ALJ was not using the Claimant’s daily activities as a way 

to indicate that the Claimant was capable of working full time. Instead, the ALJ was 

simply contrasting the Claimant’s previous statements of his daily activities against his 

testimony of daily activities to determine the Claimant’s credibility. 

21

 
debilitating pain, which prevented him from doing anything other than shuffling 

around the house – the Claimant stated on his mental health assessment that he 

was busy helping his mother clean her house and sorting through items to send to 

charity. R. 66, 246. Likewise, although the Claimant testified at the hearing that 

he no longer shopped, in agency documents he repeatedly indicated he did so. R. 

165. Similarly, despite asserting that he no longer drove, the evidence conclusively 

established that the Claimant was in legal difficulty for recently driving without a 

license. R. 244. Finally, the ALJ noted that contrary to the Claimant’s assertions 

that he was a recluse that never left the house, the record reflected that the 

Claimant went to the Verdi Club, where he had friends and many acquaintances, to 

play bocce ball. R. 66. Once again, the ALJ’s finding was supported by the record. 

R. 245.7

Third, the ALJ considered how the Claimant responded to treatment. R. 65. 

Again, this was a proper regulatory factor for the ALJ to consider. 20 C.F.R. 

§1529(c)(v). As to the Claimant’s back pain, as the ALJ noted, the Claimant’s own 

chiropractor – upon whom the Claimant places so much reliance – wrote that the 

Claimant’s back problems responded well to treatment. R. 65. The record supports 

the ALJ in this regard. R. 236. As to the Claimant’s bipolar disorder, the ALJ 

found that the Claimant’s counselor indicated that he had completed both 

7 The record contains additional activities that contradict the Claimant’s assertions as to 

severity. For example, the record shows that the Claimant also did yard work, gardened 

and went fishing. R. 148, 150, 153, 168. It is easy to see why the ALJ found the Claimant 

not credible.

22

 
individual and group therapy, and was feeling better and no longer depressed. R. 

66. Once again, the ALJ’s finding was supported by the record. R. 271.

Finally, in discrediting the Claimant, the ALJ noted the substantial conflict 

between the record evidence and the Claimant’s vehement denial of drug use. R. 

66. Again, the ALJ rightfully considered this fact, and the fact is supported by the 

record. Indeed, the Claimant’s purported explanation as to why the records were 

inaccurate is incredible. R. 36-37. The Claimant testified that the counselor must 

have included the allegedly false information in his records because he complained 

about her. R. 36-37. Besides the fact that this explanation is highly implausible, it 

does not explain the fact that the information regarding the Claimant’s drug use 

was noted twice by two different counselors on two different occasions. R. 225, 229, 

247. Additionally, his explanation does not address his failure to correct the 

purported egregious act before the hearing. Finally, the Janet Wattles Center 

records all indicate that whenever drug use was addressed with the Claimant he 

became defensive. R. 230. The transcript of the hearing before the ALJ indicates 

that the Claimant likewise became defensive with the ALJ when he raised the 

issue. R. 36-37.

The Claimant essentially ignores all these factors and the ALJ’s analyses of 

these factors. Instead, the Claimant argues that the ALJ was somehow duty-bound 

to find him credible. The Claimant is wrong. The Court does not re-weigh 

credibility. Instead, the Court, as a reviewing body, determines whether error 

23
occurred below. Upon review, the ALJ’s credibility analysis was not “patently 

wrong.” Indeed, the analysis was fully supported by the record.8

2. The ALJ Properly Evaluated the Evidence Provided by the 

Chiropractor.

As the ALJ correctly noted, the record is comprised mostly of documents 

relating to the Claimant’s mental condition. R. 65. The Claimant, nevertheless, 

places great – indeed, almost complete – reliance on a single note, dated February 

27, 2006, from his chiropractor, Dr. Papke. R. 270. (The only other evidence was 

provided by a state-agency consultant regarding decreased lumbar flexion and the 

Claimant’s difficulty performing a straight-leg raise. R. 266.) Ironically, the note is 

written on a “return to work” form. As stated above, in total, the note provides that 

the Claimant can return to light work, but restricts the Claimant’s work as follows: 

“No repetitive bending, twisting, or lifting or anything greater than 5 lbs.” R. 270. 

This “return to work” note makes no mention of Dr. Papke’s other document in the 

file, dated about three (3) months earlier, that stated the Claimant responded well 

8 Regarding credibility, the Claimant correctly notes that the ALJ used boilerplate language 

that the Seventh Circuit has repeatedly and emphatically criticized. See, e.g., Bjornson v. 

