UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

LATESHA MOON, )

)

Plaintiff, )

) No. 12-CV-05593

v. )

) Magistrate Judge Susan E. Cox

MICHAEL ASTRUE, )

Commissioner of Social Security, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff, Latesha Moon, seeks judicial review of a final decision of the Commissioner of the

Social Security Administration (“SSA”) denying her application for Supplemental Security Income

(“SSI”) and Social Security Disability Insurance (“SSDI”) benefits (collectively herein, “disability

benefits”) under the Social Security Act (“Act”).1 Ms. Moon has filed a motion for summary

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

issues raised herein. For the reasons set forth below, Ms. Moon’s motion is denied [dkt. 16].

I. PROCEDURAL HISTORY

Ms. Moon applied for SSI and SSDI benefits on September 5, 2008.2

 Ms. Moon alleged she

became disabled on August 27, 2008,3

 due to morbid obesity, chronic back pain, hip problems, knee

problems, and migraines.4

 The SSA denied Ms. Moon’s applications on November 20, 2008,5 and

1

42 U.S.C. §§ 416(I), 423, and 1381 et seq. 2

R. at 154, 159.

3

R. at 154.

4

R. at 95.

5

R. at 96.

Page 1 of 41
denied her request for reconsideration on January 22, 2009,6

 because the SSA found that Ms. Moon

was still able to perform sedentary work and other types of work less demanding than Ms. Moon’s

previous work.7

Then on March 17, 2009, Ms. Moon requested a hearing before an SSA Administrative Law

Judge (“ALJ”)8 which the SSA granted on April 7, 2009.9 ALJ Curt Marceille conducted the hearing

on May 4, 2010.10 Following the hearing the ALJ issued an unfavorable decision on December 1,

2010, concluding that Ms. Moon was not disabled under sections 216(i), 223(d) and 1614(a)(3)(A)

of the Act.11

Next, on January 4, 2011, Ms. Moon requested the SSA Appeals Council (“AC”) review the

ALJ’s unfavorable decision.12 Between September 30, 2011, and February 8, 2012, Ms. Moon

provided several additional pieces of medical evidence to the AC.13 On April 9, 2012, the AC denied

Ms. Moon’s request for review of the ALJ’s decision.14 Therefore the ALJ’s decision to deny

disability benefits became the final decision of the SSA.15 Ms. Moon filed a complaint in this Court

on July 17, 2012, seeking judicial review of the final decision of the SSA.

6

R. at 105.

7

R. at 108.

8

R. at 112.

9

R. at 115.

10R. at 45.

11R. at 40.

12R. at 15.

13R. at 289, 560.

14R. at 8.

15Id.

Page 2 of 41
II. FACTUAL BACKGROUND

At the time of the hearing before the ALJ, Ms. Moon was twenty-six years old and lived

alone with her eight-year-old daughter.16 Ms. Moon’s most recent employment was a certified

nursing assistant for approximately six months,17 where she helped individuals in their homes with

their daily needs.18 Before her nursing assistant position, Ms. Moon held employment as a cashier,

bank teller, and pharmacy technician.19 Ms. Moon has at least a high school education.20 She spends

much of her time with her daughter and other family, particularly her sister.21

A. Ms. Moon’s Medical Background and Records

Since at least 2005 Ms. Moon has been treated for a wide variety of medical conditions

including: lumbar facet hypertrophy with mild narrowing, lumbago, obesity, mild sleep apnea,

headaches, diabetes, anemia, heart trouble, and hip, knee and feet problems.22 Here we will briefly

review the relevant medical records.

1. Friend Family Health Center, Inc.

Ms. Moon visited the Friend Family Health Center urgent care center in January 2005 and

March 2005.23 During the January 2005 visit, Ms. Moon complained of headaches, body aches, and

fatigue.24 It is not clear if the medical professionals prescribed any treatment during this visit.

During the March 2005 visit, Ms. Moon complained of congestion, sneezing, and wheezing.25

16R. at 49.

17R. at 227.

18R. at 53.

19R. at 227.

20R. at 50.

21R. at 77.

22R. at 31.

23R. at 297, 299.

24R. at 299.

25R.at 297.

Page 3 of 41
The medical professionals noted during this visit that Ms. Moon refused to take Amitriptyline and

Wellbutrin for her headaches that was previously prescribed to her.26 They also noted that Ms. Moon

requested a letter for public aid to say she needs to work less, and Ms. Moon was currently working

at Wendy’s 5.5 hours a day two days a week.27

2. Blue Island Medical Center

Kimberly Baker, M.D. treated Ms. Moon numerous times between April 2005 and March

2008.28 The reasons for most visits were headaches, back pain, and other minor accidents.29 Dr.

Baker prescribed Zomig and Vicodin.30 At the May 6, 2005, visit, Dr. Baker noted Ms. Moon was

working at the time while also complaining of back pain and migraines.31

3. Calumet Park Medical Center

Ms. Moon visited the Calumet Park Medical Center six times between December 3, 2005,

to February 7, 2006, due to headaches, migraines, and back pain.32 An examiner noted that Vicodin

did not help Ms. Moon.33 Zomig and Propranolol were prescribed along with the Imitrex Ms. Moon

was already taking.34

Ms. Moon’s visited in December 2005 because she slipped on ice and hit her knee very

hard.35 The medical center subsequently prescribed ibuprofen and ordered an MRI.36 The MRI

26R. at 297.

27R.at 297.

28R. at 314-31.

29R. at 318-329.

30R. at 323, 327.

31R. at 328.

32R. at 307-10.

33R. at 310.

34R. at 310-11.

35R. at 308.

36Id.

Page 4 of 41
 revealed no evidence of internal knee derangement.37

4. South Suburban Hospital

The South Suburban Hospital performed two sleep studies on Ms. Moon in November 2008

and February 2009.38 Ms. Moon sought the sleep study because of disruptive snoring, excessive

daytime sleepiness, morning headaches, difficulty falling and staying asleep, decreased memory,

decreased concentration, nonrestorative sleep, obesity, and restless legs.39 The studies revealed that

Ms. Moon had mild sleep apnea.40 The sleep center recommended that the Ms. Moon should always

sleep with a continuous positive airway pressure machine and make every effort to lose weight.41

5. William Crevier, M.D., Family Christian Health Center

Dr. Crevier at the Family Christian Health Center served as Ms. Moon’s primary care

physician,42 and Ms. Moon visited him numerous times during the time period of at least February

2009 through March 2010.43 Ms. Moon visited Dr. Crevier for several complaints, the most notable

being migraines,44 tiredness,45 depression,46 and back pain.47 Over the course of several office visits,

Dr. Crevier diagnosed Ms. Moon with sleep apnea, knee pain, lumbago, cholelithiasis, migraines,

morbid obesity, atypical chest pain, myalgia, and depression.48

37R. at 312.

38R. at 431.

39Id.

40Id.

41R. at 431, 432.

42 R. at 541.

43R. at 517, 551.

44R. at 517.

45Id.

46R. at 524.

47R. at 539.

48R. at 533, 545, 548, 552-53.

Page 5 of 41
Dr. Crevier conducted several tests to make these diagnoses. In September 2008 he ordered

MRIs of Ms. Moon’s thoracic spine and lumbosacral spine.49 These tests revealed a cystic structure

in the pelvis.50 Approximately two weeks later Dr. Crevier ordered an MRI of Ms. Moon’s brain, and

it was “unremarkable” and revealed no cause for headaches.51 In February 2009 Dr. Crevier ordered

an electrocardiogram, a thyroid stimulating hormone test, a comprehensive metabolic profile, and

a complete blood count.52 Most notably, these tests revealed normal variations in heart rate, but an

otherwise normal functioning heart,53 and a glucose level slightly above the normal range.54

Throughout the course of treatment, Dr. Crevier prescribed Propranolol, Imitrex, Daypro,

Ultram, Trazamine, and Cymbalta.55 Dr. Crevier prescribed Ms. Moon physical therapy.56 In May

2009 the Family Christian Health Center provided weight management education to Ms. Moon,

which included recipes, dietary changes, alternative food preparation, and exercise programs.57 The

medical center noted Ms. Moon understood these instructions and was very receptive of them.58

6. Palos Community Hospital

In June 2009 Ms. Moon visited the Palos Community Hospital due to lower abdominal pain,

the inability to stand, and back pain.59 The hospital performed several examinations and laboratory

49R. at 336-37.

