UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MARY H. WHITE, )

 )

Plaintiff, ) No. 12-cv-04039

 )

 ) Magistrate Judge Susan E. Cox

MICHAEL J. ASTRUE, Commissioner of )

Social Security, )

 )

Defendant, )

MEMORANDUM OPINION AND ORDER

Claimant, Ms. Mary H. White, seeks judicial review of a final decision of the Commissioner

of the Social Security Administration (“SSA”) denying her application for widow’s disability

benefits under the Social Security Act (“the Act”). Ms. White has filed a motion for summary

judgment, seeking to reverse the Commissioner’s final decision or remand the case for consideration

of the issues raised herein. The Commissioner has filed a cross motion for summary judgment

seeking to affirm the Commissioner’s final decision. For the reasons set forth below, Ms. White’s

motion to remand is denied [dkt. 14], and the Commissioner’s motion to affirm is granted [dkt. 22]. 

I. Procedural History

Ms. White applied for disabled widow’s benefits on July 9, 2010, alleging that she became

disabled on January 1, 2010.1

 Her claim was denied initially on February 28, 2011, and again upon

reconsideration on May 27, 2011.2

 On June 22, 2011, Ms. White requested a hearing before an

Administrative Law Judge (“ALJ”).3

 A hearing presided over by ALJ Patricia A. Bucci was held on

1

 R. at 24.

2 Id.

3 Id.

Page 1 of 36

Case: 1:12-cv-04039 Document #: 26 Filed: 08/13/13 Page 1 of 36 PageID #:571
November 7, 2011 in Chicago, Illinois.4

 Following the hearing, the ALJ issued an unfavorable

decision on November 30, 2011, concluding that Ms. White was not disabled under section 202(e)

of the Act.5

 The Appeals Council denied Ms. White’s request to review the ALJ’s decision, so the

ALJ’s decision is the final decision of the Commissioner.6

II. Factual Background

The facts set forth in this section are derived from the administrative record. We begin with

an overview of Ms. White’s background and relevant medical history. We then summarize the ALJ

hearing testimony and the ALJ’s decision.

A. Ms. White’s Background and Relevant Medical History

Ms. White was born December 18, 1957, and was fifty-three years old at the time of the

hearing on November 7, 2011.7

 In her application for benefits, Ms. White listed that she was most

recently employed as a bus monitor and worked in that position from October 2008 until the end of

July 2010.8

 She listed that prior to that she worked as a machine operator at a mailing company from

1993-2008.9 However, more positions were listed on her work history report for the SSA, spanning

from 1976 to 2009.10 These positions included work as a cashier and cook at a restaurant, work as

a nurse’s aid and janitor at a hospital, work as a cook and supervisor at a nursing home, and a few

others.11

4 Id.

5

 R. at 25.

6

 R. at 1-3.

7

 R. at 51.

8

 R. at 188.

9 Id.

10 R. at 214.

11 Id.

Page 2 of 36

Case: 1:12-cv-04039 Document #: 26 Filed: 08/13/13 Page 2 of 36 PageID #:572
The chronology of Ms. White’s medical record is relatively short, so we will examine the

record based on dates of treatment and physician visits. The available medical records for Ms. White

begin on August 27, 2010 when she was seen by her treating physician, Muhammad Rafiq, M.D.

at Oak Forest Hospital of Cook County.12 Ms. White testified during the hearing that she has been

treated by Dr. Rafiq since 1995 or 1997.13 On August 27 she complained of left-sided chest pain.14

Ms. White’s hypertension, or abnormally high blood pressure,15 was described as controlled.16 Dr.

Rafiq stated that Ms.White had a history of asthma, osteoarthritis(the degeneration ofjoint cartilage

and the underlying bone),17 and ulcerative colitis (a chronic inflammatory disease of the large

intestine and rectum characterized by recurrent episodes of abdominal pain, fever, chills, and

diarrhea).18 Some lab work was done on September 9, 2010, and Ms. White was seen in October of

2010 for a medicine refill.19

The record shows that the next time Ms. White visited a physician was when she saw Dr.

Rafiq on January 21, 2011.20 She complained of having lower back pain for a few days.21 Dr.

Rafiq formally diagnosed ulcerative colitis, unspecified osteoarthritis, benign and controlled

12 R. at 266.

13 R. at 60.

14 R. at 268. 15 The Merck Manual for Healthcare Professionals,

http://www.merckmanuals.com/professional/cardiovascular_disorders/hypertension/overview_of_hypertension.html

?qt=hypertension&alt=sh (2013). 16 Id. 17 The Merck Manual for Healthcare Professionals,

http://www.merckmanuals.com/professional/musculoskeletal_and_connective_tissue_disorders/joint_disorders/osteo

arthritis_oa.html?qt=osteoarthritis&alt=sh (2013). 18 Id.; The Merck Manual for Healthcare Professionals,

http://www.merckmanuals.com/professional/gastrointestinal_disorders/inflammatory_bowel_disease_ibd/ulcerative_

colitis.html?qt=ulcerative%20colitis&alt=sh (2013). 19 R. at 27, 270-72.

20 R. at 256-58.

21 R. at 256.

Page 3 of 36

Case: 1:12-cv-04039 Document #: 26 Filed: 08/13/13 Page 3 of 36 PageID #:573
hypertension, hyperlipidemia (an abnormally high concentration of fats or lipids in the blood),22 

and unspecified stable asthma.23 Dr. Rafiq’s notes from this visit state that Ms. White had been

on medication for hypertension for more than ten years, though the specific medication is not

noted.24

On January 27, 2011, consulting internist M.S. Patil, M.D. examined Ms. White for the

purpose of determining disability.25 At the time, Ms. White was sixty-seven inches tall, weighed

177 pounds, and had a blood pressure of 124/74.26 Dr. Patil noted that Ms. White had

complained of arthritis in her back for many years, as well as occasional pain in her hips, knees,

hands, and feet.27 She complained of mild pain and difficulty with bending, lifting more than ten

pounds, carrying heavy objects, and standing or walking for more than ten minutes.28 The notes

also state that the pain radiated to her legs, and she sometimes had pain even when sitting.29 Ms.

White indicated to Dr. Patil that the pain level in her back was an 8/10, and she stated that

physical therapy in the past had not been helpful.30 She denied having any major back injury or

surgery.31 As part of the mental examination Dr. Patil found that Ms. White was mildly anxious,

but noted there were no other issues.32

22 The Merck Manual for Healthcare Professionals,

http://www.merckmanuals.com/professional/endocrine_and_metabolic_disorders/lipid_disorders/dyslipidemia.html?

qt=hyperlipidemia&alt=sh (2012). 23 R. at 256.

24 Id. 25 R. at 274-77.

26 Id. 27 R. at 274.

28 Id. 29 Id. 30 Id. 31 Id. 32 R. at 275.

Page 4 of 36

Case: 1:12-cv-04039 Document #: 26 Filed: 08/13/13 Page 4 of 36 PageID #:574
Ms. White told Dr. Patil that she had been on medication for hypertension for more than ten

years and that she used an inhaler as needed for asthma.33 Dr. Patil’s examination stated that Ms.

White’s gait was normal, her lungs were clear, and she did not complain of tenderness or spasm in

the muscles on either side of the midline of the spine.34 The exam notes also state that Ms. White had

a limited range of motion of the lumbar spine.35 An x-ray of Ms. White’s lumbosacral spine revealed

a slight disc space narrowing at the L4/5 vertebrae.36 Dr. Patil concluded by affirming Dr. Rafiq’s

previous diagnoses of ulcerative colitis, osteoarthritis, hypertension, and asthma.37 In addition, Dr.