Astrue, 640, 644 (7th Cir. 2012). (Why the ALJs continue to include this boilerplate 

language is baffling. The Commissioner asserts that she includes this language because it 

is contained in the “agency’s decisional templates” and is used for about 800,000 hearings. 

Dkt. #20, p. 7. If this language is simply in a template, then the agency can simply remove 

it from the template, thereby eliminating the error altogether. And asserting that the error 

is repeated nearly a million times a year does not make the error any less of an error – just 

the opposite, that action compounds the error nearly a million fold.) But as the 

Commissioner correctly notes, the inclusion of this boilerplate language does not 

automatically require reversal. Filus v. Astrue, 694 F.3d 863, 868 (7th Cir. 2012). Provided 

that the ALJ provides reasoning for not crediting a claimant’s testimony, an ALJ’s 

erroneous use of this boilerplate is harmless. Id. As shown above, the ALJ provided more 

than enough reasoning to overcome the inclusion of the erroneous boilerplate language.

24

 
to treatment and was seen on an as needed basis. R. 236. The Claimant’s brief, like 

nearly all the record evidence contrary to his position, ignores this document. 

The Seventh Circuit recently addressed an ALJ’s credibility determination 

based upon a treating chiropractor’s opinion. In finding that the ALJ did not err, 

the Seventh Circuit stated the following:

For purposes of social security disability determinations, a chiropractor is not 

an ‘acceptable medical source,’ cannot offer ‘medical opinions,’ and is not 

considered a ‘treating physician. . . An ALJ may consider a chiropractor’s 

opinions, of course, but the weight they will be given will depend on a number 

of factors, including the degree to which they are supported by objective 

evidence.

Pierce v. Colvin, 739 F.3d 1046, 1051 (7th Cir. 2014) (citations omitted). 

An ALJ cannot discount a chiropractor’s opinion merely because it is the opinion of 

a chiropractor. Losquardo v. Astrue, 2012 U.S. Dist. LEXIS 135703, *42-45

(E.D.N.Y. 2012). Instead, the ALJ must consider the chiropractor’s opinion as 

evidence from an “other source.” SSR-06-03p (in addition to acceptable medical 

sources, the agency may use evidence from “other sources” including chiropractors). 

In determining what weight to give to “other medical evidence,” like a chiropractor’s 

opinion, the ALJ has more discretion and is permitted to consider any 

inconsistencies found within the record. Raney v. Barnhart, 396 F.3d 1007, 1010 

(8th Cir. 2004).

Initially, the Claimant argued that the ALJ erred by discounting Dr. Papke’s 

opinion “without contradictory evidence.” Dkt. #15, p 1. However, after the 

Commissioner established that the ALJ relied upon the opinions of the state-agency 

consultants and physicians, the Claimant messaged his argument. In his reply 

25
brief, the Claimant argued that the ALJ could not rely “solely on the non-examining 

state agency medical consultant’s opinion.” Dkt. #21, p. 1.

The Claimant’s argument is without merit. First, the Claimant cites no 

authority that forbids an ALJ from relying upon state-agency consultants’ opinions 

to reject a treating chiropractor’s opinion. Despite extensive research, the Court 

was unable to find any controlling authority supporting this proposition. In fact, 

the Court found contrary authority, which upheld an ALJ’s decision to follow two 

state-agency non-examining physicians instead of a treating chiropractor. Makenzie 

v. Comm’r of Social Security, 2010 U.S. Dist. LEXIS 118536, *26-30 (S.D. Ohio 

2010) report and recommendation accepted 2010 U.S. Dist. LEXIS 118535 (S.D. 

Ohio 2010). Second, case law allows ALJ’s considerable discretion in determining 

what weight to give to “other source” evidence. Third, the Claimant’s argument 

essentially seeks to establish a per se rule that a treating chiropractor’s opinion –

however scant that opinion is, like in this case – trumps multiple state-agency 

consultants’ opinions. Indeed, the Claimant asks this Court to ignore the stateagency consultants’ opinions, which this Court cannot do. See 20 C.F.R. 