50R. at 337.

51R. at 335.

52R. at 520-523.

53R. at 523.

54R. at 522.

55R. at 518, 533, 545, 553.

56R. at 481.

57R. at 541.

58Id. 59R. at 442.

Page 6 of 41
tests including a pelvic ultrasound.60 Ms. Moon was instructed to follow up with her physician the

next day.61

Ms. Moon attended one physical therapy appointment at Palos Community Hospital.62 The

therapists first performed an evaluation in March of 2009,63 and one week later Ms. Moon attended

her sole physical therapy visit.64 Ms. Moon either cancelled or did not show up to all other scheduled

appointments.65 The physical therapists noted that Ms. Moon “responded well to therapy and

reported a significant pain reduction at that time.”66 Ms. Moon made no further attempts to contact

the physical therapists, and the therapists were unable to contact Ms. Moon by telephone.67

7. Leon M. Huddleston, M.D.

In August 2009 Ms. Moon visited Dr. Huddleston with complaints of migraine headaches

and low back pain.68 Following the new patient history and physical examination, Dr. Huddleston 

diagnosed Ms. Moon with tension headaches and low back pain.69 Also during this visit Dr.

Huddleston prescribed ibuprofen, recommended Ms. Moon discuss her glucose levels with Dr.

Crevier, and recommended an epidural injection.70 Then in September 2009 Dr. Huddleston

administered an epidural injection to relieve Ms. Moon’s back pain.71

60R. at 447-51.

61R. at 443.

62R. at 476.

63Id.

64Id.

65Id.

66Id.

67Id.

68R. at 484.

69Id. 70R. at 485.

71R. at 486.

Page 7 of 41
8. J.J. Shin, M.D., Grand Prairie Services

Ms. Moon visited Dr. Shin three times for depression between November 2009 and February

2010.72 Dr. Shin diagnosed Ms. Moon with major depression,73 and prescribed Cymbalta and

Trazodone for both Ms. Moon’s depression and insomnia.74 Dr. Shin noted Ms. Moon was Grand

Prairie Service’s patient in 2004 and 2005 but stopped treatment.75 Dr. Shin also noted that Ms.

Moon reported that she was unemployed due to lack of work rather than disability.76 Finally, Dr.

Shin noted “A physician’s form was completed by her lawyers who assisted to get [Social

Security].”77

Dr. Shin completed a Mental Impairment Questionnaire during the February 2010

appointment.78 In this Social Security questionnaire Dr. Shin opined that Ms. Moon had fair ability

and aptitude in several areas.79 He also opined she had poor or no ability to maintain attention for

a two-hour segment, complete a normal workday or work week without interruptions from

psychologically based symptoms, and perform at a consistent pace without rest.80 Lastly, Dr. Shin

opined Ms. Moon had slight restriction of activities of daily living, moderate difficulties in

maintaining social functioning, frequent deficiencies of concentration, persistence, or pace, and

repeated episodes of deterioration or decompensation.81 Ms. Moon did not visit Dr. Shin again after

he completed this questionnaire.

72R. at 500.

73R. at 497.

74R. at 500.

75R. at 493.

76Id. 77R. at 499.

78R. at 503.

79R. at 505.

80Id.

81R. at 506.

Page 8 of 41
Page 9 of 41
9. Consultative Examinations

On November 3, 2008, M.S. Patil, M.D. performed an independent internal medicine

consultative examination on Ms. Moon.82 Dr. Patil diagnosed Ms. Moon with extreme obesity and

polyarthralgia.83 Dr. Patil noted most of Ms. Moon’s health was normal.84 In particular he

commented that Ms. Moon’s heart, mental ability, motor strength, gait, and joints were all normal.85

Although almost all indications were normal, Dr. Patil did find Ms. Moon’s lumbar spine movement

was reduced, and she had some difficulty with squats and arises.86

Young-Ja Kim, M.D. provided a physical residual functional capacity assessment for

purposes of Ms. Moon’s disability application on November 18, 2008.87 Dr. Kim did not examine

Ms. Moon, and based his assessment on the opinions of Dr. Patil and Dr. Crevier.88 He found Ms.

Moon to be able to occasionally lift twenty pounds, frequently lift ten pounds, stand/walk at least

two hours in an eight-hour workday, sit about six hours in an eight-hour workday, and push/pull

with no limitations.89 Dr. Kim noted that Ms. Moon was obese and had mild lumber facet

hypertrophy.90 Dr. Kim noted these conditions caused Ms. Moon to have minimal loss of lumbar

range of motion.91 Dr. Kim commented that a review of all other systems was negative and normal.92

Dr. Kim opined that Ms. Moon should never climb, only occasionally stoop and crouch, and avoid

82R. at 355.

83R. at 357.

84R. at 356-57.

85Id. 86R. at 357.

87R. at 361-68..

88R. at 368.

89R. at 362.

90Id. 91Id. 92Id.

Page 10 of 41
concentrated exposure to hazards.93 Dr. Kim recommended limiting Ms. Moon’s exertion and weight

bearing activities due to the obesity and lumbar limitation.94 Dr. Kim found Ms. Moon to be only

partially credible since Ms. Moon indicated difficulty using her hands, but the medical evidence did

not show any difficulty performing fine and gross manipulations.95

On January 15, 2009, Reynaldo Gotanco, M.D. conducted the Illinois Request for Medical

Advice.96 Dr. Gotanco did not examine Ms. Moon. He affirmed the initial determination that Ms.

Moon could perform sedentary work.97 Dr. Gotanco supported this decision by stating there were

no allegations of the conditions worsening, no allegations of new impairments, and no new

treatments.98 He also noted the prior determination was substantively and technically correct.99

Anthony E. Francis, M.D. completed a medical interrogatory of Ms. Moon on December 23,

2009.100 Dr. Francis did not examine Ms. Moon. He noted Ms. Moon’s main impairment was obesity,

and that she could do some level of sedentary or greater work.101 Dr. Francis concluded that Dr.

Kim’s opinion appeared appropriate, and he had no reason to change anything in it.102

93R. at 363, 365.

94R. at 362.

95R. at 368.

96R. at 369-71.

97R. at 371.

98R. at 370.

99Id. 100R. at 423. 101R. at 429. 102Id.

Page 11 of 41
B. The ALJ Hearing and Decision

1. Summary of Testimony at the ALJ Hearing

Ms. Moon’s hearing before the ALJ took place on May 4, 2010.103 Ms. Moon and a

vocational expert (“VE”) testified.104 In addition to the ALJ, Ms. Moon’s attorney questioned Ms.

