IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

GREGORY D. MARINO, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) No. 12 C 5721 

 ) 

CAROLYN W. COLVIN, Acting ) Magistrate Judge Finnegan 

Commissioner of Social Security,1 ) 

 ) 

 Defendant. ) 

 ) 

 

 MEMORANDUM OPINION AND ORDER 

 Plaintiff Gregory D. Marino brings this action under 42 U.S.C. § 405(g), seeking 

to overturn the final decision of the Commissioner of Social Security (“Commissioner”) 

denying his application for Disability Insurance Benefits (“DIB”) under Title II of the 

Social Security Act. The parties consented to the jurisdiction of the United States 

Magistrate Judge pursuant to 28 U.S.C. § 636(c). Plaintiff subsequently filed a 

summary judgment motion seeking reversal of the Administrative Law Judge’s decision, 

and the Commissioner filed a cross-motion for summary judgment seeking affirmance of 

the decision. After careful review of the parties’ briefs and the record, the Court now 

denies Plaintiff’s motion, grants Defendant’s motion, and affirms the decision to deny 

benefits. 

PROCEDURAL HISTORY 

 Plaintiff applied for DIB on March 27, 2009, alleging that he became disabled 

beginning on March 18, 2008 due to pain and limited mobility caused by a knee injury 

																																																								

1

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

Security, and is automatically substituted as Defendant in this case pursuant to Federal Rule of 

Civil Procedure 25(d)(1). 
2 

and subsequent surgeries. (R. 20, 173-75). The Social Security Administration denied 

the application initially on August 6, 2009, and again on reconsideration on December 8, 

2009. (R. 20, 88-91). Pursuant to Plaintiff’s timely request, Administrative Law Judge 

(“ALJ”) Kim Soo Nagle held a hearing on March 23, 2011, where she heard testimony 

from Plaintiff, represented by counsel, and a vocational expert. (R. 37-87). On April 14, 

2011, the ALJ found that Plaintiff is not disabled and is capable of performing jobs that 

exist in significant numbers in the regional and national economy. (R. 30-31). The 

Appeals Council denied Plaintiff’s request for review on May 22, 2012. (R. 1-5). 

 Plaintiff now seeks judicial review of the ALJ’s decision, which stands as the final 

decision of the Commissioner. In his brief, Plaintiff argues that the ALJ erred in four 

respects: (1) failing to consider certain severe impairments at Step 2 of the analysis; (2) 

mischaracterizing and failing to give controlling weight to the opinion of treating 

physician Dr. Branovacki; (3) finding Plaintiff only partially credible; and (4) not finding 

Plaintiff’s RFC to be more restricted as to his physical limitations concerning lifting, 

repetitive motions, and standing, as well as his non-exertional and mental limitations. 

FACTUAL BACKGROUND 

 Plaintiff was born on June 18, 1965 and was 42 years old on his alleged disability 

onset date. (R. 30). He completed two years of college. (R. 30, 197). Plaintiff worked 

as a tractor-trailer truck driver from the time he completed truck driving school in 1994 

until he was injured on the job in March 2008. (R. 30, 190, 197). His job consisted of 

driving and unloading trucks; breaking down, separating, and picking up loads; heavy 

lifting and placing of loads onto docks or pallets; and breaking down boxes. (R. 190). 
3 

A. Plaintiff’s Medical History 

 1. Right Knee Injury 

 Plaintiff states in his application for benefits that he was injured at work on March 

18, 2008. (R. 189). The earliest documentation in the case record is an MRI of 

Plaintiff’s right knee, taken on April 1, 2008, which revealed a low to mid-grade injury of 

the medial collateral ligament, mild irregularity of the medial meniscus, a bone 

contusion, joint effusion, bursitis, subluxation of the patella, mild chondromalacia of the 

patellofemoral joint, and mild thinning of the medial patellar retinaculum. (R. 283-84). 

 Three weeks later, on April 21, 2008, Plaintiff was evaluated by Dr. Ram Aribindi, 

MD of Southland Bone & Joint Institute, who noted that Plaintiff complained of left elbow 

and right knee pain after tripping over a pallet at work. (R. 460). Dr. Aribindi’s physical 

examination of the right knee showed some tenderness over the medial joint line and 

over the MCL origin over the medial epicondyle region, no medial joint line opening with 

valgus stress to the knee, no tenderness laterally, good flexion and extension of the 

knee, and a negative Lachman’s test. (Id.). Dr. Aribindi noted that the MRI revealed a 

sprain of the medial collateral ligament (MCL) and chondromalacia of the patella 

(inflammation of the kneecap). (R. 461). The doctor recommended Naproxen, home 

exercise, physical therapy, and modified work duties, including refraining from squatting 

or kneeling on the right knee. (R. 461, 472). 

 At a follow-up visit on May 12, 2008, Plaintiff continued to complain of pain over 

the anterior aspect of his right knee with prolonged sitting as well as some pain with 

stairs. Dr. Aribindi’s examination showed no effusion, no pain with varus or valgus 

stress to the knee, good flexion and extension, and a negative Lachman’s test. (R. 
4 

459). Dr. Aribindi’s treatment plan for the knee consisted of losing weight and keeping 

fit, including home exercise, and taking Naproxen intermittently as needed. (Id.). He 

cleared Plaintiff to return to work the next day. (Id.). 

 Plaintiff attended four physical therapy sessions at Southland Bone & Joint 

Institute in late April and early May 2008, and he was discharged from physical therapy 

on June 2, 2008 “as [he] did not represent to therapy.” (R. 482-91). At his last session 

on May 8, 2008, Plaintiff reported “doing better overall” with “mild knee discomfort.” (R. 

484). 

 On May 18, 2008, Plaintiff was examined by Dr. George Branovacki, MD of 

Midwest Orthopaedic Consultants. (R. 527). Dr. Branovacki’s exam found a normal left 

elbow, while the right knee showed mild effusion with pinpoint tenderness over the tibial 

plateau by the MCL insertion, pain with valgus stressing on the medial side of the knee, 

no instability of the knee, full range of motion, and ability to straight leg raise. (Id.). The 

doctor concluded that the elbow had recovered but that the right knee has an MCL 

sprain, for which he recommended rehabilitation and a knee brace. (R. 528). At a 

follow-up visit on June 9, 2008, Plaintiff continued to complain of knee tenderness, 

although he reported that “his pain is getting better.” (Id.). He began physical therapy 

with Midwest Orthopaedic on June 11, 2008 and continued until August 18, 2008. (R. 

378-82). On July 7, 2008, Plaintiff was still experiencing some pain and discomfort, for 

which Dr. Branovacki recommended a larger brace and continued physical therapy. (R. 

525). 

 However, on August 18, 2008, Dr. Branovacki recommended knee arthroscopy 

after six months of “failed conservative management” and an MRI that “does confirm 
5 

some small meniscus tears and some inflammation that is from an effusion and 

chondral injury.” (R. 526). Plaintiff preferred to continue non-operative management for 

another month, but on September 22, 2008 he complained of knee pain such that “he 

can barely walk.” (Id.). Dr. Branovacki referred Plaintiff for a left knee MRI and right 

knee arthroscopy, but also stated, “We can set up knee arthroscopy for both knees as 

well.” (Id.). 