§404.1527(e)(2)(i) (“Therefore, administrative law judges must consider findings and 

other opinions of State agency medical and psychological consultants and other 

program physicians, psychologists, and other medical specialists as opinion 

evidence, except for the ultimate determination about whether you are disabled.”)9 

9 The Claimant does not argue that the ALJ erred by failing to apply the “checklist factors” 

found in 20 C.F.R. §404.1527(d) to determine the weight to give to Dr. Papke’s opinion. But 

even if the Claimant made this argument, the Court is not sure it would prevail. The ALJ 

can consider these factors. SSR 06-03p. However, nothing in the regulations, policy 

26

 
In addition to the state-agency consultants, the ALJ also relied upon Dr. 

Papke’s November 30, 2005 document. As noted above, and as found by the ALJ, 

this document stated that the Claimant responded well to treatment and exercise. 

R. 65, 236. This conflicting evidence provides an additional basis for the ALJ to 

discount the chiropractor’s opinion, which the ALJ did.

Finally, the ALJ relied upon the paucity of medical evidence the Claimant 

presented. And when a claimant is represented by counsel, as the Claimant was 

here, the ALJ is entitled to presume that the record will be adequately developed. 

Skinner v. Astrue, 478 F.3d 836, 842 (7th Cir. 2007) (“a claimant represented by 

counsel is presumed to have made his best case before the ALJ”); Hawkins v. 

Chater, 113 F.3d 1162, 1167 (7th Cir. 1997) (“Thus, in a counseled case, the ALJ may 

ordinarily require counsel to identify the issue or issues requiring further 

development.”). No request to further develop the record was made below and no 

argument that the ALJ failed to fully develop the record was made to this Court.

3. The ALJ’s Decision Was Not Erroneous with Respect to the 

Claimant’s Bipolar Disorder.

The Claimant makes two (2) arguments as to why the ALJ erred with respect 

to his bipolar disorder. Neither has merit.

First, the Claimant focuses on his GAF scores of 50. Dkt. #15, p. 4; R. 227. 

(The Claimant ignores the GAF scores of 78 and 55.) Based upon that GAF score, 

the Claimant leaps to the conclusion that he is unable to perform the work 

interpretations or controlling case law the Court has seen mandate that these factors be 

considered in the same way they must be used when weighing opinions from “acceptable 

medical sources.” Perhaps ALJs should consider these factors, and it would make sense to 

do so, but currently the Court knows of nothing in this Circuit that requires ALJs to do so.

27

 
identified in the ALJ’s RFC. The Claimant’s over-emphasis on his GAF score of 50 

(even ignoring the GAF scores of 55 and 78, for sake of argument) is misplaced. As 

the Seventh Circuit has stated, “[N]owhere do the Social Security regulations or 

case law require an ALJ to determine the extent of an individual’s disability based 

entirely on his GAF score.” Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010). In 

fact, courts have rejected nearly identical arguments in cases involving GAF scores 

of 50. Schnittker v. Colvin, 2013 U.S. Dist. LEXIS 140065, *8-9 (S.D. Ind. 2013) 

(affirming denial of benefits for claimant with GAF score of 50). Moreover, the ALJ 

did not consider the GAF score in a vacuum. Instead, the ALJ properly considered 

the GAF score in relation to the record, including the Claimant’s other GAF score of 

78, his successful completion of both group and individual counseling programs, and 

his statements that he was feeling better and stable while taking Geodon. R. 66.

Second, the Claimant asserts that the ALJ erred by characterizing the

Claimant’s GAF scores as a “moderate” impairment. The Claimant asserts that a 

GAF score of 50 is a marked impairment. Dkt. #15, p. 4. The Diagnostic and 

Statistical Manual of Mental Disorders classifies a GAF score of 60 as moderate 

symptoms and a GAF score of 50 as serious symptoms. Diagnostic and Statistical 

Manual of Mental Disorders, 34 (4th ed. 2000). In light of the circumstances of this 

case as well as the recent GAF score of 55 and two notations in the record of a GAF 

score of 78, the ALJ’s use of the term “moderate” does not require remand under 

these particular facts.

28
Moreover, both of the Claimant’s arguments fail to understand that the ALJ 

specifically incorporated the Claimant’s GAF scores into the RFC. R. 46. Even with 

the inclusion of these scores into the RFC, Mr. Newman (the vocational expert) 

found that jobs existed that the Claimant could perform. R. 47. The ALJ relied 

upon Mr. Newman’s opinion in his decision. R. 68. 

IV. CONCLUSION

For the reasons stated above, the Claimant’s motion for summary judgment 

is denied, and the Commissioner’s motion for summary judgment is granted.

It is so ordered.

Entered: September 16, 2014 ______________________________

Iain D. Johnston

U.S. Magistrate Judge

29