Moon and the VE.105

a. Ms. Moon’s Testimony

Ms. Moon began her testimony by discussing her living situation and background. She said

that she is single and lives alone with her 8-year-old daughter.106 Ms. Moon said she was formerly

a certified nursing assistant, where she assisted her clients in their homes with daily activities such

as bathing and transportation.107 Ms. Moon said she was fired in August 2008, but she also needed

to stop this job because of her pain.108 Ms. Moon stated after she was fired, she collected

unemployment benefits and submitted job applications as late as January 2010.109 She said she would

have taken one of these jobs if accepted to make ends meet, but would have been in significant

pain.110 Then Ms. Moon explained why she was currently unable to work. She stated, “I’m in a lot

of pain . . . . My back, my feet hurt every day, and I have migraines. And I can’t even do my own

dishes because my back hurts so bad. I can’t even lean over to wash my hands. I’m in just pain all

over. I have these migraines that last for days.”111

The ALJ then questioned Ms. Moon considerably about her migraine headaches. Ms. Moon

103R. at 45. 104Id. 105R. at 66-79, 87-89. 106R. at 49. 107R. at 53. 108R. at 51. 109R. at 51-52. 110R. at 52. 111R. at 54.

Page 12 of 41
said she has had migraines for “many years, I can’t even count.”112 She described the headaches as

getting worse the past two or three years, and they currently last up to three days.113 Ms. Moon stated

she takes her full monthly supply of Imitrex and then takes prescribed Motrin for these headaches.114

She said these medications help, but do not take the headaches away.115 Ms. Moon testified she took

prophylactic medication for the headaches in 2005, but no longer takes these medications.116 The

ALJ expressed deep curiosity as to why her current doctors do not prescribe prophylactic

medications for the alleged severe headaches or have not tried any new treatments when Ms. Moon

complains her medications are not effective.117 The ALJ also pointed out that Ms. Moon’s medical

records indicated that Ms. Moon was working while suffering from these headaches, the Imitrex was

effective, and there were fewer complaints of headaches after the alleged onset date than before

when Ms. Moon was working.118

Ms. Moon also described her back, foot, and leg pain. Ms. Moon stated she has swelling and

pain in her back.119 Ms. Moon said that she has visited her chiropractor 2-3 times a week for the past

few months for bone realignments, cooling packs, and other treatments.120 Ms. Moon testified she

has “very aching, tired feet,” there is “stabbing pain up under the bottom” of her feet, and her feet

“get numb and tingly” sometimes.121 She stated she has visited her podiatrist every six weeks for the

past year to get her callous trimmed.122 Then Ms. Moon testified that she has had “shooting pain that

112Id. 113Id. 114R. at 55. 115Id. 116R. at 56. 117R. at 57. 118R. at 57-58. 119R. at 61. 120R. at 60-61. 121R. at 61. 122R. at 62.

Page 13 of 41
goes down both of [her] legs,” since she had her daughter eight years ago.123 She said the leg pain

has become much worse recently, and she sometimes cannot walk because of it.124

Along with the Imitrex and Motrin mentioned above, Ms. Moon testified about her other

current medications. She stated that she takes trazodone for her depression and sleep problems and 

takes Cymbalta for her fibromyalgia.125 When the ALJ asked Ms. Moon why there were periods

when she did not take her medications, Ms. Moon explained that she “wanted to know what was

really going on instead of [the doctors] giving [her] medication and just sending [her] home.”126 In

addition she stated that her medications give her side effects such as fatigue, weakness, dry mouth,

drowsiness, and chest pains.127

Ms. Moon testified about her current capabilities. She said she has not been able to lift more

than 8-10 pounds for the past two years due to her back and chest pain.128 She said when she lifted

more than this amount at work, she would be in excruciating pain and would need to take time off

work.129 Ms. Moon said she can sit for approximately twenty minutes before she starts to feel back

pain and numbness in her legs.130 She then stated she can only stand for at most fifteen minutes due

to back, foot, and knee pain.131 Ms. Moon described how she must sit down to wash the dishes and

it’s very painful tp launder clothes and perform other chores because of her pain.132 Ms. Moon said

her daughter and sister must help her with some household chores such as taking out the trash and

123Id. 124Id. 125R. at 59. 126R. at 58. 127Id. 128R. at 63. 129Id. 130Id. 131R. at 64. 132R. at 65.

Page 14 of 41
sweeping the floor.133 Ms. Moon testified that she can sometimes go grocery shopping by herself,

but sometimes her sister needs to accompany her.134

Ms. Moon testified that on a typical day she gets her daughter ready for school and then must

lie down and watch television due to pain.135 She said she goes to her family’s home on the

weekends, goes shopping, and the only other time she leaves the house is for appointments.136

Then Ms. Moon’s lawyer questioned Ms. Moon, and Ms. Moon further discussed her limitations.

Ms. Moon said that her leg pain and extreme obesity prevent her from doing some daily activities.137

She indicated that she must use a cane because her legs will “give out” on her.138 She stated her

headaches are so painful that she cannot help her daughter with her homework and must lie down

and have complete silence for an unspecified time 2-3 days a week.139 Ms. Moon also said her sister

must sometimes assist her to bathe.140 Ms. Moon testified that her depression prevents her from

recalling simple items and therefore causes much frustration.141

Then Ms. Moon explained that her chiropractic treatments provide temporary relief for 2-3

days.142 She also explained the physical therapy caused her so much pain she could not get out of bed

the next day.143 She said she sometimes misses her appointments because of her pain and

depression.144

133R. at 63-64. 134R. at 65. 135R. at 64. 136R. at 65. 137R. at 66. 138R. at 67. 139R. at 72-73. 140R. at 74-75. 141R. at 75-76. 142R. at 68. 143R. at 70. 144R. at 71.

Page 15 of 41
Ms. Moon then described her sleep study where she was diagnosed with sleep apnea.145 Ms.

Moon stated the Trazodone helped with her sleep problems.146

Lastly, the ALJ reexamined Ms. Moon. The ALJ asked Ms. Moon why she waited so long

to seek treatment for her depression.147 Ms. Moon replied that she thought it was “just something that

[she] probably would overcome,” and that she was in denial.148 The ALJ then questioned Ms. Moon

extensively about the lack of physical therapy. He stated the medical record showed that Ms. Moon

attended one physical therapy session and then either cancelled or did not show up to her remaining

appointments.149 The ALJ also stated that the physical therapy notes contradicted Ms. Moon’s

testimony since the notes said that Ms. Moon had positive effects from the physical therapy.150 When

Ms. Moon responded that the pain came back after the physical therapy, the ALJ then asked how

Ms. Moon was able to attend her chiropractic appointments, but not physical therapy sessions since

the pain comes back after the chiropractic appointments as well.151 He also asked Ms. Moon why she

did not continue to attend physical therapy when it relieved her pain.152 Ms. Moon reiterated that she

was in considerable pain after the only physical therapy appointment she attended and that she got

discouraged.153

145R. at 78. 146Id. 147R. at 79. 148R. at 79-80. 149R. at 80-81. 150Id. 151R. at 81. 152Id. 153R. at 82.

Page 16 of 41
b. The Vocational Expert’s Testimony

The VE reviewed Ms. Moon’s work for the fifteen years prior to the hearing.154 The VE

stated Ms. Moon was formerly a certified nursing assistant, bank teller, pharmacy technician, and

cashier.155 These jobs range from light to medium exertion levels and unskilled to the lower end of

skilled skill levels.156

The VE stated that a hypothetical person: of Ms. Moon’s age, education, and work

experience; who was able to lift up to twenty pounds occasionally; stand and walk for approximately

two hours of an eight hour work day; sit for approximately six hours in an eight hour work day with

normal breaks; who was able to occasionally stoop and crouch; and who should never climb ladders,

ropes, scaffolds, ramps or stairs would not be able perform Ms. Moon’s past work.157 This is because

Ms. Moon can only peform sedentary work due to the two hour standing limitation.158

The VE stated Ms. Moon would be capable of performing the duties of order clerk, sedentary

cashier, and bench assembler.159 The VE said there are approximately 2,900, 5,000, and 3,000 of

these positions, respectively, in the Chicago metropolitan area.160 On examination by Ms. Moon’s

attorney, the VE stated a cane would not interfere with these jobs, missing work once every two

weeks would lead to termination, and Ms. Moon would need to be able to stay mentally on task 85%

to 90% of the time.161

154R. at 84. 155Id. 156Id. 157R. at 85. 158Id. 159Id. 160Id. 161R. at 87-88.