 An MRI of the right knee on September 9, 2008 showed a small bone contusion 

at the lateral tibia with improvement since April 2008, small joint effusion, mild 

degenerative changes, and abnormal signal intensity of the medial meniscus 

unchanged since prior examination and most likely representing degenerative 

fibrillation. (R. 363). An MRI of the left knee on September 28, 2008 showed small joint 

effusion with a small cyst, vertical tear of the junction of the posterior horn and mid body 

of the medial meniscus, marrow edema consistent with contusion, and a nonspecific 

edema. (R. 361). 

 At a follow-up visit on October 9, 2008, Dr. Branovacki noted that both of 

Plaintiff’s knees “are acting up significantly,” and the MRIs “confirm meniscus tears 

medially in both knees as well as a significant amount of knee effusion.” (R. 523). 

Plaintiff agreed to bilateral knee arthroscopic surgery. (Id.). 

 2. Bilateral Knee Surgery and Post-Operative Infection 

 On November 14, 2008, Dr. Branovacki performed a bilateral knee arthroscopy, 

with bilateral chondroplasty, right medial meniscus partial medial meniscectomy, and 

bilateral injection of steroid to the knees. (R. 288-90). There were no complications 

and Plaintiff was stable post-surgery. (Id.). 
6 

 On December 19, 2009, Plaintiff’s therapist sent him to Dr. Branovacki’s office 

due to some fluid drainage in the right knee, which was bandaged until his previously 

scheduled appointment with the doctor a few days later. On December 23, 2008, 

Plaintiff complained of pain and swelling, and Dr. Branovacki aspirated the knee and 

gave Plaintiff a prescription for antibiotic Keflex, which Plaintiff did not fill. (R. 294). 

 On December 26, 2008, Plaintiff presented to Christ Hospital Emergency Room 

with severe right knee pain, ongoing for several days, which prevented him from 

standing. (R. 292). Dr. Sampath Kumar diagnosed Plaintiff with septic (infectious) 

arthritis and gave him IV antibiotics and pain medication. (R. 291, 294). A culture 

showed Proteus, Staph Aureus, and MRSA infections. (R. 291). Arthroscopic irrigation 

and debridement was performed by Dr. Daniel Troy on December 27 and by Dr. 

Richard Lim on December 29. (R., 294, 303-07). Plaintiff was discharged on 

December 31, 2008 with six weeks of IV antibiotics. (R. 291, 294, 812-13). 

 Plaintiff continued to see Dr. Branovacki for follow-up treatment in January and 

February 2009 and was prescribed Flexeril and Norco during this time period. (R. 400-

14, 1219-23). On February 27, 2009, Plaintiff underwent a venous Doppler ultrasound 

of his right arm which revealed a thrombosis of the right axillary vein caused by the 

placement of the PICC line which was used to deliver the IV antibiotics. (R. 429, 431). 

A Doppler of his right lower leg revealed no evidence of thrombosis. (R. 442). Plaintiff 

was admitted to Ingalls Hospital where his arm thrombosis was treated with Coumadin 

and Arixtra. (R. 431, 438). While at Ingalls, Plaintiff was evaluated for other ailments, 

including right knee pain. (R. 438-39). 
7 

 3. Ongoing Knee Pain 

 Plaintiff continued to complain of right knee pain throughout 2009, and underwent 

physical therapy in early 2009. On April 3, 2009, a physical therapy progress report 

stated that Plaintiff experiences soreness in his left knee at a level of 4.5 out of 10 in the 

morning and none otherwise, and in his right knee at a level of 6.5 out of 10 in the 

morning and otherwise 4 or 5 out of 10. (R. 370-72). The report also noted that Plaintiff 

has continued swelling, poor balance, good strength, and can walk short distances. (R. 

372). Over the course of June 2009, Plaintiff received five Supartz injections to his right 

knee, and by the second injection he had no tenderness or swelling and no change in 

his range of motion. (R. 511-14). 

 On June 5, 2009, Plaintiff met with pain specialist Faris Abusharif, MD for an 

initial consultation. (R. 645-47). Dr. Abusharif discontinued Plaintiff’s use of Norco, and 

started him on Ultram, Neurontin, and Voltaren gel for his knee pain. (R. 647). On June 

9, 2009, Plaintiff met jointly with Dr. Abusharif and pain psychologist Peter Brown, 

Psy.D. (R. 506-07). Dr. Brown noted that Plaintiff “is demonstrating a high degree of 

discouragement or identification with the disabled role” and “believes that treatment is 

something that is done to him, rather than something he participate in.” (R. 506). He 

further noted that Plaintiff’s “coping style is difficult to treat” and recommended a twomonth treatment strategy of meeting jointly with the pain physician and pain 

psychologist, followed by meeting with the pain psychologist only to convert the 

physician’s instructions “into protocols with emphasis on [the] patient’s role and 

responsibilities.” (R. 506-07). At Plaintiff’s next visit on July 22, 2009, he met with Dr. 
8 

Brown and Dr. Abusharif who reviewed an increased activity protocol with Plaintiff 

focused on walking. (R. 503-04). 

 When he saw Dr. Branovacki on July 27, 2009, Plaintiff had ceased using 

narcotic pain medication and complained of right knee and back pain and left knee 

discomfort. (R. 509). Dr. Branovacki examined the right knee and noted “a normal 

exam with no effusion and no warmth,” “good range of motion,” and “tender to 

palpation.” (Id.). He “offered [Plaintiff] a Medrol Dosepak to see if this helps him and 

[noted] he will be on maintenance steroids for a short time.” (Id.). He also cleared 

Plaintiff to return to work for a trial of sedentary administrative duty. (Id.). 

 4. Consulting Assessments for Benefits Application 

 Upon referral from Dr. Branovacki, physical therapist Amy Beckman performed a 

Functional Capacity Evaluation (FCE) of Plaintiff on April 22, 2009. (R. 367-69). Ms. 

Beckman concluded that Plaintiff “provided sub-maximal physical effort during testing,” 

meaning that he “may be able to do more physically at times than was demonstrated 

during this testing day.” (R. 367-68). Along similar lines, Ms. Beckman concluded that 

“[o]verall test findings, in combination with clinical observations, suggest considerable 

question be drawn as to the reliability/accuracy of [Plaintiff’s] subjective reports of 

pain/limitation.” (R. 368, 369). She noted that Plaintiff is not capable of resuming work 

as a truck driver at this time, but heart rate analysis with fitness testing indicates he can 

perform work at the medium physical demand level, although currently restricted to 

lifting no more than 5 pounds with his right arm due to his thrombosis. (R. 368). She 

further noted that the right arm restriction prevents her from determining Plaintiff’s lifting 
9 

tolerance at this time. (Id.). Ms. Beckman recommended a trial of work conditioning 

and referral to a pain program. (R. 369). 