Patil diagnosed Ms. White with varicose veins which gave her pain while sitting.38 Dr. Patil also

noted that Ms. White consults Dr. Rafiq regularly.39

On February 22, 2011, a non-examining state agency physician, Virgilio Pilapil, M.D.,

conducted a residual functional capacity assessment on behalf of the SSA based on Ms. White’s

records.40 The physician’s notes state that Ms. White’s exertional and postural activities are

limited by arthritis in her lumbar spine, coupled with a decreased range of motion and

complaints of pain.41 Dr. Pilapil’s primary diagnosis of Ms. White was arthritis in her lumbar

spine.42 According to this assessment, Ms. White can occasionally lift and/or carry twenty

pounds, frequently lift and/or carry ten pounds, stand and/or walk about six hours in an eight

hour workday, and sit about six hours of an eight hour workday.43 However, when sitting, Ms.

33 R. at 274.

34 R. at 276.

35 Id. 36 R. at 277.

37 Id. 38 Id. 39 Id. 40 R. at 279-86.

41 R. at 280.

42 R. at 279.

43 R. at 280.

Page 5 of 36

Case: 1:12-cv-04039 Document #: 26 Filed: 08/13/13 Page 5 of 36 PageID #:575
White must periodically alternate from sitting to standing in order to relieve pain or discomfort.44

Dr. Pilapil found that Ms. White has unlimited ability to push and/or pull.45 The assessment

limits Ms. White in terms of posture by establishing that she should only occasionally climb

ramps or stairs and ladders, rope, or scaffolding.46 Ms. White’s asthma is listed as a secondary

diagnosis.47 Dr. Pilapil also noted two environmental limitations based on Ms. White’s wellcontrolled asthma. The assessment states that Ms. White should avoid concentrated exposure to

both extreme cold and respiratory irritants such as “fumes, odors, dusts, gases, poor ventilation,

etc.”48 Finally, Dr. Pilapil wrote that Ms. White’s statements about her degree of back, hand and

leg pain were not supported by the evidence and were only partially credible.49

On March 16, 2011 Ms. White was seen for a laceration at Oak Forest Triage with no

abnormalities reported and no additional information provided.50 Ms. White was seen by Dr.

Rafiq on April 25 for a routine visit, May 23 for a routine pap smear, and July 29 for a routine

visit.51 No specific abnormalities were reported and she was in no acute distress.52

On August 1, 2011, Ms. White was seen again by her treating physician, Dr. Rafiq.53 Dr.

Rafiq’s notes indicate that Ms. White was seen that day in order to file a Social Security

Disability form.54 Dr. Rafiq’s notes state that Ms. White experienced mild tenderness over her

lumbosacaral spine, that straight leg raising was negative bilaterally, and that she possessed a

44 Id. 45 Id. 46 R. at 281.

47 R. at 279.

48 R. at 283.

49 R. at 284.

50 R. at 312-15.

51 R. at 304-09, 322-27.

52 Id. 53 R at 302.

54 R. at 301-03.

Page 6 of 36

Case: 1:12-cv-04039 Document #: 26 Filed: 08/13/13 Page 6 of 36 PageID #:576
normal range of motion.

55 Ms. White was alert, oriented, and experienced no acute distress.56 Her

hypertension was described as controlled, and her asthma was described as stable.36

In his disability assessment, Dr. Rafiq concluded that Ms. White could lift eleven to twenty

pounds occasionally and six to ten pounds frequently, stand or walk less than four hours of an eighthour workday, and sit less than four hours of an eight-hour workday.57 He also noted that Ms. White

could occasionally engage in most postural activities, but should never climb ladders or ropes.58 Dr.

Rafiq further stated that Ms. White did not have any significant cognitive or mental limitations that

he was aware of.59 Dr. Rafiq’s notes include minimal explanation for these conclusions other than

that his findings were based on his previous diagnoses of hypertension, hyperlipidemia,

osteoarthritis, asthma, and ulcerative colitis.60

There was some confusion about the records from ChiroMed Health & Wellness Center

regarding whether Ms. White or a chiropractor had filled out various pieces of paperwork. A

physician evaluation and treatment plan dated September 26, 2011, apparently filled out by a

chiropractor, indicates a diagnosis of lower back pain and pain in the cervical spine.61 It should be

noted that the signing chiropractor’s signature is not legible and is lacking the initials “D.C.” which

led the ALJ to appear skeptical of its origin.62 The treatment plan recommended visits several times

per week for four weeks for therapy, manipulation, and other treatment.63

55 R. at 302.

56 Id. 57 R. at 297.

58 Id. 59 Id. 60 R. at 298.

61 R. at 342-49.

62 R. at 28, 342.

63 R. at 342.

Page 7 of 36

Case: 1:12-cv-04039 Document #: 26 Filed: 08/13/13 Page 7 of 36 PageID #:577
There is also a report that recommended Ms. White visit three times per week and indicated

the chiropractor thought Ms. White’s spinal arthritis was in Phase 2.64 The report is followed by a

patient history form that Ms. White contends the chiropractor filled out.65 Finally, there is a selfevaluation form filled out by Ms. White.66 Ms. White recorded that she believed she had limited

ability to perform self-care, an occupation, social activities, and life-support activities.67

Ms. White was seen again by Dr. Rafiq on October 28, 2011 for a follow up of her

hypertension, dyslipidemia, and asthma.68 Her hypertension was described as benign, and no other

limitations were noted.69

B. The Hearing Before The ALJ

Ms. White’s hearing before the ALJ occurred on November 7, 2011 in Chicago, Illinois.70

We will first look at Ms. White’s testimony and then the testimony of the vocational expert (“VE”).

1. Ms. White’s Testimony

To begin the hearing, Ms. White’s attorney, John Horn, stated that Ms. White recently went

to the chiropractor and he entered into evidence some x-ray films taken during that appointment.71

Ms. White testified that she was born on December 18, 1957 and that she is educated through the

twelfth grade, with some college.72 She stated that she lives with her twenty-four year old daughter

and her two grandchildren, aged eighteen months and two months.73 Ms. White testified that her

64 R. at 343.

65 R. at 344-47.

66 R. at 348-49.

67 R. at 349.

68 R at 350.

69 R. at 351.

70 R. at 48.

71 R. at 50.

72 R. at 51-52.

73 R. at 52.

Page 8 of 36

Case: 1:12-cv-04039 Document #: 26 Filed: 08/13/13 Page 8 of 36 PageID #:578
daughter worked at a daycare center, but is not currently working due to the recent birth of her

child.74 Her daughter is collecting unemployment until she returns to work.75

Ms. White stated that she drives, but not very far, typically only to the store.76 She testified

that she had not worked since she quit her part-time job in either September or October of 2010, and

that she stopped working due to her back problems and colitis.77

The ALJ asked Ms. White what kind of medication she was taking for her pain and other

medical problems.78 Ms. White explained that she was taking tramadol for pain, and albuterol for

asthma.79 She stated that she takes all of her medications three times per day.80 Ms. White testified

that her last asthma attack was in September, and that she did not go to the emergency room for

treatment.81 When the ALJ asked Ms. White about her pain, she replied that she has constant pain

in her back on both sides and in the lower portion of her back.82 She continued, stating that she does

not get much sleep at night—sometimes only four to five hours—because she is in constant pain.83

Ms. White stated that sometimes she is up all night in pain.84

In reference to the films submitted to the court on the date of the hearing, the ALJ asked Ms.