Page 17 of 41
2. The ALJ’s Decision

In an opinion issued December 1, 2010, the ALJ concluded that Ms. Moon had not been

disabled from her alleged onset date of August 27, 2008, to the date of the decision within the

meaning of the Act, both in terms of SSI and SSID.162 The ALJ reached this decision because,

although Ms. Moon had several severe impairments, she had the ability to perform sedentary work

with certain restrictions,163 and there were jobs that exist in significant numbers in the national

economy that Ms. Moon can perform.164

SSA regulations prescribe a five-step sequential evaluation process for determining whether

an individual is disabled.165 The ALJ follows the steps in order, and if the ALJ determines that the

claimant is or is not disabled at any step, the evaluation does not go on to the next step.166

The ALJ’s first step is to determine whether the claimant is presently engaged in substantive

gainful activity, which would preclude a finding of disability.167 In the present case, the ALJ

determined that Ms. Moon had not engaged in substantial gainful activity since August 27, 2008,

the alleged onset date.168

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

combination of impairments.169 In this case, the ALJ found that Ms. Moon has the following severe

impairments: lumbar facet hypertrophy with mild narrowing, lumbago, obesity, mild sleep apnea,

and a history of headaches.170

162R. at 40. 163R. at 33. 164R. at 38. 16520 C.F.R. §§ 404.1520(a), 416.920(a). 16620 C.F.R. § 416.920(a)(4). 16720 C.F.R. §§ 404.1520(b), 416.920(b). 168R. at 31. 16920 C.F.R. §§ 404.1520(c), 416.920(c). 170R. at 31.

Page 18 of 41
The ALJ’s third step is to consider whether the claimant’s impairment or combination of

impairments meets or medically equals any impairment listed in the regulations as being so severe

as to preclude gainful activity.171 In the present case, the ALJ determined that Ms. Moon’s

impairments did not meet or medically equal a listed impairment in 20 C.F.R. Part 404, Subpart P,

Appendix 1.172 The ALJ concluded Ms. Moon’s “musculoskeletal and neurological problems were

not close to any listing-level criteria.”173

When no impairments are found to meet SSA listing requirements in the third step, the ALJ

proceeds to the fourth step of the test, which is to determine whether the claimant is able to perform

her past relevant work.174 This involves evaluating the claimant’s Residual Functional Capacity

(“RFC”) based on the record and her testimony and comparing it to the requirements of her past

work.175 A claimant’s RFC is the most a claimant can do despite the impairment(s).176 If determining

the RFC requires the ALJ to assess subjective complaints, then she follows a two-step process.177

First, she determines whether there is an underlying medically determinable impairment,

determinable by medically acceptable clinical and laboratory diagnostic techniques that could

reasonably be expected to produce the claimant’s symptoms.178 If so, the ALJ then evaluates the

intensity, persistence, and limiting effects of a claimant’s symptoms on her ability to do basic work

17120 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926. 172R. at 33. 173Id. 17420 C.F.R. §§ 404.1520(f), 416.920(f). 17520 C.F.R. §§ 404.1520(e), 416.920(e). 17620 C.F.R. § 404.1545. 17720 C.F.R. § 404.1529. 17820 C.F.R. § 404.1529(b).

Page 19 of 41
activities.179 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.180

In the present case the ALJ found that Ms. Moon had the RFC “to perform sedentary work”

as defined in 20 C.F.R. §§ 404.1567(a), 416.967(a), except that Ms. Moon can lift 20 pounds

occasionally and 10 pounds frequently, stand for 2-hours and sit for 6-hours in an 8-hour workday

with a sit/stand option, can only occasionally stoop and crouch, should never climb (ramp, stairs,

ladder, rope, or scaffolds), and should avoid exposure to hazards such as unprotected heights and

dangerous machinery.181

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

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

also found Ms. Moon’s statements concerning the intensity, persistence, and limiting effects of these

symptoms are not credible to the extent they were inconsistent with the RFC assessment.182

In discrediting Ms. Moon’s symptoms, the ALJ first noted several examples of when Ms.

Moon’s statements concerning pain were contradictory to her testimony and actions. The ALJ noted

that Ms. Moon was still able to take “daily care of herself and her [seven-year-old] daughter.”183 The

ALJ recognized that Ms. Moon submitted job applications as late as January 2010, well after the

alleged disability onset date.184 Along with that, the ALJ pointed out Ms. Moon certified that she is

“ready, willing, and able to work,” when she filed for unemployment benefits after losing her

17920 C.F.R. § 404.1529(c). 18020 C.F.R. § 404.1520(a)(4)(iv). 181R. at 33. 182R. at 34. 183Id. 184Id.

Page 20 of 41
nursing position.185 The ALJ also mentioned while Ms. Moon claimed difficulty using her hands,

medical evidence “does not show any difficulty with performing fine and gross manipulations,” and

while Ms. Moon stated she used a cane, she did not bring one to the consultative examination.186 The

ALJ also noted other inconsistencies; Ms. Moon reported greater physical ability during the

consultative examination than the hearing, and Ms. Moon denied back pain, headaches, and

depression to Dr. Crevier after the alleged disability onset date.187

Next, the ALJ focused on Ms. Moon’s “limited treatment history,” and stated that it lent

“very little support to the claimant’s allegations of disability.”188 The ALJ noted that Ms. Moon has

had only conservative treatment primarily consisting of pain medication for the allegedly disabling

pain.189 The ALJ highlighted that Ms. Moon sought treatment for her alleged mental impairment for

only three months and attended only a few physical therapy sessions.190 The ALJ described how Ms.

Moon only received chiropractic treatment for her hip pain, and a podiatrist trimmed a callus on her

foot every six weeks.191 In regards to the knee pain, the ALJ noted that an MRI revealed no knee

derangement.192 The ALJ stated that while Ms. Moon is diabetic, her recent glucose reading was

“only slightly above the high end of the normal range . . . .”193 The ALJ described an episode when

Ms. Moon complained of chest pain, but the admitting hospital found no cardiac problems and

deemed the situation to not warrant a stress test.194 Furthermore, the ALJ noted that both an

185Id. 186Id. 187Id. 188R. at 35. 189Id. 190Id. 191Id. 192Id. 193Id. 194Id.

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independent consultative exam and a later electrocardiography test indicated Ms. Moon’s heart was

fine.195 For Ms. Moon’s back pain, the ALJ found an epidural injection and prescriptions for Ultram

and Daypro to be conservative treatment.196

Then the ALJ discredited Ms. Moon’s allegations of pain because she did not adequately

comply with the prescribed treatment for her impairments. The ALJ stated that after Ms. Moon

visited Weight Management Education services and learned strategies to combat her obesity, she

did not make a “strong effort to follow the instructions to make a significant improvement in her

weight loss.”197 Additionally, the ALJ explained that Ms. Moon did not take medication for

headaches and back pain due to fear of side effects, but there was no medical evidence of side

effects.198 The ALJ stated Ms. Moon attended only a single physical therapy session after responding

well to the treatment.199 Along with that, the ALJ observed that Ms. Moon said she was in too much

pain to get out of bed to go to physical therapy, but yet she was still able to attend her chiropractic

appointments.200

The ALJ then discredited the severity of Ms. Moon’s headaches and considered her sleep

apnea. The ALJ noted that Ms. Moon experienced headaches as far back as 2005 when Ms. Moon

was working.201 The ALJ observed that an MRI of Ms. Moon’s brain was “unremarkable” and

revealed no cause for headaches.202 The ALJ stated Ms. Moon refused to take medication for fear of

side effects, but there was no indication of side effects from the migraine medications.203 Then the

195Id. 196Id. 197Id. 198R. at 36 199R. at 35. 200R. at 36 201Id. 202Id. 203Id.