 On July 31, 2009, Dr. Vidya Madala completed a Physical Residual Functional 

Capacity Assessment for the Illinois Bureau of Disability Determination Services 

(“DDS”) based on a diagnosis of bilateral arthroscopies of the knees. (R. 492). She 

concluded that Plaintiff can occasionally lift or carry 20 pounds, frequently lift or carry 10 

pounds, stand and/or walk (with normal breaks) at least 2 hours in an 8-hour work day, 

sit (with normal breaks) about 6 hours in an 8-hour work day, and is limited in his ability 

to push and/or pull in his lower extremities. (R. 493). Dr. Madala noted that Plaintiff 

had bilateral arthroscopy in November 2008 and right knee arthroscopy and 

debridement in December 2008; began physical therapy in January 2009; requires 

assistance with walking due to knee weakness; and “appears” to have “reached 

maximal benefit” as of April 30, 2009. (Id.). Due to his knee problems, she found that 

Plaintiff is frequently limited in balancing and stooping; occasionally limited in climbing 

ramps or stairs, kneeling, crouching, and crawling; and is never able to climb ladders, 

ropes or scaffolds. (R. 494). Finally, she found that Plaintiff has no manipulative, 

visual, communicative, or environmental limitations, except that he should avoid 

concentrated exposure to hazards such as machinery and heights due to his knee 

problems. (R. 495-96). Dr. Madala noted Plaintiff’s complaints of pain and fatigue, 

including that he has severe pain in both knees that prevents him from driving a truck, 

walking without a cane, standing for long periods of time, doing chores around the 

house, lifting his legs, or lifting more than 5 pounds. (R. 497). She found Plaintiff’s 

statements to be “partially credible in light of the overall evidence,” but concluded that 
10 

his stated functional limitations exceed those supported by the objective medical 

findings. (R. 499). 

 On August 6, 2009, the Social Security Administration denied Plaintiff’s 

application for benefits. (R. 88-89). 

 5. Treatment After Denial of Benefits 

 On September 17, 2009, pain psychologist Dr. Brown noted that Plaintiff remains 

on light duty at work, reported increased work tolerance (from 2-3 hours per day up to 6-

7 hours per day), and continues to work four days per week. (R. 501). On September 

28, 2009, Dr. Branovacki examined Plaintiff’s knee and found it “fairly normal except for 

a lot of apprehension in trying to examine his knee and tenderness to palpation 

throughout the knee,” but noted that the knee was not hot, there was no effusion or 

instability, and Plaintiff has full range of motion. (R. 510). Dr. Branovacki concluded 

that all he could suggest was a trial of Flector patches for the pain and continuation of 

chronic pain management with the pain specialist. (Id.). Dr. Branovacki noted that he 

believes Plaintiff will be at maximum medical improvement within one or two months, 

and that “[a]s far as I can tell he is permanently disabled with his knee...although his 

exam does not indicate this chronic pain, [and] sometimes manifests with a normal 

exam as in the case with many people with low back pain.” (Id.). 

 In a report dated November 10, 2009, Dr. Abusharif noted that on October 15, 

2009, Plaintiff complained of right knee pain at a level of 5 to 6 out of 10, although 

Plaintiff reported improvement with a combination of Neurontin and Voltaren gel. (R. 

638). Dr, Abusharif concluded that Plaintiff’s pain “seems to be at a maximum medical 

improvement” and that there is “no additional intervention I can recommend.” (Id.). 
11 

 On November 23, 2009, Dr. Branovacki noted “essentially no change from 

[Plaintiff’s] last visit.” (R. 654). His examination showed “a little bit of effusion and 

tenderness to palpation” and “[a] lot of hypersensitivity.” (Id.). Dr. Branovacki opined 

that Plaintiff “is disabled with his knee both mentally and physically and he cannot really 

work in a functional capacity at this time” and recommended vocational rehabilitation to 

train for a new position. (Id.). Dr. Branovacki concluded as follows: 

There is not much I can offer him for his knee at this time. He may need 

knee replacement down the road. I would not recommend any surgery for 

him for several years to come as this is very emotionally draining for him 

and he did not recover well from simple arthroscopy despite a 

complication which was treated appropriately, being infection. He seems 

to be more concerned about being fired from a new job than actually 

learning to do the new job and I think emotionally he is not ready to tackle 

a new job as of yet but I am hoping retraining in something he is interested 

in might get him back to work and productive. I will release him to 

modified duty where he can do very limited light desk job type activities 

pending vocational reassignment and training. I believe he is MMI at this 

time for his knee and I hope that he can find a job that he is comfortable 

doing. I will see him again on a prn [pro re nata or as needed] basis. 

(Id.). 

 6. Denial of Benefits on Reconsideration 

 On December 7, 2009, Dr. Towfig Arjmand completed a Request for Medical 

Advice on Reconsideration for the DDS. (R. 616-18). Dr. Arjmand reviewed all the 

evidence in the file and affirmed Dr. Madala’s RFC of July 31, 2009 and the decision 

denying benefits dated August 6, 2009. (R. 617). Dr. Arjmand incorporated by 

reference the statement of evidence in the denial of benefits, noting that the additional 

records submitted upon reconsideration indicate a normal knee exam with no effusion 

or warmth, good range of motion with tenderness to palpation, and no instability and full 

range of motion upon exam on September 28, 2009. (R. 618). Plaintiff’s application 

was denied on reconsideration on December 8, 2009. (R. 90-91). 
12 

B. Plaintiff’s Testimony 

 In a November 9, 2009 Function Report submitted in support of his application 

for reconsideration of the denial of benefits, Plaintiff stated that his daily activities 

consist of taking a shower; going downstairs; making his kids’ lunch, feeding them 

breakfast and sending them off to school; going to the mall with his wife to walk one 

level and have lunch; cleaning the house “a little;” helping the kids with homework; 

eating dinner, watching TV, and going to bed. (R. 233). He helps feed and groom the 

pets; prepares food such as frozen pizza, sandwiches, and hot dogs although he has 

trouble standing for longer than 15 minutes; and “can do some laundry and clean or 

dust about the house,” which he does for “about an hour or two, once a week.” (R. 234-

35). He grocery shops once every two weeks for two hours. (R. 236). 

 At the hearing before the ALJ on March 23, 2011, Plaintiff testified that he injured 

his knee and elbow in March 2008 when he tripped over a pallet at work and fell on the 

cement. (R. 48-49). When he returned to work briefly in 2009, Plaintiff was assigned to 

do paperwork at a warehouse. (R. 58). He testified that he did this job for “a week or 

two” or “maybe three,” although the ALJ noted that Dr. Abusharif indicated he had been 

back at work for six to eight weeks. (R. 59). Plaintiff said that he stopped working when 

Dr. Branovacki “told me I’m on chronic disability” and “shouldn’t be doing the warehouse 

work I was doing then, you know, because the pain was driving me nuts.” (R. 59-60). 

Plaintiff was given “at least a dozen” shots to each knee and they were drained, and “it 

still didn’t help any,” so he was put on permanent disability and fired from his job. (R. 

60). 
13 

 Plaintiff testified that he cannot return to work because he cannot sit, stand, or 

walk for very long; cannot kneel or bend down; has difficulty rising from a chair and 

walking stairs; and has a “short memory.” (R. 60-61). He also said that he has 

constant, sharp pain in his knees, and that the medication “cuts down [the pain] a little 

bit, but not all the way,” reducing the pain to a 7 out of 10. (R. 61-62). His weight went 

up from 230 to 310 in the past year. (R. 65). He says he takes “30 pills a day” and “four 

shots in the stomach” for his pain, diabetes, and other ailments, and his medication has 

caused memory problems. (R. 62-63). He also hears “ringing in my ears constantly” 

and has difficulty sleeping. (R. 68, 71-72). 