White about her recent visit to the chiropractor.85 Ms. White responded that physical therapy had

74 Id. 75 Id. 76 Id. 77 R. at 52-53.

78 R. at 53.

79 Id. 80 Id. 81 R at 53-54.

82 R at 54.

83 Id. 84 Id. 85 Id.

Page 9 of 36

Case: 1:12-cv-04039 Document #: 26 Filed: 08/13/13 Page 9 of 36 PageID #:579
been previously recommended to her, but that she could not afford the treatment and she had no

medical insurance or medical card.86

When asked what she does during the day, Ms. White explained that she typically sits in a

chair or lies in bed watching TV, and sometimes reads magazines or books.87 She testified that she

does not hold her grandchildren because they are too large and heavy, and that she never watches

them without her daughter present.88 Ms. White explained that she plays with them, but cannot hold

them.89

Ms. White reported that due to her colitis she has diarrhea two times a day, sometimes three,

depending on what she eats.90 When asked why her medical records indicate that her colitis is stable

and she has no problems with it, Ms. White stated that it depends on the food she eats, and

confirmed that she has to avoid eating certain foods.91 She explained that depending on what her

daughter cooked, she could not always avoid those foods.92 Ms. White testified that she is able to

do a little bit of simple cooking in the microwave.93

The ALJ asked Ms. White if she was able to do anything outside of the house, such as visit

friends and family or attend church.94 Ms. White responded that she goes to church.95 She also stated

that she used to do a lot of walking in the park, but has not recently.96 She testified that now she

thinks as far as she can walk is from the front door to the car, and that the car is usually right by the

86 R. at 54-55. 87 Id. 88 Id. 89 Id. 90 Id. 91 R at 56.

92 Id. 93 Id. 94 Id. 95 Id. 96 Id.

Page 10 of 36

Case: 1:12-cv-04039 Document #: 26 Filed: 08/13/13 Page 10 of 36 PageID #:580
door.97 When asked about sitting, Ms. White stated that she can sit for a little while without taking

her medications. Ms. White also expressed that she has to take all of her medication to function.98

The ALJ next asked Ms. White about her ability to lift, recognizing her inability to lift her

grandchildren.99 She responded that she does not usually lift anything.100 Ms. White testified that she

could sometimes use her fingers to button clothing, but that she experiences cramps and knots in her

fingers.101

Ms. White stated that she is not looking for work.102 When asked if she tries to help out

around the house, she stated that she used to go grocery shopping but no longer goes because she

gets very sweaty from all the walking.103 She indicated that her daughter takes care of most of the

grocery shopping.104

Ms. White and the ALJ also discussed Ms. White’s ability to follow what she watches or

reads.105 Ms. White stated that when she takes her medications, she has no problems and is able to

concentrate and follow along.106 She also stated that she was not aware of any side effects caused

by her medication at the time.107

The ALJ asked Ms. White about how she feels when in large crowds.108 Ms. White replied

first that it does not bother her too much to be around people.109 However, after vaguely referencing

97 R. at 57.

98 Id. 99 Id. 100 Id. 101 R. at 57-58. 102 R at 58. 103 Id. 104 Id. 105 Id. 106 Id. 107 R at 59. 108 Id. 109 Id.

Page 11 of 36

Case: 1:12-cv-04039 Document #: 26 Filed: 08/13/13 Page 11 of 36 PageID #:581
a recent event in which she was at the store with her daughter, she concluded that she does not like

to be in crowds.110

Ms. White explained that her most recent part-time work was as a bus monitor.111 She stated

that she enjoyed the work because it was easy and all she had to do was ride the bus with the kids.112

Ms. White’s attorney, Mr. Horn, then asked some additional questions.113 Mr. Horn asked

Ms. White again about the tramadol and whether there were any side effects.114 Ms. White responded

that she had forgotten before, but sometimes the medicine upset her stomach.115 Ms. White testified

that she lies down during the day, three to four times for about three hours total because her back

and legs, particularly the left leg, bother her.116 Mr. Horn asked Ms. White how long she had been

seeing her treating physician, Dr. Rafiq, and she responded that it had been since either 1995 or

1997.117

Mr. Horn asked if Ms. White takes any medication for side effects.118 She responded that she

had taken medication in the past for side effects, but was taken off of the medication by Dr. Rafiq

because it upset her stomach.119 Ms. White continued, saying that she started taking medication last

year and that Dr. Rafiq had tried to prescribe her this medication again this year, but it continued to

upset her stomach.120 When asked why she gets anxious, Ms. White simply replied that she gets

agitated and gave no explanation for why.121

110 Id. 111 Id. 112 R. at 59-60. 113 R. at 60. 114 Id. 115 Id. 116 Id. 117 Id. 118 R. at 61. 119 Id. 120 Id. 121 Id.

Page 12 of 36

Case: 1:12-cv-04039 Document #: 26 Filed: 08/13/13 Page 12 of 36 PageID #:582
Ms. White testified that she stopped working full time in either 2008 or 2009 due to health

problems.122 She specified that these problems involved her back, right leg and right hand.123

2. The VE’s Testimony

Julie Radke, the vocational expert, testified next.124 She confirmed that she had reviewed the

exhibits in Ms. White’s file before the hearing.125 Attorney John Horn stated that he had no objection

to Ms. Radke serving as a vocational expert in this case.126 The ALJ asked the VE if she needed any

additional information regarding Ms. White’s vocational background before testifying.127 The VE

expressed that the record was unclear about which jobs were full-time and which were part-time.128

The VE continued, referencing the adult disability form, and listed the following jobs: machine

operator for a mailing company from 1993-2008, an unspecified company supervisor position, and

multiple positions in nursing homes that appeared to be full-time.129 The ALJ determined that Ms.

White’s wages in 1998, 1999, and 2003-2008 were of a Substantial Gainful Activity (“SGA”)

level.130 The VE stated that she would focus on those jobs.131

The VE described the following jobs as defined by the Dictionary of Occupational Titles.132

She determined that the school bus monitor position was light and unskilled, and assumed that it was

a part-time position.133 The machine operator position at a mailing company, listed from 1993-2008,

122 Id. 123 R at 62. 124 Id. 125 Id. 126 Id. 127 Id. 128 R. at 62-63. 129 R. at 63. 130 Id. 131 Id. 132 Id. 133 Id.

Page 13 of 36

Case: 1:12-cv-04039 Document #: 26 Filed: 08/13/13 Page 13 of 36 PageID #:583
was also defined as light and unskilled.134 The VE recognized the cook and supervisory position in

a nursing home, but highlighted that Ms. White helped others or watched over the staff for a short

duration—only about 20 minutes—until the manager came in.135 The supervisory position was

defined as semiskilled and light as performed by Ms. White.136 The VE defined Ms. White’s job as

a home health aid as semiskilled and medium.137 Finally, she defined Ms. White’s job as a security

guard as semiskilled and light.138 The ALJ asked the VE if any of the listed semiskilled jobs would

have transferrable skills to other light or sedentary jobs and the VE replied negatively.139

The ALJ asked the VE if for the purpose of her hypotheticals she could answer for an

individual of Ms. White’s age, education and vocational background, and whatever limitations the

ALJ might provide.140 For the first hypothetical, the ALJ asked the VE to include the limitations

from the state agency medical opinion.141 These limitations included being able to perform light

exertional work, a need to alternate sitting and standing to relieve pain or discomfort (provided the

individual would not be off task more than 10% of the work period), the individual can occasionally

climb, and finally, a need to avoid concentrated exposure to extreme cold and concentrated exposure

to extreme fumes, dust, gases and poor ventilation.142 The VE stated that under these assumptions

and limitations, out of Ms. White’s past work, such an individual could perform her school bus

monitor position, the cook position at the nursing home, and the security position.143 The ALJ asked

the VE the number of unexcused absences that might be tolerated by employers cited in this

134 Id. 135 Id. 136 R. at 64. 137 Id. 138 Id. 139 Id. 140 Id. 141 Id. 142 Id. 143 R. at 65.

Page 14 of 36

Case: 1:12-cv-04039 Document #: 26 Filed: 08/13/13 Page 14 of 36 PageID #:584
hypothetical.144 She replied that a maximum of one absence per month would allow the individual

to retain a position.145

The VE also stated that there were other positions in the regional and national economies that

could accommodate the given restrictions, including the positions of mail clerk, office helper and

receptionist.146 She noted that there are 2,885 mail clerk positions in the northern Illinois, 14-county

region, 6,768 office helper positions in that region, and 2,960 receptionist positions in that region.147

The ALJ moved to a second hypothetical, one where the individual had the same age,

education and vocational background as Ms. White, and the limitations expressed by Ms. White’s

treating physician, Dr. Rafiq.148 Those limitations include occasional lifting of no more than twenty

pounds, standing and/or walking less than four hours of an eight-hour day, sitting less than four

hours of an eight-hour day, no climbing ladders and ropes, occasional pushing and pulling of the

hands, pushing and pulling of the feet, only occasional climbing of ramps and stairs, occasional

balancing, stooping, kneeling, crouching and crawling, and occasional reaching, handling and

fingering.149 The VE stated that with those limitations, an individual of Ms. White’s age, education

and background would be unable to perform any of Ms. White’s past work.150 The VE testified that

such a person could do work somewhere between sedentary and light.151 The VE also noted that Dr.