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ALJ noted Ms. Moon had been able to relieve the headaches with Immetrix and Motrin.204 Regarding

her mild sleep apnea, the ALJ found it was “treated well” with a continuous positive airway pressure

machine and Trazadone.205

Moving to the opinion evidence, the ALJ gave significant weight to the opinions of Dr. Kim

and Dr. Francis, who completed physical assessments and medical interrogatories of Ms. Moon.206

The ALJ stated these opinions were in full agreement with each other and consistent with the

medical evidence of record.207 Furthermore, the ALJ noted that Dr. Patil’s independent consultative

examination “provides significant support for the opinions of the State agency medical reviewers,

[sic] and of Dr. Francis.”208

The ALJ gave limited weight to the opinion of Dr. Gotanco, who completed the Illinois

Request for Medical Advice, because the opinion was just a summary and did not confirm or rebut

prior medical opinions.209 Along with that, the ALJ completely discredited Dr. Shin’s psychiatric

evaluation.210 The ALJ noted Dr. Shin diagnosed Ms. Moon with a major depressive disorder, but

provided little basis for the claim.211 The ALJ noted Ms. Moon took no psychotropic medications.212

The ALJ found noteworthy that Dr. Shin recorded that Ms. Moon’s lawyer filled out one of the

physician’s forms, and Ms. Moon ceased seeking mental health treatment after Dr. Shin completed

204Id. 205Id. 206R. at 37. 207Id. 208Id. 209Id. 210Id. 211Id. 212Id.

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the functional capacity assessment.213 The ALJ also found Dr. Shin’s opinion unsupported by limited

treatment notes and a lack of treatment.214

Given the RFC, the VE found Ms. Moon would be unable to perform her past relevant work

as Ms. Moon performed the job or as it should be performed.215 When the ALJ finds the claimant

cannot perform her past work, the ALJ moves to the fifth and final step of the test. The burden shifts

to the SSA to prove, considering the claimant’s RFC, age, education, and past work experience, that

she is capable of performing other work in the local or national economy.216 In the present case, the

ALJ determined Ms. Moon was twenty-four years old on the alleged onset date, had at least a high

school education, was able to communicate in English, and had the RFC described above.217

Considering these characteristics, the VE testified that a hypothetical person similar to Ms. Moon

could perform the requirements of occupations such as order clerk, cashier II, and bench

assembler.218 Therefore, based on the VE’s testimony, the ALJ determined that jobs existed in

significant numbers in the national economy that Ms. Moon could perform.219

This concluded the disability assessment through all five steps. The ALJ determined Ms.

Moon was not under a disability, as defined in the Act, from August 27, 2008, through the date of

the ALJ’s decision because she could perform jobs in the national economy.220

213Id. 214Id. 215R. at 38. 21620 C.F.R. §§ 404.1520(g), 416.920(g). 217R. at 38. 218R. at 39. 219Id. 220Id.

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C. Medical Evidence Submitted to the Appeals Council After the ALJ Decision

Ms. Moon submitted additional evidence to the AC after the ALJ’s decision.221 Ms. Moon

submitted a “Medical Evaluation - Physician’s Report” completed by Dr. Crevier who treated Ms.

Moon extensively.222 Dr. Crevier completed this form based on a September 26, 2011, medical

examination.223 He diagnosed Ms. Moon with morbid obesity, sleep apnea, sciatica, depression, and

fibromyalgia.224 Dr. Crevier opined Ms. Moon had more than 50% reduced capacity to walk, bend,

stand, stoop, turn, climb, push, and pull.225 He also opined Ms. Moon had a 20-50% reduced capacity

to sit and perform activities of daily living.226 Dr. Crevier indicated Ms. Moon had the capacity to

lift no more than ten pounds at a time during an eight-hour day, five days a week.227

Ms. Moon submitted the same form completed by Dr. Huddleston based on a July 25, 2011,

examination.228 Dr. Huddleston stated Ms. Moon had decreased lumbar spine range of motion.229 Dr.

Huddleston opined Ms. Moon had more than 50% reduced capacity to bend, stoop, and climb; 20-

50% reduced capacity to walk and perform activities of daily living; up to 20% reduced capacity to

stand, sit, turn, push, pull, and travel; and full capacity for fine manipulation, gross manipulation,

and finger dexterity.230 Dr. Huddleston indicated Ms. Moon had the capacity to lift no more than ten

pounds at a time during an eight-hour day, five days a week.231

221R. at 289. 222R. at 561. 223Id. 224Id. 225R. at 564. 226Id. 227Id. 228R. at 565. 229R. at 566. 230R. at 567. 231Id.

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Ms. Moon also submitted imaging reports from Ingalls Memorial Hospital. Ingalls Memorial

Hospital conducted a transthoracic echocardiogram report on August 18, 2011.232 This report noted

no significant defects with Ms. Moon’s heart.233 The hospital conducted an MRI on Ms. Moon’s

lumbar spine on July 27, 2011.234 This examination revealed a “moderate degree of degenerative

facet changes,” most notably in the L4-L5 and L5-S1 areas of the spine.235 Lastly, Ingalls Memorial

conducted an x-ray of Ms. Moon’s hip on February 8, 2012.236 The x-ray revealed no fracture or

dislocation.237 The x-ray did reveal mild to moderate “degenerative changes manifested by joint

space narrowing, subchondral sclerosis, and osteophytas.”238

Lastly, Dr. Huddleston sent a letter to the SSA on December 5, 2011, to state he fully

supported Ms. Moon’s application for disability benefits.239 Dr. Huddleston summarized Ms. Moon’s

conditions, pain, and limitations.240 He stated three epidural steroid injections provided minimal

relief.241 Dr. Huddleston also stated Ms. Moon is working to reduce her weight and alleviate her back

pain.242

III. STANDARD OF REVIEW

This Court must sustain the SSA’s findings of fact if they are supported by substantial

evidence and are free of legal error.243 Substantial evidence is “such relevant evidence as a

232R. at 557-58. 233Id. 234R. at 559. 235Id. 236R. at 560. 237Id. 238Id. 239R. at 556. 240Id. 241Id. 242Id. 243 42 U.S.C. § 405(g); Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002).

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reasonable mind might accept as adequate to support a conclusion.”244 To be supported by substantial

evidence, the findings must be such that a reasonable mind might accept them as adequate to support

the conclusion.245 The standard of review is deferential, but the reviewing court must conduct a

critical review, considering both evidence that supports and evidence that detracts from the SSA’s

decision.246 Where conflicting evidence allows reasonable minds to differ, the responsibility for

determining whether a plaintiff is disabled falls upon the SSA, not the reviewing court.247 Although

the ALJ need not address every piece of evidence or testimony presented, she must adequately

discuss the issues and build an accurate and logical bridge from the evidence to the conclusion.248

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

it lacks evidentiary support or an adequate discussion of the issues.249

IV. ANALYSIS

Ms. Moon argues that the ALJ’s decision should be reversed or remanded because: (1) the

AC failed to consider new and material evidence; (2) the ALJ failed to account for all of Ms. Moon’s

impairments which flawed the RFC assessment; and (3) the ALJ improperly discredited Dr. Shin’s

opinion. We briefly review all of Ms. Moon’s arguments and find no errors warranting remand or

reversal.

244Scheck v. Barnhart, 357 F.3d 697, 699 (7th Cir. 2001); Kepple v. Massanari, 268 F.3d 513, 516 (7th Cir.