 Plaintiff further testified that he takes medication for depression due to his pain, 

although he could not recall the name of the medication or how long he has taken it, 

stating “’[o]ne or two years, maybe three.” (R. 64-65). Plaintiff said that he’s not sure 

the medication is working since he “want[s] to cry all the time” and is “upset” because 

the “pain is just killing me.” (R. 65). He is “always in a fog” and cannot focus. (R. 73). 

 In terms of his physical capabilities, Plaintiff testified that he can sit for an hour to 

an hour and a half; stand for five to ten minutes with his cane but will fall without it; walk 

for five to ten minutes with his cane; lift a gallon of milk; and has difficulty going up and 

down stairs, although he does so in his home daily, one step at a time holding the 

bannister. (R. 54-57). On a typical day his wife will drive him to the mall, where he will 

“walk a little bit halfway and sit down for about 15-20 minutes, walk the other half, come 

back, sit there for 20 minutes, and after that we go home.” (R. 50). Sometimes he uses 

a motorized chair at Walmart. (Id.). He has used a cane at all times since March 2008, 
14 

and can only drive short distances, estimating he drives “maybe 15 minutes a year,” due 

to knee pain. (R. 50-53, 67). 

 In terms of household activities, Plaintiff reads, helps his children with their 

homework, sometimes with assistance from his sister, and “sometimes” prepares dinner 

for the kids although “the only thing I could cook probably is the hot dogs,” and other 

times his wife picks up dinner at McDonald’s. (R. 53). He is unable to do any 

housework or chores and cannot do the shopping, although he can shower on his own, 

occasionally with assistance from his wife to reach his feet. (R. 54). 

C. Vocational Expert’s Testimony 

 Randall Harding testified at the hearing as a vocational expert (“VE”). (R. 74-85). 

He identified Plaintiff’s past relevant work as tractor trailer truck driver and classified it 

as semi-skilled work at the medium physical demand level that was performed at the 

medium and heavy levels. (R. 75, 77). 

 The ALJ then described to the VE a hypothetical individual of Plaintiff’s age, 

education, and work experience who can perform light work consisting of “occasionally 

lifting 20 [pounds], frequently lifting 10 [pounds], standing or walking at least two hours 

in an eight-hour work day, [and] sitting about six hours.” (R. 77-78). However, pushing 

and pulling is limited in the right knee consistent with Dr. Madala’s assessment, and the 

individual also cannot climb ladders, ropes, or scaffolds; can occasionally climb ramps 

and stairs; can frequently balance and stoop; can occasionally kneel, crouch, and crawl; 

and must avoid concentrated exposure to hazards such as machinery and heights. (R. 

78). The VE testified that such an individual would be unable to perform Plaintiff’s past 
15 

relevant work, but could perform other representative jobs in the Chicago area, 

including ticket seller (800 positions), cashier (16,000), and router (900). (R. 79). 

 The ALJ then presented a second hypothetical restricting the individual to 

sedentary work, consisting of lifting up to 10 pounds occasionally; standing and walking 

for less than two hours per work day; sitting for approximately six hours per work day 

with normal breaks; never climbing ladders, ropes, or scaffolds; occasionally climbing 

ramps or stairs; occasionally balancing with the use of a handheld assistive device (only 

for uneven terrain, prolonged ambulation, and when standing); occasionally stooping; 

never crouching, kneeling, or crawling; and avoiding concentrated exposure to hazards 

such as dangerous machinery and unprotected heights. (R. 80). The VE testified that 

such an individual would be able to perform representative jobs such as addresser (500 

positions regionally), document preparer (400), and optical assembler (300). (R. 80-81). 

 The ALJ next presented a third hypothetical that maintained the restrictions 

described in the second hypothetical but added the additional restriction of needing 

three to four unscheduled bathroom breaks in addition to the standard breaks. (R. 81). 

The VE testified that this additional restriction would eliminate all positions. (Id.). 

 The ALJ next presented a fourth hypothetical that maintained the restrictions 

described in the second hypothetical but added the additional restriction of needing two 

unscheduled bathroom breaks in addition to the standard breaks. (R. 82). The VE 

testified that “it would be employer-specific, and it would be length of time required, 

whether or not it interfered with production and performance,” but concluded that the 

addresser and document prepared jobs would remain, while the optical assembler job 
16 

may be eliminated. (Id.). The VE also stated that this individual could perform the 

charge account clerk job (150 jobs regionally). (R. 83). 

 Lastly, the ALJ presented a fifth hypothetical that maintained the physical 

restrictions described in the second hypothetical and the unscheduled bathroom breaks 

required under the fourth hypothetical, but added the additional restrictions that the 

individual “was moderately limited in concentration such that they require reminders 

from a supervisor one time a day regarding their tasks” and “they’d be limited to routine 

and repetitive tasks.” (R. 83). The VE testified that the routine and repetitive task 

restriction would eliminate the charge account clerk job, but that the reminder restriction 

would not affect the positions he previously identified. (R. 84). 

 Finally, Plaintiff’s attorney asked the VE if the hypothetical individual “is restricted 

within the sedentary level to certain types of sedentary work,” to which the VE 

responded yes. (R. 85). 

D. ALJ’s Decision 

 In applying the five-step sequential analysis required by 20 C.F.R. § 404.1520(a), 

the ALJ first determined that Plaintiff has not engaged in substantial gainful activity 

since the alleged onset date of March 18, 2008. (R. 22). At Steps 2 and 3, she 

determined that Plaintiff’s history of bilateral knee arthroscopies, bilateral knee pain, and 

obesity are severe impairments, but that they do not meet or equal any of the listed 

impairments identified in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 23-26). 

Specifically, the ALJ noted that following bilateral knee surgery in November 2008 and a 

subsequent infection requiring hospitalization, Plaintiff began outpatient physical 

therapy in January 2009 and had an “essentially benign” right knee examination in April 
17 

2009 despite complaining of pain. (R. 24). In June, 2009, a pain specialist started 

Plaintiff on pain medication and administered a series of injections, and a pain 

psychologist “surmised that the claimant was demonstrating a high degree of 

discouragement and identification with the disabled role, a coping style which he noted 

was difficult to treat.” (R. 24-25). By August 2009, Plaintiff had returned to work and 

the pain specialist reported that his symptoms were well-controlled on his current 

medication. (R. 25). By September 2009, the pain psychologist reported that Plaintiff 

was on light duty and had increased his overall work tolerance, and in early October 

2009 Plaintiff told the pain specialist that his medications resulted in better control and 

he was tolerating work without any significant flare-ups. (Id.). Although Plaintiff 

complained of right knee pain to his orthopedic surgeon in late November 2009, his 

physical examination remained unchanged, showing “slight effusion and tenderness to 

palpitation and a lot of hypersensitivity.” (R. 25-26). 

 Proceeding to Step 4, the ALJ concluded that Plaintiff retains the residual 

functional capacity (“RFC”) to perform sedentary work except that he can only 

occasionally push or pull with the right upper extremity; can never climb ladders, ropes, 

or scaffolds but can occasionally climb ramps or stairs; can occasionally balance with 

the use of a hand held assistive device; can occasionally stoop but can never crouch, 

kneel, or crawl; must be allowed to use a hand held assistive device for uneven terrain, 

prolonged ambulation, and at all times when standing; and must avoid concentrated 

exposure to dangerous machinery and unprotected heights. (R. 26). In addition, the 

ALJ specified that Plaintiff “has moderate limitations in concentration and needs 

reminders from supervisors regarding work tasks approximately once a day” and “is 
18 

also limited to work consisting of routine and limited tasks.” (Id.). Finally, the ALJ found 

that Plaintiff “requires unscheduled breaks in addition to a regular lunch period and two 

normal breaks.” (R. 27). 