Rafiq’s assessment renders Ms. White unable to hold a position with an eight-hour workday.152

144 R. at 67. 145 Id. 146 R. at 65. 147 Id. 148 Id. 149 R. at 65-66. 150 R at 66. 151 Id. 152 Id.

Page 15 of 36

Case: 1:12-cv-04039 Document #: 26 Filed: 08/13/13 Page 15 of 36 PageID #:585
Mr. Horn then questioned the VE.153 Mr. Horn asked the VE if an unscheduled break to lie

down due to back pain for even just an hour a day would preclude work, and she answered

affirmatively.154 Mr. Horn also asked if there were any inconsistencies with the Dictionary of

Occupational Titles and the VE confirmed there were not.155 Lastly, Mr. Horn asked if limiting Ms.

White to sedentary work would preclude her past work, and the VE said yes.156 Mr. Horn then

suggested that if the ALJ split the difference between Dr. Rafiq’s assessment and the state agency

assessment, Ms. White would be at a clinical sedentary work level.157

Finally, when asked if she would like to add anything, Ms. White testified that she does not

enjoy being unemployed and that sitting around doing nothing and being unable to hold her

grandchildren hurts her.158

C. The ALJ’s Decision

In an opinion issued on November 30, 2011, the ALJ concluded that Ms. White was not

disabled within the meaning of the Act at any time after her alleged onset date of January 1, 2010.159

Although the ALJ decided that Ms. White met the non-disability requirements for disabled widow’s

benefits under the SSA, she found that Ms. White was capable of performing her past relevant

work.160

SSA regulations prescribe a sequential five-part test for ALJs to use in determining whether

a claimant is disabled.161 The ALJ’s first step is to consider whether the claimant is presently

153 R. at 67. 154 Id. 155 Id. 156 R. at 68. 157 R at 68-69. 158 R at 68. 159 R. at 24-33. 160 R. at 27, 31. 161 20 C.F.R. § 404.1520(a)(1).

Page 16 of 36

Case: 1:12-cv-04039 Document #: 26 Filed: 08/13/13 Page 16 of 36 PageID #:586
engaged in any substantial gainful activity which would preclude a disability finding.162 In the

present case, the ALJ determined that Ms. White has not engaged in any substantial gainful activity

since the alleged onset date of January 1, 2010.163

The second step is for the ALJ to consider whether the claimant has a severe impairment or

combination of impairments.164 In the present case, the ALJ concluded that Ms. White had the

medically determinable severe impairments of stable asthma, stable colitis, mild lumbar

degenerative disc disease, hypertension, and hyperlipidemia.165

The ALJ’s third step is to consider whether the claimant’s impairments meet or equal any

impairment listed in the regulations as being so severe as to preclude gainful activity.166 In the

present case, the ALJ determined that Ms White’s impairments did not meet or medically equal an

impairment under 20 C.F.R. Part 404, Subpart P, Appendix 1.167 The ALJ considered sections 3.02

and 3.03 of the listings and found that Ms. White’s asthma did not meet or equal any of the

requirements.168 The ALJ also considered 1.04 of the listings and concluded that none of the

requirements of the musculoskeletal listings have been shown in the record.169 The ALJ further

concluded that Ms. White’s hypertension does not meet any of the listings of the cardiovascular

system, and that her colitis does not meet the requirements of listing 5.06 on inflammatory bowel

disease or any listings for the digestive system.170

In the event that none of the claimant’s impairments meet the listing requirements, the ALJ

162 20 C.F.R. § 404.1520(a)(4)(i). 163 R. at 27. 164 20 C.F.R. § 404.1520(a)(4)(ii). 165 R. at 27. 166 20 C.F.R. § 404.1520(a)(4)(iii). 167 R. at 29. 168 Id. 169 Id. 170 Id.

Page 17 of 36

Case: 1:12-cv-04039 Document #: 26 Filed: 08/13/13 Page 17 of 36 PageID #:587
proceeds to the fourth step of the test: whether the claimant has the residual functional capacity

(“RFC”) to perform the requirements of her past relevant work.171 The ALJ must evaluate the

claimant’s RFC based on the record, the claimant’s testimony, and a comparison of the requirements

of her past work.172 The RFC is an assessment of the maximum work-related activities a claimant

can perform despite her impairments.173

If determining the claimant’s RFC requires the ALJ to assess subjective complaints, then 

the ALJ follows a two-step process.174 First, the ALJ decides whether there is an underlying

medically determinable impairment—an impairment that can be shown by medically acceptable

clinical and laboratory diagnostic techniques—that could reasonably be expected to produce the

claimant’s symptoms.175 If such an impairment exists, the ALJ then evaluates the intensity,

persistence, and limiting effects of a claimant’s symptoms to determine the extent to which they

limit the claimant’s functioning.176 The ALJ must consider the entire record when making decisions

about the credibility of the claimant’s subjective complaints.177 If, after this process, the ALJ

determines that the

claimant’s RFC makes her able to perform her past work, she is not found to be disabled.178

 In the present case, the ALJ found that Ms. White had the RFC “to perform light work as

defined in 20 C.F.R 404.1567(b)” except for “the need for a sit/stand at will option,” she could only

partake in the “occasional climbing of ladders, ropes, or scaffolds, ramps, or stairs,” and Ms. White

171 20 C.F.R. § 404.1520(a)(4)(iv). 172 20 C.F.R. § 404.1520(e). 173 20 C.F.R. § 404.1545. 174 S.S.R. 96-7p. 175 Id. 176 Id. 177 Id. 178 S.S.R. 96-8p.

Page 18 of 36

Case: 1:12-cv-04039 Document #: 26 Filed: 08/13/13 Page 18 of 36 PageID #:588
should “avoid concentrated exposure to cold, environmental irritants, and poorly ventilated areas.”179

In terms of Ms. White’s subjective complaints, although the ALJ found that her “medically

determinable impairments could reasonably be expected to cause some of the alleged symptoms,”

she also found that Ms. White’s statements “concerning the intensity, persistence and limiting effects

of these symptoms are not credible to the extent they are inconsistent” with her RFC assessment.180

In determining Ms. White’s credibility, the ALJ found that the record did not support the

kind of treatment that would be expected from her subjective complaints.181 The ALJ specifically

noted that Ms. White’simpairments were “repeatedly described as mild,stable and controlled,” and

“tests and studies did not support her allegations.”182 The ALJ also pointed to the inconsistency

between Ms. White’s statement to the consulting examiner that she had physical therapy, and her

denial in her testimony that she had such therapy.183 The ALJ found it relevant that Ms. White had

only recently begun to see a chiropractor, contradicting her complaints of long-term pain and

weakness.184 Overall, the ALJfound that Ms.White’s treatment had been “routine and conservative”

and “she was not seen or referred by her treating physician to any specialist.”185

In further support of her credibility finding, the ALJ stated that Ms. White’s subjective

complaints were not fully credible because she performed normal daily activities such as going to

church and cooking, and the ALJ did not believe Ms. White could recline all day with two

grandchildren in the house.186 The ALJ noted that there was no medical evidence in the record that