2001). 245Zurawski v. Halter, 245 F.3d 881 (7th Cir. 2001); Richardson v. Perales, 402 U.S. 389, 401. 246Eichstadt v. Astrue, 534 F.3d 663, 665 (7th Cir. 2008). 247Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir. 1990); quoting Walker v. Bowen, 834 F.2d 635, 640 (7th

Cir.1987).248 Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010); Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008). 249 Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000).

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A. Appeals Council Review

Ms. Moon argues the AC erred under 20 C.F.R. 404.970(b) when it determined the additional

records provided after the ALJ decision were not “new and material,” and subsequently denied Ms.

Moon’s request for review. The Seventh Circuit has held that if a claimant provides additional

medical evidence to the AC that was not provided to the ALJ, and the AC subsequently denies

application for review, then the AC has deemed the additional evidence to not be new and

material.250 So despite the AC’s silence as to whether it found the additional evidence to be “new

and material,” we can infer that it did not, given this rule. The Commissioner argues that the

additional evidence was not material, and Ms. Moon fails the good cause requirement for failure to

provide this evidence to the ALJ.

Title 20 C.F.R. 404.970(b) provides:

If new and material evidence is submitted, the Appeals Council shall

consider the additional evidence only where it relates to the period on

or before the date of the administrative law judge hearing decision.

The Appeals Council shall evaluate the entire record including the

new and material evidence submitted if it relates to the period on or

before the date of the administrative law judge hearing decision. It

will then review the case if it finds that the administrative law judge’s

action, findings, or conclusion is contrary to the weight of the

evidence currently of record.

Also, the Hearings, Appeals and Litigation Law Manual (“HALLEX”) § I-3-3-6 states: 

For the AC to consider additional evidence, the regulations require

that the evidence is new, material, and related to the period on or

before the date of the ALJ decision. This means the evidence is:

1. Not part of the claim(s) record as of the date of the ALJ decision;

2. Relevant, i.e., involves or is directly related to issues adjudicated

by the ALJ; and

3. Relates to the period on or before the date of the ALJ decision,

250Farrel v. Astrue, 692 F.3d 767, 771 (7th Cir. 2012).

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meaning it is: (1) dated before or on the date of the ALJ decision, or

(2) post-dates the ALJ decision but is reasonably related to the time

period adjudicated by the ALJ.

In the current case, Ms. Moon submitted medical evaluations to the AC completed by Dr.

Crevier and Dr. Huddleston as part of the additional evidence. The doctors based their evaluations

on examinations that postdated the ALJ’s decision by ten and eight months respectively.251 The two

doctors provided these medical evaluations by completing the Illinois Department of Human

Services physician form, an SSA form for disability applicants.252 When the form asked to indicate

Ms. Moon’s lifting capacity, both doctors selected the “[n]o more than ten pounds at a time” option,

which was the lowest option available.253 Furthermore, to describe Ms. Moon’s standing and sitting

ability, Dr. Crevier selected “[m]ore than 50% reduced capacity,” the most severe option;254 Dr.

Huddleston selected the “[u]p to 20% reduced capacity.”255 The form did not request any written

support for the physical limitation conclusion, and none was provided.

These medical evaluations satisfied the“new” requirement because they postdated the ALJ

decision and, therefore, were not part of the claim record as of the date of the ALJ decision. Along

with being new, the medical evaluations were material because they directly related to an issue

adjudicated by the ALJ, namely Ms. Moon’s RFC. In particular, they were related to the portion of

the RFC that stated, “[Ms. Moon] can lift [twenty] pounds occasionally and [ten] pounds frequently,

stand for [two]-hours and sit for [six]-hours in an [eight]-hour workday . . . .”256 Both the physicians

opined on Ms. Moon’s lifting, standing, and sitting ability in their evaluations. They stated a more

251R. at 564, 567. 252R. at 561, 565. 253R. at 564, 567. 254R. at 564. 255R. at 567. 256R. at 33.

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severe lifting limitation than the one given in the RFC. Also, although not given in terms of time

limitations as described in the RFC, the physicians did assess Ms. Moon’s standing and sitting

abilities on a percentage of reduced capacity basis. These opinions could have persuaded the ALJ

to increase the severity of the stand and sit limitations. Because the physicians’ evaluations were

directly related and relevant to Ms. Moon’s RFC, they were material.

Although the physicians’ evaluations were new and material, they did not relate to the

adjudicated time period, the time period between Ms. Moon’s alleged onset date and the ALJ’s

decision. Postdated evidence can relate to a claimant’s limitations during the adjudicated time

period, but the evidence must indicate that it does so.257 Also, postdated evidence that contradicts

other evidence in the record does not relate to the adjudicated time period.258 Lastly, postdated

evidence that describes after-acquired conditions or post-decision deterioration of a pre-existing

condition does not relate to the adjudicated time period.259

In Ms. Moon’s case, there was no indication the postdated evaluations from Dr. Crevier and

Dr. Huddleston related to the adjudicated time period and, along with that, there was no indication

that Ms. Moon’s abilities had not deteriorated from the time of the ALJ decision to the time of the

examinations. Thus, Ms. Moon provided no support that the evaluations described her limitations

257HALLEX I-3-3-6 (“a statement may relate to the period at issue when it postdates the decision but makes

a direct reference to the time period adjudicated by the ALJ.”); see also Farrel, 692 F.3d 770-71 (holding that a

postdated diagnosis of fibromyalgia was related to the adjudicated time period because it filled an “evidentiary gap”

when the ALJ determined the condition was not severe due to a lack of diagnosis. Furthermore, the diagnosis built

on allusions to fibromyalgia in other doctor’s reports during the adjudicated time period); Grate v. Apfel, No. 99-

2391, 1999 WL 1179079, at *3 (7th Cir. 1999)(medical records submitted to the AC after the ALJ decision related to

the adjudicated time period because the records were actually made during the adjudicated time period.). 258See Box v. Shalala, 52 F.3d 168, 172 (8th Cir. 1995) (holding that newly submitted evidence of mental

conditions and hypertension was not persuasively related to the claimant’s conditions during the adjudicated time

period because it was inconsistent with other medical reports in the record). 259 See Getch v. Astrue, 539 F.3d 473, 484 (7th Cir. 2008) (holding postdated evidence of the claimant’s

worsening gout condition did not relate to the adjudicated time period because, even though the claimant had been

diagnosed with gout during the adjudicated time period, the evidence only spoke to the severity of the condition after

the ALJ decision); see also Bergmann v. Apfel, 207 F.3d 1065, 1070 (8th Cir. 2000).

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during the adjudicated time period as opposed to the later date of the medical evaluations. Next, not

only were the physicians’ opinions based on postdated examinations, but they also contradicted

other physicians’ opinions stemming from the adjudicated time period. For example, during the

consultative examination in November 2008, Dr. Patil opined that Ms. Moon had mild difficulty

“lifting more than 10-15 pounds, standing for more than thirty minutes or prolonged sitting.”260 Also

in November 2008, Dr. Kim opined, although he did not examine Ms. Moon, that she could

occasionally lift twenty pounds and frequently lift ten pounds.261 For the foregoing reasons, we

cannot say the AC erred in concluding that the new evaluations referred to Ms. Moon’s limitations

after the ALJ issued his decision.

The lumbar MRI and the hip x-ray that were additionally submitted are not material because

they do not show a reasonable probability that the ALJ would have reached a different conclusion

had this additional evidence been before him.262 This is because the ALJ did not discount Ms.

Moon’s allegations of disabling hip and back pain because of a lack of objective evidence. The ALJ

rejected those allegations because he determined that the treatment Ms. Moon obtained for her hip

and back pain was conservative.263 The regulations allow an ALJ to consider a claimant’s treatment

history in comparison to their claimed limitations,264 and this Court is “required to give deference

to the ALJ’s factual determination stemming from that history.”265 The ALJ noted that Ms. Moon

received conservative treatment for her back pain and, despite limited compliance, responded well

260R. at 355. 261R. at 362. 262See Schmidt v. Barnhart, 395 F.3d 737, 742 (7th Cir. 2005). 263 R. at 35-36. 264 20 C.F.R. § 404.1529(c)(3)(v). 265Jones v. Astrue, No. 11 CV 3958, 2012 WL 4120417 at *8 (N.D. Ill. Sept. 18, 2012).