 The ALJ then found that Plaintiff is unable to perform his past relevant work, but 

relying on the VE, concluded that there are other jobs that exist in sufficient numbers in 

the Chicago region that Plaintiff can perform, given his age, education, work experience, 

and RFC. (R. 30-31). Accordingly, the ALJ found that Plaintiff was not disabled since 

his alleged disability onset date. (R. 31). 

DISCUSSION 

A. Disability Standard 

 A claimant who can establish he is “disabled” as defined by the Social Security 

Act, and was insured for benefits when his disability arose, is entitled to Disability 

Insurance Benefits. 42 U.S.C. §§ 423(a)(1)(A), (E); see also Liskowitz v. Astrue, 559 

F.3d 736, 739-40 (7th Cir. 2009). “Disability” means an “inability to engage in any 

substantial gainful activity by reason of any medically determinable physical or mental 

impairment which can be expected . . . to last for a continuous period of not less than 12 

months.” 42 U.S.C. §§ 423(d)(1)(A). An individual is under a disability if he is unable to 

do his prior work and cannot, given his age, education, and work experience, engage in 

any gainful employment existing in the national economy. Id. at § 423(d)(2)(A). 

 In order to determine whether a claimant is disabled, the ALJ conducts a 

standard five-step inquiry, set forth in 20 C.F.R. § 404.1520(a)(4), which requires the 

ALJ to consider in sequence: (1) whether the claimant is currently unemployed; (2) 

whether the claimant has a severe impairment; (3) whether the impairment meets or 
19 

equals one of a list of specific impairments enumerated in the regulations; (4) whether 

the claimant can perform his past relevant work; and (5) whether the claimant is able to 

perform other work in the national economy. Zurawski v. Halter, 245 F.3d 881, 885 (7th 

Cir. 2001) (citations omitted). “An affirmative answer leads either to the next step, or, 

on Steps 3 and 5, to a finding that the claimant is disabled. A negative answer at any 

point, other than Step 3, ends the inquiry and leads to a determination that a claimant is 

not disabled.” Id. (quoting Zalewski v. Heckler, 760 F.2d 160, 162 n.2 (7th Cir. 1985)); 

see also 20 C.F.R. § 404.1520(a)(4). 

B. Standard of Review 

Judicial review of the Commissioner’s final decision is authorized by Section 

405(g) of the Social Security Act. 42 U.S.C. § 405(g). A “court will reverse an ALJ’s 

denial of disability benefits only if the decision is not supported by substantial evidence 

or is based on an error of law.” Nelms v. Astrue, 553 F.3d 1093, 1097 (7th Cir. 2009). 

Evidence is considered substantial “so long as it is ‘sufficient for a reasonable person to 

accept as adequate to support the decision.’” Ketelboeter v. Astrue, 550 F.3d 620, 624 

(7th Cir. 2008) (quoting Jens v. Barnhart, 347 F.3d 209, 212 (7th Cir. 2003)). The 

reviewing court may not “displace the ALJ’s judgment by reconsidering facts or 

evidence, or by making independent credibility determinations.” Elder v. Astrue, 529 

F.3d 408, 413 (7th Cir. 2008). Even when there is adequate evidence in the record to 

support the decision, however, the findings will not be upheld if the ALJ does not “‘build 

an accurate and logical bridge from the evidence to the conclusion.’” Berger v. Astrue, 

516 F.3d 539, 544 (7th Cir. 2008) (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 

2000)); see also 42 U.S.C. § 405(b)(1). 
20 

C. Analysis 

 The Court now addresses in turn each of Plaintiff’s arguments challenging the 

ALJ’s decision. 

 1. Determination of Severe Impairments at Step 2 

 Plaintiff first argues that the ALJ’s determination is flawed because she failed to 

consider all of his significant impairments at Step 2 of the sequential analysis. An ALJ 

“is required to determine at step two of the sequential analysis whether the claimant in 

fact has an impairment or combination of impairments that is ‘severe.’” Castile v. 

Astrue, 617 F.3d 923, 926 (7th Cir. 2010) (citing 20 C.F.R. § 404.1520(a)(4)(ii)). “A 

severe impairment is an impairment or combination of impairments that ‘significantly 

limits [one’s] physical or mental ability to do basic work activities.’” Castile, 617 F.3d at 

926 (citing 20 C.F.R. § 404.1520(c)). The severity finding at Step 2 is merely a 

threshold finding, and thus if an ALJ finds that one or more impairments are severe, the 

ALJ must then at Step 3 “consider the aggregate effect of this entire constellation of 

ailments – including those impairments that in isolation are not severe.” Golembiewski 

v. Barnhart, 322 F.3d 912, 918 (7th Cir. 2003) (citing 20 C.F.R. § 404.1523); see also 

Arnett v. Astrue, 676 F.3d 586, 591 (7th Cir. 2012). The burden is on the claimant at 

Step 2 to show severity. Castile, 617 F.3d at 926-27. 

 Here, the ALJ did all that was required of her. She concluded at Step 2 that 

Plaintiff has the severe impairments of status post bilateral knee arthroscopies, bilateral 

knee pain, and obesity. (R. 23). Having made this threshold finding, the ALJ went on to 

consider these severe impairments in determining Plaintiff’s RFC (R. 27-28), as well as 

considering additional impairments, namely urinary frequency due to diuretics and 
21 

difficulty concentrating due to a combination of medication, pain, and ringing in his ears. 

(R. 28-29). Plaintiff argues that the ALJ’s Step 2 determination is incomplete because 

the ALJ only “states the impairment of the knee as knee pain and status post bilateral 

knee arthroscopies when in reality the knees had bilateral knee derangement, torn 

meniscus, contusion of the olecranon [elbow] and triceps tendonitis, right knee MCL 

sprain, chondromalacia of the patellofemoral compartment, MRSA, and septic arthritis.” 

(Doc. 22-1 at 12). As an initial matter, the ALJ’s decision clearly demonstrates that all 

of these conditions, apart from the elbow problem, are encompassed by the ALJ’s 

finding concerning Plaintiff’s knee pain and status post-arthroscopies, and the medical 

evidence makes clear that the elbow problem was resolved. But even assuming 

arguendo that Plaintiff is correct that the ALJ omitted certain conditions, he fails to 

explain how this matters given that the ALJ found three severe impairments and 

continued on in the sequential analysis. 