179 R. at 29. 180 R. at 30. 181 Id. 182 Id. 183 Id. 184 Id. 185 Id. 186 Id.

Page 19 of 36

Case: 1:12-cv-04039 Document #: 26 Filed: 08/13/13 Page 19 of 36 PageID #:589
suggested Ms. White laid down three hours a day.187 Finally, the ALJ expressed that Ms. White’s

claim that she had diarrhea two or three times a day was contradictory to the medical evidence that

showed Ms. White’s colitis was stable.188

Turning to the opinion evidence, the ALJ explained that she gave little weight to the opinion

of Dr. Rafiq.189 The ALJ believed the opinion to be “sympathetic” and “based upon the claimant’s

subjective complaints.”190 The ALJ decided Dr. Rafiq’s statements were conclusory and inconsistent

with the medical record as a whole, which showed “no support for significant limitations in the

claimant’s ability to stand, walk or sit.”191 The ALJ also gave little weight to the argument of the

attorney in his brief of October 1, 2011, because it was based on the opinion of Dr. Rafiq.192

However, the ALJ gave considerable weight to the state agency physician, describing her opinion

as “fully supported by the evidence of the record.”193

The ALJ found that Ms. White was “capable of performing past relevant work as a security

guard, school bus monitor, and cook” and that this work did “not require the performance of

work-related activities precluded by” Ms. White’s RFC.194 In comparing Ms. White’s RFC “with

the physical and mental demands of this work,” the ALJ found that Ms. White was “able to perform

it as actually and generally performed.”195 In determining this, the ALJ relied on the VE’s

testimony.196 The VE stated that “the claimant’s job as a security guard was at a light exertional level

and semiskilled, that her job as a school bus monitor was light unskilled, and that her job as a cook

187 Id. 188 Id. 189 Id. 190 Id. 191 Id. 192 Id. 193 Id. 194 Id. 195 Id. 196 Id.

Page 20 of 36

Case: 1:12-cv-04039 Document #: 26 Filed: 08/13/13 Page 20 of 36 PageID #:590
at a nursing home was light and semiskilled.”197 The VE testified that with the RFC the ALJ has

assigned, Ms. White would be able to perform all three jobs.198

Finally, though the ALJfound that Ms. White could perform her past relevant work and was

thus not disabled within the meaning of the Act, she proceeded to the fifth step for alternative

findingsregarding whether Ms. White could make a successful adjustment to other work.199 At step 

five, the ALJ must determine whether the claimant is able to do any other work considering her

RFC, age, education, and work experience.200 If the claimant is able to do other work, she is not

disabled.201 In order to support a finding that an individual is not disabled at this step, the SSA is

responsible for providing evidence that demonstrates that other work exists in significant numbers

in the national economy that the claimant can do.202

Based on the VE’stestimony, the ALJlisted positions which Ms.White could easily assume,

including a mail clerk with 2,885 jobs in the Chicago metropolitan area, an office helper with 6,768

jobs in the Chicago metropolitan area, and a receptionist with 2,960 jobs in the Chicago metropolitan

area.203 Assessing Ms. White’s age, education, work experience, and RFC, the ALJ concluded that

she was capable of performing other work that existed in significant numbers and, thus, was not

disabled under the framework of Medical Vocational Guidelines section 202.14.204

III. Standard of Review

The Court must sustain the Commissioner’s findings of fact if they are supported by

197 Id. 198 Id. 199 Id. 200 20 C.F.R. § 404.1520(g). 201 Id. 202 20 C.F.R. §§ 404.1512(g) and 404.1560(c). 203 R. at 32. 204 Id.

Page 21 of 36

Case: 1:12-cv-04039 Document #: 26 Filed: 08/13/13 Page 21 of 36 PageID #:591
substantial evidence and are free of legal error.205 Substantial evidence is relevant evidence that a

reasonable mind might accept as adequate to support a conclusion.206 The standard of review is

deferential, but the reviewing court must conduct a critical review of the evidence before affirming

the Commissioner’s decision.207 Where conflicting evidence allows reasonable minds to differ, the

responsibility for determining whether a plaintiff is disabled falls upon the Commissioner and not

the Court.208 Although the ALJ need not address every piece of evidence or testimony presented, he

must adequately discussthe issues and build a logical bridge fromthe evidence to his conclusions.209

The Court will conduct a critical review of the evidence and will not uphold the ALJ’s decision if

it lacks evidentiary support or if the Commissioner applied an erroneous legal standard.210

IV. Analysis

Ms. White argues that the Courtshould reverse and remand the decision of the ALJ because

the ALJfailed to: (1) properly evaluate her credibility; (2) give appropriate weight to opinions from

both her treating physician and chiropractor in the RFC assessment; and (3) obtain a medical source

statement (“MSS”) from the consultative examiner, which denied her right to equal protection and

due process. We find no error on the part of the ALJ with respect to each of these arguments.

Overall, we determine that the ALJ constructed a logical bridge from the record to her conclusions

and that she provided adequate support for her arguments.

205 42. U.S.C. § 405(g). 206 McKinzey v. Astrue, 641 F.3d 884, 889 (7th Cir. 2011) (citing Nelms v. Astrue, 553 F.3d 1093, 1097 (7th

Cir. 2009)). 207 Eichstadt v. Astrue, 534 F.3d 663, 665 (7th Cir. 2008). 208 Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir. 1990) (citing Walker v. Bowen, 834 F.2d 635, 640 (7th Cir.

1987)). 209 Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010). 210 Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000).

Page 22 of 36

Case: 1:12-cv-04039 Document #: 26 Filed: 08/13/13 Page 22 of 36 PageID #:592
A. The ALJ’s Credibility Determination

First, Ms. White contends that the ALJ’s credibility determination was erroneous.

Specifically, Ms. White argues that the ALJ erred by improperly: (1) relying on Ms. White’s history

of routine and conservative treatment; and (2) rejecting her testimony because it was inconsistent

with objective medical evidence. Ms. White also points to the ALJ’s use of boilerplate language and

how such language implies that the ALJ determined Ms. White’s RFC before assessing her

credibility. However, because the Seventh Circuit has not remanded cases just for the use of such

language,211 we will not further address this point.

An ALJ’s credibility determination cannot be invalidated unless it is “patently wrong.”212 In

determining whether a credibility determination is “patently wrong,” the court examines whether

the ALJ’s determination was reasoned and supported.213 The Seventh Circuit explained that an ALJ

needs only to “minimally articulate his or her justification for rejecting or accepting specific

evidence of disability.”214 “It is only when the ALJ’s determination lacks any explanation or support

that [a court] will declare it to be ‘patently wrong.’”215 Additionally, when determining credibility,

an ALJ must consider the entire case record, including the claimant’s statements and the opinions

of treating or examining physicians and other persons.216 Under S.S.R. 96-7p, an ALJ’s credibility

determination “must contain specific reasons for the finding on credibility, supported by the

211 See, e.g., Carter v. Astrue, 413 F. App’x 899, 905-06 (7th Cir. 2011) (refusing to remand simply because

of the inclusion of a template credibility finding and holding that the ALJ provided an adequate explanation for his

credibility finding). 212 Prochaska v. Barnhart, 454 F.3d 731, 738 (7th Cir. 2008); Sims v. Barnhart, 309 F.3d 424, 431 (7th Cir.

2002). 213 See Jens v. Barnhart, 347 F.3d 209, 213–14 (7th Cir. 2003); Powers v. Apfel, 207 F.3d 431, 435 (7th Cir.

2000). 214 Rice v. Barnhart, 384 F.3d 363, 371 (7th Cir. 2004) (quoting Steward v. Bowen, 858 F.2d 1295, 1299

(7th Cir. 1988)). 215 Elder v. Astrue, 529 F.3d 408, 413–14 (7th Cir. 2008) (quoting Jens, 347 F.3d at 213). 216 S.S.R. 96–7p.

Page 23 of 36

Case: 1:12-cv-04039 Document #: 26 Filed: 08/13/13 Page 23 of 36 PageID #:593
evidence in the case record, and must be sufficiently specific to make clear to the individual and any

subsequent reviewers the weight the adjudicator gave to the individual’s statements and the reasons

for that weight.”217 Finally, in determining the claimant’s credibility, the ALJ may not ignore the

claimant’s statements regarding pain and other symptoms or disregard them merely because they

are not substantiated by objective medical evidence.218

1. History of Conservative and Routine Treatment

Ms. White argues that the ALJ erred in making her credibility determination by finding that 

she has not had sufficient treatment.219 The Commissioner responds that the ALJ reasonably found

that Ms. White’s lack of ongoing treatment was inconsistent with her subjective claims regarding

the extent of her impairments. We agree with the Commissioner. 