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to her treatment.266 The ALJ also noted the sporadic treatment history in regards to Ms. Moon’s hip

problems and found that it did not provide strong support for her allegations of disabling pain.267

Because the ALJ had already taken into account Ms. Moon’s hip and back pain and discounted it,

the MRI and x-ray would not likely have changed the determination.

B. The Scope of the ALJ’s RFC Assessment

Ms. Moon argues the ALJ erred when determining the RFC because the ALJ failed to

consider limitations due to Ms. Moon’s (1) migraine headaches, (2) depression, and (3) incapability

to perform sustained work activity. Ms. Moon argues these omissions caused a flawed RFC.

The RFC describes the most an individual can still do despite his or her limitations268 on a

regular basis, meaning roughly eight hours a day for five days a week.269 To determine the RFC, the

ALJ first considers all the objective medical evidence to decide if there is an “underlying medically

determinable physical or mental impairment(s) . . . that could reasonably be expected to produce the

individual’s pain or other symptoms.”270 Then secondly, if the ALJ finds sufficient underlying

impairments, the ALJ evaluates the “intensity, persistence, and limiting effects of the individual’s

symptoms to determine the extent to which the symptoms limit the individual’s ability to do basic

work activities.”271 During this second step, when the objective medical evidence alone is not able

to substantiate the claimant’s alleged severity of the impairments, the ALJ must make a finding on

the credibility of the claimant’s statements about symptoms and their functional effects.272 In addition

266R. at 36. 267R. at 35. 268See 20 C.F.R. § 404.1545(a). 269Pepper v. Colvin, 712 F.3d 351, 362 (7th Cir. 2013). 270SSR 96-7p. 271Id. 272Id.

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to the objective medical evidence, 20 C.F.R § 404.1529 states the ALJ considers the following to

assess credibility of alleged pain: (1) the claimant’s daily activities; (2) the location, duration,

frequency, and intensity of the claimant’s pain or other symptoms; (3) factors that precipitate and

aggravate the symptoms; (4) the type, dosage, effectiveness, and side effects of any medication the

individual takes or has taken to alleviate pain or other symptoms; (5) treatment, other than

medication, the individual receives or has received for relief of pain or other symptoms; (6) any

measures other than treatment the individual uses or has used to relieve pain or other symptoms; and

(7) any other factors concerning the individual’s functional limitations and restrictions due to pain

or other symptoms.273

In Ms. Moon’s case, the ALJ first found impairments that could reasonably produce Ms.

Moon’s alleged pain and other symptoms.274 However, during the second step, the ALJ found that

Ms. Moon’s “statements concerning the intensity, persistence, and limiting effects of these

symptoms are not credible to the extent they are inconsistent with the . . . residual functional

capacity assessment.”275 Ms. Moon contests this lack of credibility finding. Therefore, the RFC

discussion below focuses on the objective medical evidence and the seven factors from the

regulations to determine if the ALJ had substantial evidence to make this finding.

1. Migraine Headaches

Ms. Moon argues that because the ALJ found the migraine headaches to be a severe

impairment during the second step of the SSA prescribed five-step process for disability claims, and

because severe impairments, by definition, significantly limit abilities to do basic work activities,

27320 C.F.R. § 404.1529(c)(3). 274R. at 34. 275Id.

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the ALJ must identify limitations due to the migraine headaches when determining the RFC. The

guidelines for evaluating a disability do indeed state that a severe impairment “significantly limits

[a person’s] physical or mental ability to do basic work activities,”276 but contrary to Ms. Moon’s

argument, simply having a severe impairment is not determinative of whether limitations exist.277

Even when the ALJ deems an impairment to be severe, the ALJ still must determine if any

limitations exist due to this severe impairment.278 Thus, the Act does not necessarily require

limitations in the RFC for all severe impairments, as Ms. Moon contends.

Moving to the medical evidence and regulatory factors, the ALJ had substantial evidence to

find Ms. Moon lacked credibility in regards to her migraine headaches. In terms of objective

medical evidence, the ALJ considered that Ms. Moon had an MRI on her brain, which revealed no

causes for headaches.279 Along with the objective medical evidence, the ALJ addressed some of the

Act’s factors for credibility. The ALJ considered the type, dosage, effectiveness, and side effects of

the Imitrex and Motrin when he found these medications helped relieve Ms. Moon of her

headaches,280 and there was no medical evidence of any side effects. Additionally, the ALJ noted that

Ms. Moon complained of headaches in 2005 but was still able to work, and she requested a letter

from public aid stating she needed to work less.281 Given this support, the ALJ did not fail to consider

the medical and other evidence in determining the limitations of Ms. Moon’s headaches.

Also, the ALJ had further reason to discredit Ms. Moon’s alleged limitations due to migraine

headaches. SSR 96-7p states a claimant’s “statements may be less credible . . . if the medical reports

27620 C.F.R. § 404.1520(c). 277See 20 C.F.R. § 404.1520(c)-(e). 278Id. 279R. at 36 (referencing r. at 335). 280R. at 36. 281R. at 297.

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or records show that the individual is not following the treatment as prescribed and there are no good

reasons for this failure.” The ALJ noted that Ms. Moon had refused to take prescribed medications

for her headaches in the past.282 Ms. Moon stated that she did not take her medications for fear of

side effects.283 However, there is no medical record of any side effects, and the ALJ may discount

testimony regarding side effects if not substantiated by evidence.284

2. Depression

Again, before applying the regulations to the ALJ’s credibility finding, we address Ms.

Moon’s arguments. Ms. Moon argues that, even though the ALJ did not find depression to be a

severe impairment, the ALJ still must include limitations due to depression because the ALJ is

required to consider limitations and restrictions from all impairments. Furthermore, she argues that

because the ALJ found mild limitations in functional areas during the second step of the five-step

disability claim process, the ALJ was required to include these limitations in the RFC. The

Commissioner contends that the ALJ was not required to include work-related functional limitations

even if he found mild limitations from the depression, Ms. Moon did not provide any credible

medical evidence of depression, and the ALJ’s interpretation of the evidence was reasonable. Ms.

Moon did not contest these arguments in her reply brief.

As explained above, however, the ALJ is not required to include limitations from all

impairments. Similarly, the regulations do not require the ALJ to reduce work capacity from all

limitations.285 When the ALJ assesses physical and mental abilities for the RFC assessment, 20

C.F.R. § 404.1545(b)-(c) state the ALJ first assesses the nature and extent of the limitations and

282R. at 35 (referencing r. at 328). 283Id. 284Nelson v. Sec’y of Health & Human Servs., 770 F.2d 682, 685 (7th Cir. 1985). 285See 20 C.F.R. § 404.1545(b)-(c).

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restrictions. After this assessment, the ALJ then determines the capacity for work on a regular and

continuing basis,286 which may not result in a reduction. The Act further states an ALJ may find a

limited ability to carry out certain physical and mental activities to reduce work ability.287 Thus, the

Act does not require the ALJ to reduce work capacity when the ALJ finds limitations as Ms. Moon

contends. 