 Plaintiff also asserts that the ALJ at Step 2 should have considered evidence of 

deep vein thrombosis, hearing loss, high cholesterol, and dyslipidemia.” (Id.). It was 

Plaintiff’s burden at Step 2 to show that these impairments are severe and the evidence 

does not support such a conclusion. But again, even if Plaintiff could make this 

showing, he cannot demonstrate any harm because Step 2 is simply a threshold finding, 

and here the ALJ found severe impairments at Step 2 and then progressed to Step 3 

based on other severe impairments she identified. Thus, any error at Step 2 was 

harmless. 
22 

 2. Opinion of Treating Physician Dr. Branovacki 

 Plaintiff next argues that the ALJ mischaracterized and failed to give adequate 

weight to the opinion of treating physician Dr. Branovacki. A treating physician’s opinion 

is entitled to controlling weight if two conditions are met: (1) the opinion is “wellsupported by medically acceptable clinical and laboratory diagnostic techniques” and (2) 

the opinion “is not inconsistent with the other substantial evidence” in the record. 20 

C.F.R. § 404.1527(c)(2); see Scott v. Astrue, 647 F.3d 734, 739 (7th Cir. 2011); Punzio 

v. Astrue, 630 F.3d 704, 710 (7th Cir. 2011); Schaaf v. Astrue, 602 F.3d 869, 875 (7th 

Cir. 2010). If the opinion is contradicted by other evidence or is internally inconsistent, 

the ALJ may discount it so long as she provides an adequate explanation for doing so. 

Punzio, 630 F.3d at 710; Schaaf, 602 F.3d at 875; Schmidt v. Astrue, 496 F.3d 833, 842 

(7th Cir. 2007). 

 Plaintiff makes two arguments concerning Dr. Branovacki’s opinion. First, he 

contends that the ALJ erred by giving no weight to Dr. Branovacki’s November 23, 2009 

treatment notes restricting him to “limited light desk type job activities.” (Doc. 22-1 at 

13-14). But Plaintiff misstates the ALJ’s finding. The ALJ did not decline to give any

weight to the opinion; rather she concluded as follows: 

The undersigned also affords some weight to Dr. Branovacki’s November 

23, 2009 opinion indicating that the claimant was released to modified 

duty where he would be able to do a limited light desk job pending 

vocational reassignment and training. (Exhibit 16F). However, to the 

extent that Dr. Branovacki noted that the claimant was disabled, this 

particular finding is entitled to no weight as the ultimate issue of disability 

is reserved to the Commissioners (20 CFR 1527(e)(1)). 

(R. 29, citing R. 654) (emphasis added). Plaintiff also asserts, “By its own terms, this is 

not consistent with light work, either full-time or competitive employment, and is more 

restrictive than his previous release.” (Doc. 22-1 at 13-14). However, Plaintiff fails to 
23 

explain how Dr. Branovacki’s statement that Plaintiff can do “a limited light desk job 

pending vocational reassignment and training” is at all inconsistent with the ability to do 

competitive or full-time light work, or why it matters how restrictive this opinion is in 

comparison to prior opinions. Nor does Plaintiff explain how Dr. Branovacki’s statement 

is inconsistent with the ALJ’s RFC finding that Plaintiff is limited to sedentary work. To 

the extent Plaintiff argues that the November 23 opinion “took him off work completely” 

(Doc. 22-1 at 13), Dr. Branovacki’s statement on its face simply does not support such a 

conclusion given that he expressly “release[s] him to modified duty” as the ALJ 

described. (R. 654). In any event, as the ALJ correctly observed, no weight need be 

given to a physician’s opinion that a claimant is disabled or unable to work as that 

determination is reserved to the Commissioner. 20 C.F.R. § 404.1527(d)(1). 

 Plaintiff’s second argument concerning Dr. Branovacki is more difficult to 

decipher. Plaintiff simply states, “The ALJ did not consider the relationship between Dr. 

Branovacki’s very restricted release from March, 2009, in connection with his 

subsequent opinion that he was 100% disabled.” (Doc. 22-1 at 14). Plaintiff asserts 

that the ALJ “did not give any consideration to this report and did not even indicate she 

was aware of the report.” (Id.). The “report” that Plaintiff appears to reference, but does 

not describe, is one of approximately twenty “work status” forms submitted by Dr. 

Branovacki in connection with Plaintiff’s workers’ compensation claim between October 

2008 and September 2009. (R. 591-611). The March 9, 2009 work status form 

specifies that Plaintiff can return to work on modified duty on March 11, 2009 as follows: 

“Desk job only with breaks every 2 hours (10 minutes)[.] Start 4 hours per day x5 days a 

week x3 wks[.] Then 8 hours per day x 1 wk. Start 3/11/09.” (R. 600). Plaintiff argues 
24 

that these limitations are “very restricted” and that the ALJ erred by not concluding as 

much, however his brief is devoid of any support for this conclusion when, in fact, the 

work status form specifies that Plaintiff can return to work in two days and will reach fulltime sedentary capability within three weeks. Likewise, Plaintiff fails to explain how this 

opinion is markedly inconsistent with Dr. Branovacki’s November 23, 2009 opinion that 

Plaintiff can perform “a limited light desk job” pending vocational retraining. (R. 654). 

Plaintiff also does not discuss any of the medical evidence or opinions in the nearly 9 

months between the March 9, 2009 work status report and the November 23. 2009 

treatment notes. 

 In sum, Plaintiff’s contention that Dr. Branovacki found him to be entirely disabled 

and unable to work is not supported by the very evidence cited by Plaintiff. Even if Dr. 

Branovacki had made such findings, a treating doctor’s opinion about whether a 

claimant is disabled is not entitled to controlling weight. Accordingly, Plaintiff fails to 

demonstrate that the ALJ disregarded, mischaracterized or failed to accord sufficient 

weight to Dr. Branovacki’s opinions. 

 3. Credibility Finding 

 Plaintiff next argues that the ALJ’s credibility determination was improper. An 

ALJ’s credibility finding is accorded deference and may be overturned only if it is 

“patently wrong.” Pepper v. Colvin, 712 F.3d 351, 367 (7th Cir. 2013) (citing Craft v. 

Astrue, 539 F.3d 668, 678 (7th Cir. 2008)). However, “an ALJ must adequately explain 

his credibility finding by discussing specific reasons supported by the record,” Pepper, 

712 F.3d at 367 (citing Terry v. Astrue, 580 F.3d 471, 477 (7th Cir. 2009)), and must 

connect credibility determinations to the record evidence by an “‘accurate and logical 
25 

bridge,’” Castile, 617 F.3d at 929 (quoting Shramek v. Apfel, 226 F.3d 809, 811 (7th Cir. 

2000)). For the reasons discussed below, the ALJ’s credibility determination is 

supported by substantial evidence. 

 After considering Plaintiff’s testimony concerning his pain, mental impairments, 

and activities of daily living, the ALJ concluded that “more weight is given to the 

treatment records than to the claimant’s testimony.” (R. 28). While the ALJ noted the 

significant amount of evidence pertaining to Plaintiff’s knee surgery and subsequent 

hospitalization for a staph infection, she afforded greater weight to the treatment records 

than to Plaintiff’s testimony because: the physical examination findings were largely 

normal; neither Dr. Abusharif nor Dr. Branovacki indicated that Plaintiff was a candidate 

for additional surgery or required continued care; and the pain psychologist opined that 

Plaintiff was not as active in his recovery process as he should have been “which was a 

psychological impediment to his overall functioning ability and return to work status.” 

(Id.). The ALJ further observed that treatment for the alleged impairments had been 

“essentially non-existent” since November 2009 which coincided with when Plaintiff 

completed a Function Report in which he indicated that his activities of daily living were 

“much broader” than they were when he testified at the hearing. The ALJ reasoned that 

“[b]y implication, [Plaintiff’s] overall condition would have deteriorated to correspond to 

his decreased functioning. Nevertheless, [Plaintiff] did not seek additional medical 

treatment, which is inconsistent with a finding that his conditional actually worsened.” 