 Ms. White argues that the ALJ cannot determine what is sufficient treatment if the record

is devoid of any evidence that she could return to work were she to obtain such treatment. However,

the standard Ms. White states is inaccurate. The regulations allow an ALJ to consider a claimant’s

treatment regiment in comparison to their claimed limitations,220 and this Court is “required to give

deference to the ALJ’s factual determination stemming from that history.”221 An ALJ may find that

a claimant’s failure to seek regular or appropriate treatment detracts from her credibility,222 whether

or not that individual could return to work if they obtained such treatment. 

Ms. White further argues that the ALJ improperly determined her treatment was insufficient

to match her complaints because Ms. White testified that she does not have medical insurance or a

217 Id. 218 Id. 219 R. at 30. 220 20 C.F.R. § 404.1529(c)(3)(v). 221 Jones v. Astrue, No. 11 CV 3958, 2012 WL 4120417 at *8 (N.D. Ill. Sept. 18, 2012). 222 Sienkiewicz v. Barnhart, 409 F.3d 798, 804 (7th Cir. 2005).

Page 24 of 36

Case: 1:12-cv-04039 Document #: 26 Filed: 08/13/13 Page 24 of 36 PageID #:594
medical card. It is true that the ALJ should “not draw any inferences about an individual's symptoms

and their functional effects from a failure to seek or pursue regular medical treatment without first

considering any explanations that the individual may provide, or other information in the case

record, that may explain . . . failure to seek medical treatment.”223 But it appears that the ALJ did

consider these factors in her analysis. 

In describing the facts of the case, the ALJ specifically mentions Ms. White’s testimony

about having been recommended physical therapy but being unable to afford it, and Ms. White’s

statements that she had no medical insurance or medical card.224 And as the Commissioner points

out, the record shows that Ms. White saw and consulted her treating physician regularly despite not

having medical insurance. Further, the ALJ describes in her credibility determination that most of

Ms. White’s visits to Dr. Rafiq did not reflect more than mild problems or complaints.225 The ALJ

also supports her conclusion with the fact that Dr. Rafiq never referred Ms. White to a specialist, Ms.

White gave conflicting statements about whether or not she had ever been to a physical therapist,

there was no evidence in the record of any kind of physical or rehabilitative therapy, and the first

time Ms. White saw a chiropractor was only a month before the hearing.226

From the Court’s perspective, though Ms. White had limited funds and no medical insurance,

the ALJ had sufficient evidence beyond Ms. White’s financial means to support why her care had

been routine and conservative. It was reasonable for the ALJ to find that such treatment undermined

Ms. White’s claims of disabling impairments. 

2. Testimony Inconsistent with Objective Medical Evidence

223 S.S.R. 96-7p. 224 R. at 28-29. 225 See R. at 308 (routine visit), 310-14 (laceration), 319-20 (twitching in the right eye), 325 (routine visit),

353 (routine screening and complaint of a cold). 226 R. at 30.

Page 25 of 36

Case: 1:12-cv-04039 Document #: 26 Filed: 08/13/13 Page 25 of 36 PageID #:595
Ms. White also argues that the ALJ placed too much weight on the lack of objective medical

evidence in support of Ms. White’s subjective claims. She states that her allegations of pain and

symptoms cannot be rejected only because of a lack of objective medical evidence. Ms. White then

cites to Carradine v. Barnhart227 in support of this assertion. But we cannot see how the case is

relevant to her argument. Carradine involves a claimant whose pain had psychological origins,

which supported the idea that doctors could not find objective medical reasons for her pain.228 Such

is not the case here.

Ms. White’s pain is not psychological, and the ALJ’s assertion that her allegations of pain

and disability are not supported by objective medical evidence is grounded in the record. The ALJ

noted that Ms. White’s visits to her doctors were routine, and she often had no complaints and

displayed no abnormalities.229 The ALJ also found it difficult to believe Ms. White laid down three

hours every day when she had two young grandchildren in the house and no objective medical

evidence supported her testimony on the need for that kind of extended rest.230 The ALJ also

referenced the x-ray of Ms. White’s lumbar spine which showed minimal problems,231 and described

how Ms. White’s impairments were regularly referred to as mild, stable and controlled.232

Ms. White specifically took issue with the ALJ’s determination that Ms. White likely did not

experience diarrhea two to three times per day because the record showed her colitis was stable. Ms.

White argues that stable does not mean asymptomatic, and actually means unchanged (i.e. that she

has consistently had diarrhea two or three times per day). However, Ms. White confuses the doctors’

227 360 F.3d 751, 754-56 (7th. Cir. 2004). 228 Id. 229 R. at 30 (citing R. at 293 (routine visit and complaint of arthritic pains), 301-02 (no complaints), 308-09

(routine visit with no acute distress), 350-51 (follow-up visit)). 230 R. at 30. 231 R. at 30, 277. 232 See, e.g., R. at 256, 269, 293.

Page 26 of 36

Case: 1:12-cv-04039 Document #: 26 Filed: 08/13/13 Page 26 of 36 PageID #:596
reports about her colitis with the ALJ’s description. The Commissioner points out that it was the

ALJ who used the term “stable” to characterize Ms. White’s colitis, not Ms. White’s doctors. The

ALJ described Ms. White’s colitis as stable because her doctors regularly referred to her colitis and

gastrointestinal problems as “benign,”233 and there are no instances in the record where Ms. White

complained to her doctors of diarrhea or other active gastrointestinal problems. The ALJ even asked

Ms. White about her colitis at the hearing, describing to her the inconsistency between the medical

records and her claim that she had diarrhea two to three times a day.234 Ms White replied that it

depends on what she eats and that she has to avoid certain foods,235 implying that her diet directly

affects her colitis. 

Most importantly, Ms White seems to be arguing that an ALJ cannot only look at a lack of

objective medical evidence in deciding a claimant is not credible. But the ALJ supplied several

reasons for her credibility determination outside of those related to the specific medical evidence.

Discussed above, the ALJ found it relevant that Ms. White’s care was routine and conservative.236

Additionally, the ALJ pointed to the discrepancy between Ms. White’s statement to the consulting

examiner that she had physical therapy in the past and her denial of physical therapy during

testimony.237 Finally, the ALJ noted that Ms. White performed normal daily activities such as going

to church and cooking.238

The ALJ appropriately articulated her reasoning for determining that Ms. White’s statements

regarding the extent of her pain and symptoms were not credible. We, therefore, find the ALJ’s

233 See R. at 256, 302, 305, 309, 336. 234 R. at 55-56. 235 R. at 56. 236 R. at 30. 237 Id. 238 Id.

Page 27 of 36

Case: 1:12-cv-04039 Document #: 26 Filed: 08/13/13 Page 27 of 36 PageID #:597
credibility determination is not patently wrong, and must be upheld.

B. The ALJ’s RFC Analysis

Ms. White argues that the ALJ improperly assessed her RFC when she: (1) rejected the

opinion of her treating physician, Dr. Rafiq, and (2) failed to give proper weight to her

chiropractor’s assessment. We find that the ALJ properly discredited Dr. Rafiq’s opinion and that

while the ALJ did err in assessing the chiropractor’s opinion, the error was harmless and would not

warrant remand for the reasons we explain.

1. The Opinion of Ms. White’s Treating Physician

Ms. White argues that the ALJ improperly rejected the opinion of her treating internist, Dr.

Rafiq, because his opinion was supported by medical evidence and was not inconsistent with other

substantial evidence in the record. However, the Commissioner contends that Dr. Rafiq’s opinion

was inconsistent with not only other evidence in the record, but also his own treatment notes,

warranting the ALJ’s decision to give Dr. Rafiq’s opinion little weight.