Moving to the SSA regulation’s, the ALJ adequately considered the medical evidence and

the factors required to discredit Ms. Moon’s allegations of disabling depression. In terms of medical

evidence, the ALJ discredited Dr. Shin’s opinion,288 which was the only medical opinion in the

record stating Ms. Moon had depression. Also, the ALJ found Ms. Moon’s three doctor’s visits over

three months to be limited treatment for the alleged depression.289 Next, the ALJ addressed the

activities of daily living, duration, frequency, and intensity factors when he found only mild

limitations due to Ms. Moon’s depression and, therefore, did not find reason to reduce Ms. Moon’s

capacity for work.290 The ALJ found mild mental limitations in three functional areas: activities of

daily living, social functioning, and concentration, persistence, or pace.291 Furthermore, for a fourth

functional area, episodes of decompensation, the ALJ found no episodes of decompensation of

extended duration.292 To support these findings, the ALJ cited evidence such as Ms. Moon’s ability

28620 C.F.R. § 404.1545(c). 287Id. 288R. at 37. 289R. at 500. 290R. at 32. 291Id. 292Id.

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to: care for her daughter;293 grocery shop alone;294 interact and communicate with others;295 read

books,296 and the absence of hospital stay due to decompensation.297

3. Sustained Work Capability

For Ms. Moon’s last RFC argument, she contends that her episodes of severe pain would

cause her to frequently miss work and, therefore, she is not able to adequately perform “sustained

work activities.” The Commissioner responds that the ALJ had substantial evidence to find Ms.

Moon’s alleged sustained work incapability not credible. Ms. Moon did not contest this argument

in her reply brief. 

The ALJ stated that he discounted Ms. Moon’s allegation of her inability to perform

sustained work because it was based solely on Dr. Shin’s opinion, which the ALJ gave little weight.

Although this is the only reason the ALJ expressed specifically for this particular allegation, the ALJ

also provided substantial evidence to discredit Ms. Moon generally. For example, the ALJ noted Ms.

Moon can perform cooking, cleaning, and other daily activities as well as take care of her child.

Second, the ALJ noted that while Ms. Moon stopped going to her physical therapy appointments

because of her alleged debilitating pain, Ms. Moon’s claims contradicted the physical therapist’s

reports of improvements in pain, and Ms. Moon still was still able to attend her chiropractic

appointments three days a week.298 Along with that, even if Ms. Moon had attended all appointments,

the ALJ found the physical therapy and chiropractic treatment to be conservative treatment for the

293R. at 32, 64. 294R. at 32, 66. 295R. at 32, 65. 296Id. 297R. at 32. 298R. at 80-81.

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alleged severity of pain.299 The ALJ also noted Ms. Moon had relief from back pain during an office

visit with Dr. Crevier, which took place during the alleged disability period.300

This evidence adequately addressed the activities of daily living, treatment, and functional

limitation factors used to assess credibility. Therefore, this evidence provided sufficient support for

the ALJ’s determination that Ms. Moon’s episodes of pain were not as severe as she claimed and

would not preclude her from working as frequently as she claimed.

C. Dr. Shin’s Opinion

Ms. Moon argues the ALJ erred because he did not give any weight to Dr. Shin’s medical

opinion, which stated Ms. Moon had severe depression. The Commissioner argues that the ALJ had

sufficient reasons to discount Dr. Shin’s opinion and that Dr. Shin was not a treating source. Ms.

Moon did not further argue or contest these arguments in her reply brief.

When the Commissioner evaluates medical opinions, 20 C.F.R. § 404.1527 states the

Commissioner will consider the following to determine the weight given to the medical opinion:(1)

the examining relationship; (2) the length of the treatment relationship; (3) the frequency of the

examinations; (4) the nature and extent of the treatment relationship; (5) the amount of relevant

evidence to support an opinion; (6) the consistency with the record; (7) the physician’s specialization

of knowledge; and (8) other factors the claimant presents to the SSA. Furthermore, if the ALJ

discredits a physician’s opinion after considering these factors, this Court must affirm the ALJ’s

decision when the ALJ “minimally articulated” his reasons for discrediting the opinion.301

The ALJ addressed several of these eight factors and “minimally articulated” his reasons for

299R. at 36. 300R. at 36 (see r. at 524). 301Elder v. Astrue, 529 F.3d 408, 415 (7th Cir. 2008).

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discrediting Dr. Shin’s opinion. The ALJ noted the length and frequency of Ms. Moon’s treatment

relationship was three office visits over only three months.302 The ALJ found that Dr. Shin provided

minimal treatment notes and no other relevant evidence to support his opinion.303 In terms of the

nature and extent of the relationship, the ALJ noted Dr. Shin diagnosed Ms. Moon with severe

depression,304 yet the record suggests a lack of treatment. Ms. Moon took no psychotropic

medications305 and, as stated above, the relationship was short.306 Further speaking to the nature and

extent of the treatment relationship, the ALJ noted the relationship ended when Dr. Shin signed a

Social Security disability benefits form,307 and Dr. Shin noted, “a physician’s form was completed

by her lawyers who assisted to get [Social Security].”308 The ALJ articulated this discussion of the

treatment relationship and relevant evidence to support discrediting Dr. Shin’s opinion.309

Then Ms. Moon argues that Dr. Shin was a treating source and the ALJ ran afoul of the

“treating physician rule,” which states, “[t]reating sources are important sources of medical evidence

and expert testimony, and that their opinions . . . are entitled to special significance; sometimes the

medical opinions of treating sources are entitled to controlling weight.”310 However, the ALJ “need

not blindly accept a treating physician’s opinion – she may discount it if it is internally inconsistent

or contradicted by other substantial evidence in the record.”311 For example, in Henke v. Astrue, the

Seventh Circuit affirmed the ALJ’s decision to reject a treating physician’s opinion.312 There, the

302R. at 35 (referencing r. at 500). 303R. at 37 (referencing r. at. 493-502). 304R. at 37 (referencing r. at. 497). 305R. at 37 (referencing r. at. 59). 306R. at 37 (referencing r. at. 500). 307R. at 37 (referencing r. at. 506). 308R. at 37 (referencing r. at. 499). 309R. at 37. 310SSR 96-5p. 311Henke v. Astrue, 498 Fed.Appx. 636, 639 (7th Cir. 2012). 312Id. at 640.

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ALJ rejected one questionnaire from the treating physician due to lack of support in the treatment

notes.313 The ALJ also rejected a second questionnaire containing conclusions about the claimant’s

chronic back pain, hip pain, and degenerative joint disease because these limitations “were otherwise

absent from the medical record, were never treated, and were unsupported by any objective medical

evidence.”314 In addition, the ALJ found that other medical evidence contradicted the treating

physician’s conclusions.315

Similar to Henke, here too Dr. Shin’s opinion is supported with limited treatment notes. Also,

similar to how the limitations in Henke “were otherwise absent from the medical record, were never

treated, and were unsupported by any objective medical evidence,” here the ALJ noted that Dr. Shin

was the only medical provider to diagnose Ms. Moon with severe depression, and Ms. Moon

received minimal treatment.316 Although the ALJ did not cite any evidence contradicting Dr. Shin’s

opinion, the ALJ did suggest internal inconsistencies given the severe diagnosis coupled with the

limited treatment.317

Finally, Ms. Moon argues that Dr. Shin was the only mental health provider to offer an

opinion, and the ALJ must therefore consider Dr. Shin’s opinion because it was “the preponderance

of the evidence.” However, as discussed above, the ALJ had sufficient ground to discredit Dr. Shin’s

opinion, and Ms. Moon’s argument that the ALJ was required to consider the opinion simply

because it was the only mental health opinion is without merit. For the foregoing reasons, the ALJ

did not err when he did not consider Dr. Shin’s medical opinion.

313Id. 314Id. 315Id. 316R. at 37. 317Id.

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V. CONCLUSION

For the reasons set forth above, Ms. Moon’s motion for summary judgment is denied [dkt.

16].

IT IS SO ORDERED.

Date: September 25, 2013 _________________

Susan E. Cox

U.S. Magistrate Judge

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