(Id.). As for the alleged side effects of medications (urinary frequency and difficulty 

concentrating), the ALJ noted that the “record does not reflect serious adverse 

pharmacology related side effects impairing his capacity to perform basic work tasks.” 
26 

(R. 29). Finally, the ALJ relied on the fact that Dr. Branovacki and Dr. Abusharif opined 

in July and September 2009, respectively, that Plaintiff was able to return to sedentary 

work. (R. 28-29). 

 a. Daily Activities 

 While Plaintiff’s arguments are not fully developed, he appears to argue first that 

his daily activities establish he is unable to work. The ALJ considered and summarized 

Plaintiff’s testimony regarding his pain and physical limitations, including that he uses a 

cane at all times, can sit for an hour and a half and stand for 10-15 minutes, has 

problems climbing stairs, and is able to lift a gallon of milk. (R. 27). The ALJ also 

recounted Plaintiff’s testimony about his daily activities, including that he provides 

childcare when his wife is at work in the evenings, occasionally prepares meals for his 

children, helps them with homework, and reads and spends time with his family. (R. 

28). However, the ALJ concluded in her decision that the largely normal medical 

examinations do not support Plaintiff’s statements about the extent of his limitations, 

including that he “essentially regained full range of motion in both of his knees” and his 

“neurological functions in terms of motor power, reflex activity and sensation were 

intact, and his musculoskeletal and extremity reviews were free of deformity, clubbing, 

cyanosis, edema, heat, discoloration, ulceration, diminished pulsation or atrophic 

changes.” (Id.). She also observed that the Function Report, which Plaintiff completed 

in November 2009, “indicates that the claimant’s activities of daily living were much 

broader than those he testified to at the hearing.” (Id.). 

 Plaintiff does not identify with any specificity what evidence the ALJ failed to 

consider concerning daily activities, nor does he explain why he believes the ALJ’s 
27 

determination to be deficient. Plaintiff merely asserts that the ALJ failed to give 

examples of inconsistencies between what Plaintiff said in the Function Report and 

during the hearing, and “[o]ur review indicates that the Function Report is consistent 

with his testimony.” (Doc. 22-1 at 16). To the contrary, the ALJ noted that Plaintiff 

testified to relying on his wife for assistance with showering, while the Function Report 

specified no problems with personal care including bathing. (R. 28, citing R. 234). 

Other inconsistencies are also apparent. For example, Plaintiff testified at the hearing 

that he is unable to do housework or chores at home (R. 54), yet in his Function Report 

he states that he feeds and brushes the pets and “can do some laundry and clean or 

dust around the house” for “about an hour or two, once a week.” (R. 234-35). As for 

cooking, Plaintiff testified that he is limited to making hot dogs, while the Function 

Report specifies that he “make[s] the kids sandwiches, feed[s] them breakfast” and 

prepares “frozen pizza, ham sandwiches and hot dogs[,] also peanut butter and jelly 

sandwiches” and that he does so once every other day for about 15 minutes. (R. 233, 

235). 

In sum, Plaintiff’s conclusory statement that the ALJ did not adequately consider 

his daily activities in assessing his credibility is insufficient to show that the credibility 

determination is flawed, let alone patently wrong. 

 b. Severity of Pain 

 Plaintiff next argues generally that his pain is more severe and limiting than the 

ALJ found it to be. In assessing a claimant’s credibility when the allegedly disabling 

symptoms, such as pain, are not objectively verifiable, an ALJ must first determine 

whether those symptoms are supported by medical evidence. See SSR 96-7p, 1996 
28 

WL 374186, at *2; Arnold v. Barnhart, 473 F.3d 816, 822 (7th Cir. 2007). If not, SSR 

96-7p requires the ALJ to “consider the entire case record and give specific reasons for 

the weight given to the individual’s statements.” Simila v. Astrue, 573 F.3d 503, 517 

(7th Cir. 2009) (quoting SSR 96-7p). The ALJ “should look to a number of factors to 

determine credibility, such as the objective medical evidence, the claimant’s daily 

activities, allegations of pain, aggravating factors, types of treatment received and 

medication taken, and ‘functional limitations.’” Simila, 573 F.3d at 517 (quoting 20 

C.F.R. § 404.1529(c)(2)-(4)). 

 Here, the ALJ did exactly that. In addition to the daily activities and objective 

medical evidence discussed above, the ALJ relied on the opinions of Dr. Branovacki 

and Dr. Abusharif that Plaintiff was not a candidate for additional surgery nor did he 

require continued care. (R. 28). She also relied on pain psychologist Dr. Brown, who 

“indicated that the clamant was not nearly as active [in] his recovery process as he 

should have been, which was a psychological impediment to his overall functioning 

ability and return to work status.” (Id.). Furthermore, she observed that Plaintiff did not 

seek additional treatment, “which is inconsistent with a finding that his condition actually 

worsened.” (Id.). Plaintiff again provides no legal or factual basis for rejecting the ALJ’s 

finding as to Plaintiff’s credibility concerning his pain. 

 c. Inactivity in Recovery Process 

 Plaintiff next complains that the ALJ put the “cart before the horse” when she 

relied (in part) on Dr. Brown’s statement – that Plaintiff was not “was not nearly as 

active [in] his recovery process as he should have been” – to support the finding that 

Plaintiff’s limitations were not as severe as he testified. (R. 28). Plaintiff argues that the 
29 

ALJ “failed to consider that Dr. Brown emphasized he is not purposefully resisting 

treatment, and attributed his mind set that [sic] if his doctors cannot fix him, he must 

accept that his condition is as good as it will get, to his coping style and mental 

impairments.” (Doc. 22-1 at 16). Again, Plaintiff’s undeveloped argument is difficult to 

comprehend. The ALJ in no way mischaracterized Dr. Brown’s statements and 

expressly noted that Dr. Brown found the lack of participation in the recovery process to 

be a “psychological impediment” to Plaintiff’s “overall functioning ability and return to 

work status.” (R. 28). Since Plaintiff fails to explain why it was patently wrong for the 

ALJ to rely on Dr. Brown’s findings in this regard when evaluating the extent of Plaintiff’s 

limitations, the argument is rejected. 

 d. Lack of Treatment After November 2009 

 Finally Plaintiff asserts that the ALJ erred in considering his failure to pursue 

medical treatment since November 2009 given that his doctors advised him that he had 

reached maximum medical improvement and that no further treatment would benefit 

him. (Doc. 22-1 at 16). A claimant’s lack of treatment may support an adverse 

credibility finding, Nicholson v. Astrue, 341 F. App’x 248, 252 (7th Cir. 2009), but an ALJ 

“must 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 infrequent or irregular medical visits or failure to seek 

medical treatment,” SSR 96-7p, 1996 WL 374186, at *7. Here, Plaintiff offered no such 

explanations at his hearing, such as inability to pay or side effects so severe that he 

was unable to take his medication. And the ALJ identified other evidence in the record 
30 

that supports the conclusion that Plaintiff failed to seek treatment after November 2009 

because he was exaggerating his pain (as evidenced by his hearing testimony 

contradicting his Function Report) and was uninterested in participating in his own 

treatment (as opined by pain psychologist Dr. Brown). (R. 28). Plaintiff points to no 

contrary evidence, nor does he now offer an explanation for failing to return to a doctor 

in the nearly 16 months preceding his hearing, during which time he claimed to be 

suffering excruciating and totally debilitating pain. 