Generally, the claimant’s treating physician is given more weight, but the opinion will only

be given controlling weight if it is “well-supported by medically acceptable clinical and laboratory

diagnostic techniques and is not inconsistent with the other substantial evidence in the medical

record.”239 The ALJ will determine which treating and examining doctors’ opinions should receive

weight, and in doing so, she must explain the reasons for her findings.240 If the ALJ decides not to

assign controlling weight to the treating physician, she will consider factors such as length of

treatment, nature of treatment, supportability, consistency, specialization, and additional factors to

23920 C.F.R § 404.1527(c); S.S.R. 96-5p; Hofslien v. Barnhart, 439 F.3d 375, 376 (7th Cir. 2006) (finding

that the treating physician's evidence is no longer entitled to controlling weight once well-supported contradicting

evidence is introduced). 24020 C.F.R §§ 404.1527(d) and (f), 416.927(d) and (f); Craft v. Astrue, 539 F.3d 668, 678 (7th Cir. 2008).

Page 28 of 36

Case: 1:12-cv-04039 Document #: 26 Filed: 08/13/13 Page 28 of 36 PageID #:598
determine how much weight to allocate to the opinion of each physician.241 The ALJ must articulate

why particular statements or reports are necessarily inconsistent.242

In this case, the ALJ proffered two main reasons for giving Dr. Rafiq’s opinion “little

weight” as opposed to controlling weight.243 First, the ALJ found that Dr. Rafiq’s opinion was based

on Ms. White’s subjective complaints and was unsupported by his own objective clinical and

laboratory findings.244 The Commissioner points out that while Dr. Rafiq’s opinion placed

considerable restrictions on Ms. White’s ability to sit, stand and walk, “his treatment notes reflected

that [Ms.] White generally came to see him for routine visits or visits on matters unrelated to her

alleged disability.”245 Additionally, the ALJ noted that most of Dr. Rafiq’s examination notes

expressed that Ms. White showed no abnormalities, had only mild problems, or had no complaints

at all.246 With little explanation from Dr. Rafiq for his opinion and without medical evidence from

Ms. White’s visits with him to support it, the ALJ’s determination that his opinion was based on Ms.

White’s subjective complaints is reasonable. Ms. White provides no counter argument to this

reasoning from the ALJ or the Commissioner’s argument and, indeed, it is “[t]he Commissioner, not

a doctor selected by a patient to treat her, [who] decides whether a claimant is disabled.”247

Second, the ALJ found that the “evidence as a whole shows no support for significant

24120 C.F.R § 404.1527(c). 242 Clifford v. Apfel, 227 F.3d 863, 871 (7th Cir. 2000) (explaining that in order to adequately articulate her

reasoning for discounting a treating physician’s opinion, the ALJ must explain why the treating physician’s

statements were inconsistent with others in the record). 243 R at 31. 244 Id. 245 R. at 27-28 (ALJ describing Ms. White’s numerous visits to Dr. Rafiq); see R. at 269 (complaints of

chest pain), 308 (routine visit), 310-14 (laceration), 319-20 (twitching in the right eye), 325 (routine visit), 353

(routine screening and complaint of a cold). 246 R. at 27-28 (ALJ describing Ms. White’s numerous visits to Dr. Rafiq); see e.g. R. at 256 (complaints of

lower back pain and cold for a few days), 269 (complaints of chest pain), 301-02 (no complaints), 304 (no

complaints), 309 (no acute distress, ailments described as controlled and stable). 247 Dixon v. Massanari, 270 F.3d 1171, 1177 (7th Cir. 2001); 20 C.F.R.§ 404.1527(d)(2).

Page 29 of 36

Case: 1:12-cv-04039 Document #: 26 Filed: 08/13/13 Page 29 of 36 PageID #:599
limitations in the claimant’s ability to stand, walk or sit.”248 Ms. White argues that Dr. Rafiq’s

opinion is supported by the consultative examination of January 27, 2011, which found reduced

range of motion in the lumbar spine, hips and knees, and difficulty walking on heels and toes. We

do not see how the results of the consultative examination are fully supportive of the significant

limitations Dr. Rafiq’s opinion placed on Ms. White’s abilities. Without more information, notes that

only describe reduced range of motion and difficulty walking on heels and toes do not translate to

a requirement that Ms. White can only stand and walk less than four hours of an eight hour day and

sit less than four hours of an eight hour day. 

Ms. White also argues that the observations of her chiropractor support Dr. Rafiq’s opinion.

Again, while the chiropractor’s notes indicate lower back pain and cervical spine pain and

recommend a four-week treatment plan, without more it does not support Dr. Rafiq’s particular

restrictions. There was also a questionnaire at the end of the chiropractor’s notes that Ms. White

filled out herself. While there was initially some confusion regarding this questionnaire that we will

discuss in the next section, because the observations from the assessment were Ms. White’s own,

the ALJ was not in error in failing to address them.249 

The ALJ’s reasoning is sufficient: that she did not give the opinion of Dr. Rafiq controlling

weight because his opinion is inconsistent with his own treatment notes and the rest of the medical

record, including the chiropractor’s opinion. Thus, we conclude that the ALJ’s decision to give Dr.

Rafiq’s opinion little weight was supported by substantial evidence, and the ALJ created the

necessary “logical bridge” connecting the evidence with her conclusion.250

248 R. at 31. 249 See R. at 28, 348-49. 250 See Jones, 623 F.3d at 1160 (“The ALJ is not required to address every piece of evidence or testimony

presented, but must provide a ‘logical bridge’ between the evidence and the conclusions”).

Page 30 of 36

Case: 1:12-cv-04039 Document #: 26 Filed: 08/13/13 Page 30 of 36 PageID #:600
2. The Chiropractor’s Assessment

Ms. White additionally argues that the ALJ failed to give proper weight to the chiropractor’s

assessment because despite mentioning the chiropractor’s evidence in her decision, she never

indicated what weight, if any, she gave it. The Commissioner responds that what we have from the

chiropractor in the record is not an opinion at all, and the ALJ was not required to consider it. While

we do believe the ALJ should have explained whether or not she took the chiropractor’s assessment

into consideration, we find that the error is harmless.

Under 20 C.F.R. § 404.1513, outside of acceptable medical sources, an ALJ may consider

evidence from other medical sources such as chiropractors.251 “Since there is a requirement to

consider all relevant evidence in an individual's case record, the case record should reflect the

consideration of opinions from medical sources who are not ‘acceptable medical sources.’”252 The

ALJ generally should explain the weight given to opinions from such sources, or “otherwise ensure

that the discussion of the evidence in the . . . decision allows a claimant or subsequent reviewer to

follow the adjudicator's reasoning, when such opinions may have an effect on the outcome of the

case.”253

There was much confusion regarding the evidence from the chiropractor and whether it was

the chiropractor or Ms. White who filled out certain pages. The ALJ in her opinion seemed to think

that the chiropractor had filled out, on behalf of Ms. White, the questionnaire that appears at the end

of the report.254 In her first brief, Ms. White agreed with the ALJ’s conclusion and attempted to

argue that the chiropractor’s statements in the questionnaire were supportive of Dr. Rafiq’s opinion.

251 20 C.F.R. § 404.1513(d). 252 S.S.R. 06-03p. 253 Id. 254 R. at 28 (citing R. at 348) 

Page 31 of 36

Case: 1:12-cv-04039 Document #: 26 Filed: 08/13/13 Page 31 of 36 PageID #:601
However, in her reply brief, Ms. White changed her tune and admitted that she had, in fact, filled

out the questionnaire and only the other pages in the report were filled out by the chiropractor. 

Despite the confusion on both sides, we have determined that it is likely the physician

evaluation and treatment plan, the report that follows, and the patient history were all completed by

the chiropractor.255 In contrast, Ms. White filled out the questionnaire at the end of the chiropractic

records as a self-assessment.256 Though the Commissioner argues that even the pages filled out by

the Chiropractor do not constitute an opinion and, thus, the ALJ need not have considered it, he cites

no law to support this claim. Nonetheless, despite the Commissioner’s incorrect contention, we do

not feel the ALJ’s failure to discuss the weight given to the chiropractor report warrants remand.

The reviewing court is not permitted to upset the agency’s decision if a discovered error is

deemed to be harmless.257 “If it is predictable with great confidence that the agency will reinstate

its decision on remand because the decision is overwhelmingly supported by the record,” then the

error is harmless and it is inappropriate to remand.258

While it would have been helpful and appropriate for the ALJ to explain any weight she gave

to the chiropractor’s report instead of just describing the contents of the report, we do not believe

it would change the outcome of this case had the ALJ done so. Ms. White takes issue with the fact

that the ALJ did not use the criteria in C.F.R. § 404.1527(c) to evaluate the report. The factors an

ALJ should consider include how long the source has known, and how frequently the source has

seen, the individual, how consistent the opinion is with other evidence, the degree to which the

source presents relevant evidence to support an opinion, how well the source explains the opinion,

255 See R. at 342-47. 256 See R. at 348-49. 257 Sanchez v. Barnhart, 467 F.3d 1081, 1082-83 (7th Cir. 2006). 258 Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir. 2010).

Page 32 of 36

Case: 1:12-cv-04039 Document #: 26 Filed: 08/13/13 Page 32 of 36 PageID #:602
whether the source has a specialty or area of expertise related to the individual’s impairment(s), and

any other factors that tend to support or refute the opinion.259

While we do not know what weight the ALJ would have given to the chiropractor’s opinion,

in considering the above factors we conclude that the chiropractor’s report was consistent with

opinions the ALJ had already adopted. In the record we have only Ms. White’s initial screening

examination with the chiropractor to evaluate. Ms. White had no treatment history with the

chiropractor except for that first meeting. At the initial screening, the chiropractor gave a diagnosis

of lower back pain and pain in the cervical spine and found that Ms. White had some limits in her

range of motion.260 This diagnosis is consistent with the opinion of Dr. Patil, which noted that Ms.

White was impaired by degenerative disc disease and had some limits in the range of motion of her

lower back, hips and knees.261 The ALJ accommodated these range of motion limits in her RFC

assessment by adopting Dr. Pilapil’s opinion.262

Ms. White argues that the treatment plan submitted by the chiropractor, which recommended

visits several times per week for four weeks for therapy, manipulation, and other treatment,263

diagnosed further problems with Ms. White that the ALJ should have considered. However, the

treatment goals Ms. White is concerned with are simply checked boxes on the evaluation and

treatment plan. It should be noted that the chiropractor checked every single box available under the

treatment goals section of the plan, including the goals to “[d]ecrease pain,” “[d]ecrease spasm,”

“[d]ecrease swelling,” “[i]ncrease strength,” “[r]estore structural integrity,” and “[d]ecrease fibrosis

259 20 C.F.R. § 404.1527(c). 260 R. at 342-47. 261 R. at 27. 262 R. at 31 (citing R. at 279-86). 263 R. at 342.

Page 33 of 36

Case: 1:12-cv-04039 Document #: 26 Filed: 08/13/13 Page 33 of 36 PageID #:603
of repair.”264 We cannot assume from the treatment goals alone that the chiropractor was trying to

diagnose additional pain, spasm, swelling, or any particular problem, especially because such issues

are not listed in the chiropractor’s preliminary diagnoses. Two of the factors to consider are the

degree to which the source presents relevant evidence to support an opinion, and how well the

source explains the opinion.265 There are no notes giving additional information on why the

chiropractor chose the treatment goals he did and no other medical evidence to support his

recommendations. Ms. White argues that these treatment goals are in line with Dr. Rafiq’s opinion,

but the ALJ properly discredited that opinion.

Finally, Ms. White cites frequently to Johnson v. Astrue for the contention that we must

remand the case because the ALJ ignored the chiropractor’s opinion and examination results.266

However, in Johnson the claimant had a consistent, ongoing relationship with his chiropractor that

is not found here.267 Ms. White saw her chiropractor only once. Also, despite the ALJ’s

determination in Johnson that the chiropractor’s opinion was inconsistent with that of two treating

physicians, the court deemed that the chiropractor’s opinion was consistent with those of the treating

physicians.268 Here, we have found that the chiropractor’s opinion is consistent with both the

opinions adopted by the ALJ, that of Dr. Pilapil and Dr. Patil.

Therefore, despite the ALJ’s error in discussing the chiropractor’s opinion, we cannot

remand a case where we are reasonably certain the outcome would be the same if the error was

corrected.269 Thus, we must uphold the ALJ’s RFC analysis. 

264 Id. 265 20 C.F.R. § 404.1527(c). 266 No. 11 C 3989, 2012 WL 3205039 at *10-11 (N.D. Ill. Aug. 2, 2012). 267 Id. 268 Id. 269 See Spiva, 628 F.3d at 353. 

Page 34 of 36

Case: 1:12-cv-04039 Document #: 26 Filed: 08/13/13 Page 34 of 36 PageID #:604
C. The ALJ’s Decision Not to Obtain a Medical Source Statement from the 

Consultative Examiner

Ms. White’s final argument is that the ALJ’s failure to obtain a medical source statement

from the consultative examiner, or have him testify, denied her right to equal protection, due

process, and, somehow, interstate travel. Ms. White’s support for this argument comes from her

contention that claimants in Arizona and Tennessee allegedly receive medical source statements

from consultative examiners, so claimants in Illinois must as well.

As the Commissioner correctly points out, controlling S.S.R. regulations state that although

a medical source statement is usually requested, “the absence of such a statement in a consultative

examination report will not make the report incomplete.”270 Ms. White cites to the POMS handbook

for SSA employees in support of her claim that medical source statements are required, but the

handbook specifically says that the absence of a medical source statement does not render the report

incomplete.271 It follows that neither the POMS nor the regulations impose a duty to obtain a medical

source statement if the consultative examiner’s report does not include one.

Further, we do not believe that the lack of a medical source statement amounts to a

constitutional violation. Ms. White herself points out that the Seventh Circuit rejected her reasoning

on this issue in Dornseif v. Astrue, but argues that this case is distinguishable because here the issue

was presented to the ALJ before the hearing, as opposed to being raised for the first time in front of

the Appeals Council in Dornseif. We disagree. The Seventh Circuit reasoned that “the examples

cited by Dornseif fall short of showing that the Commissioner’s practice is unlawfully

discriminatory,” and that is still true in the case of Ms. White.272 In fact, the Commissioner counters

270 20 C.F.R. §§ 404.1519n(c)(6), 416.919n(c)(6). 271 POMS 22510.015(B)(2). 272 No. 12-2408, Slip Opinion at 4 (Nonprecedential disposition) (7th Cir. Jan. 15, 2013).

Page 35 of 36

Case: 1:12-cv-04039 Document #: 26 Filed: 08/13/13 Page 35 of 36 PageID #:605
Ms. White’s claims with an official SSA report that provides a statistical evaluation of

administrative appeals at the state agency and hearing level. The report shows that Illinois approves

a higher percentage of claims at the initial and reconsideration levels than either Arizona or

Tennessee.273 This suggests that Illinois residents are not disadvantaged compared to residents in

those states. We, therefore, find that the decision not to order a medical source statement was

entirely supported by the regulations and did not infringe on Ms. White’s equal protection rights. 

V. Conclusion

For the reasons outlined, Ms. White’s motion for summary judgment [dkt. 14] is denied, and

the Commissioner’s motion for summary judgment [dkt. 22] is affirmed.

IT IS SO ORDERED.

ENTERED: August 13, 2013 ___________________________

UNITED STATES MAGISTRATE JUDGE

Susan E. Cox

273 Social Security Advisory Board, Aspects of Disability Decision Making: Data and Materials (February

2012); http://www.ssab.gov/Publications/Disability/GPO_Chartbook_FINAL_05212012.pdf.

Page 36 of 36

Case: 1:12-cv-04039 Document #: 26 Filed: 08/13/13 Page 36 of 36 PageID #:606