 For these reasons, Plaintiff has failed to demonstrate that the ALJ’s credibility 

finding was patently wrong. 

4. RFC Assessment 

 Plaintiff next argues that the ALJ erred by not presenting hypotheticals to the VE 

that impose more severe restrictions on lifting, standing, and repetitive motions, as well 

as non-exertional and mental limitations. Upon closer examination, the argument 

challenges the ALJ's determination as to Plaintiff’s limitations, and on that basis argues 

that the hypotheticals do not accurately reflect Plaintiff’s RFC. Accordingly, the Court 

construes this argument as a challenge to the RFC determination, and finds the 

argument to lack merit. 

 In order to determine at Steps 4 and 5 of the analysis whether the claimant can 

perform his past relevant work or adjust to other work, the ALJ must first assess the 

claimant’s RFC, which is defined as the most the claimant can do despite his limitations. 

20 C.F.R. §§ 404.1520(e), 404.1545; SSR 96–8p, 1996 WL 374184, *2. The RFC 

determination is a legal, rather than a medical, one. 20 C.F.R. § 404.1527(d). In 

crafting the RFC, an ALJ must consider all functional limitations and restrictions that 
31 

stem from medically determinable impairments, including those that are not severe. 

See SSR 96–8p, 1996 WL 374184, *5. An ALJ is not permitted to “play doctor” or make 

independent medical conclusions that are unsupported by medical evidence or authority 

in the record. Blakes ex rel. Wolfe v. Barnhart, 331 F.3d 565, 570 (7th Cir. 2003); 

Clifford, 227 F.3d at 870. But an ALJ need not discuss every piece of evidence, and 

need only logically connect the evidence to the ALJ’s conclusions. See Jones v. Astrue, 

623 F.3d 1155, 1160 (7th Cir. 2010); Berger, 516 F.3d at 544. 

 Here again, Plaintiff relies on conclusory statements, merely reiterating his own 

subjective symptoms without in any way demonstrating that they are supported by the 

objective or opinion evidence in the record. First, Plaintiff argues that it is disputed 

whether he can lift 5 pounds or 10 pounds, how long he can stand, and the effect of his 

pushing/pulling limitations on his ability to do “repetitive motion.” (Doc. 22-1 at 17). 

What Plaintiff fails to grasp is that to the extent these limitations were in dispute, they 

were resolved by the ALJ when she made her RFC finding based on the Plaintiff’s 

testimony and the record evidence. If Plaintiff now wishes to challenge that finding, he 

must demonstrate that the finding is not supported by substantial evidence. Plaintiff’s 

list of “disputes” sheds no light on the evidentiary support, if any, for more restrictive 

limitations on lifting, standing, or repetitive motion. 

 Plaintiff also contends that the ALJ erred by not adequately considering his nonexertional limitations, namely not determining: how many breaks he needs due to 

urinary frequency problems; how many reminders he needs to address his memory 

problems; and the extent of his pain on his cognitive function. (Doc. 22-1 at 17). But 

the ALJ incorporated these limitations into the RFC and the hypotheticals posed to the 
32 

VE, by requiring two unscheduled breaks in addition to lunch and two normal breaks 

and by accounting for his moderate limitations in concentration due to pain by requiring 

once daily reminders from supervisors and limiting him to routine and limited tasks. (R. 

26-27). The VE testified that even with these limitations, there were jobs that Plaintiff 

could perform. (R. 83-84). Again, Plaintiff fails to identify any evidence that contradicts 

these RFC findings or supports more restrictive ones. 

 Plaintiff next argues that the ALJ did not adequately account for his moderate 

limitations in concentration, persistence or pace, and directs the Court to Stewart v. 

Astrue, 561 F.3d 679 (7th Cir. 2009), which held that limiting an individual to simple, 

routine tasks is not sufficient to account for deficiencies in concentration, persistence or 

pace. Id. at 684-85. But limiting Plaintiff to “routine and limited tasks” is not the only 

way in which the ALJ accounted for Plaintiff’s moderate concentration limitations; rather 

she first specified that “[d]ue to pain, the claimant has moderate limitations in 

concentration and needs reminders from supervisors regarding work tasks 

approximately once a day.” (R. 26). Plaintiff makes no argument that these limitations 

together are insufficient to address his moderate concentration difficulties, nor does he 

identify any evidence to suggest that greater limitations are called for. 

 Plaintiff next argues that the ALJ erred by not requiring a psychological 

consultative exam or mental RFC assessment concerning his depression. (Doc. 22-1 at 

18). Plaintiff cites no legal authority that a consultative exam or MRFC was required 

here, where Plaintiff never claimed to be disabled by a mental impairment, but rather 

only mentioned depression as a symptom of his pain. See Richards v. Astrue, 370 F. 

Appx. 727, 730-31 (7th Cir. 2010) (citing 20 C.F.R. § 404.1520a(e)(1)). In any event, 
33 

the ALJ adequately accounted for Plaintiff’s depression symptoms in her decision even 

though the record contains no medical evidence of depression. The ALJ heard 

Plaintiff’s testimony that he is depressed due to pain and takes pills for depression, 

although he could not recall the type of medication, the dosage, or the period of time 

during which he had been taking it. (R. 64-65). The ALJ acknowledged in her decision 

Plaintiff’s testimony “that he was depressed and feels as if he frequently wants to cry 

and is unable to think for himself.” (R. 27-28). The ALJ also considered progress notes 

from Plaintiff’s primary care physician, Dr. Chaden Sbai, dated August 13, 2010 that 

indicate Plaintiff is “going to see [a] psychologist,” while also noting that Plaintiff “feels 

better.” (R. 26, citing R. 656). Thus, the ALJ adequately considered Plaintiff’s very 

limited evidence of depression in assessing his RFC. 

 Finally, Plaintiff asserts that the ALJ “says she gave great weight to the physical 

RFC prepared by Dr. Madala, a State Agency Consultant (R. 492), but disregards the 

written statement that his knee has reached maximal benefit and he requires assistance 

with ambulation (R. 493).” (Doc. 22-1 at 15.) Specifically, Plaintiff provides a list of 

“findings” from Dr. Madala’s assessment that he argues the ALJ ignored. (Id.). But Dr. 

Madala’s report makes clear that those symptoms are merely a recounting of Plaintiff’s 

subjective complaints, not Dr. Madala’s objective findings. (R. 497). Later in her 

assessment, Dr. Madala found Plaintiff’s statements to be “partially credible in light of 

the overall evidence,” but concluded that his stated functional limitations exceed those 

supported by the objective medical findings. (R. 499). Thus, the ALJ did not err in 

declining to consider Plaintiff’s subjective complaints to the extent Dr. Madala found 

them not credible. 
34 

 Accordingly, the RFC determination is supported by substantial evidence and will 

not be disturbed. 

CONCLUSION

 For the reasons stated above, Plaintiff’s Motion for Summary Judgment [Doc. 22] 

is denied and Defendant’s Motion for Summary Judgment [Doc. 30] is granted. The 

Clerk is directed to enter judgment in favor of Defendant. 

 ENTER: 

 

 

Dated: December 30, 2013 ____________________________ 

 SHEILA FINNEGAN 

 United States Magistrate Judge