United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued June 10, 2009

Decided June 16, 2009

Before

ILANA DIAMOND ROVNER, Circuit Judge

DIANE P. WOOD, Circuit Judge

TERENCE T. EVANS, Circuit Judge

No. 08-3833

SUZANNE L. BRIHN, 

Plaintiff-Appellant

v.

MICHAEL J. ASTRUE,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 3:08-cv-00246-bbc

Barbara B. Crabb, 

Chief Judge.

ORDER

Suzanne Brihn challenges the Social Security Administration’s determination that

she is not disabled. Two previous ALJs had concluded that, though she suffered from

fibromyalgia, she was not disabled; when Brihn asked the Appeals Council to review the

second decision, the administrative record was lost, so the Council vacated that ruling and

ordered a third hearing, from which this appeal is taken. Brihn argues that the ALJ erred,

first, by favoring the opinion of the independent medical expert over that of her examining

physician; second, by doubting her credibility based on her account of her daily activities;

and third, by supporting her conclusions with references to evidence cited in the

previously vacated decision. We affirm.

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

 Fed. R. App. P. 32.1
No. 08-3833 Page 2

Background

Brihn worked as a cook at a nursing home and as a home health aide before leaving

the labor force in 1993 due to fatigue, weakness, and pain. The record does not document a

physician visit until 1995, when Brihn was referred to Dr. Conrad Butwinick, a

rheumatologist, who thought Brihn’s symptoms suggested fibromyalgia. Dr. Butwinick

tested Brihn for the tender points characteristic of that condition; finding those points

present, he diagnosed her with fibromyalgia, even though the rest of her physical exam

was unremarkable.

The following year, in 1996, Brihn’s attorney wrote Dr. Butwinick asking him to

evaluate Brihn’s condition. Dr. Butwinick replied that Brihn suffered from fatigue,

disrupted sleep, and widespread pain; he also noted that Brihn “admitted to feeling

depressed” and that “[t]here was some minor cognitive impairment.” He cautioned that

Brihn should at most occasionally carry, bend, climb, crawl, squat, push, pull, and lift

objects of any weight and advised that she could sit for up to four hours in a workday,

stand for up to two, and walk for up to three. In a 2001 follow-up letter, Dr. Butwinick

modified his recommended limitations, explaining that his earlier assessments reflected

Brihn’s best-case functional capacity, which she realized perhaps 10% of the time. 

Generally, Dr. Butwinick clarified, Brihn was incapable of climbing, crawling, or squatting

and could sit for only two hours in a workday and stand or walk for only one.

Brihn first applied for disability insurance benefits in 1996, an ALJ denied her claim,

and the Appeals Council declined review. We affirmed. Brihn v. Apfel, 2000 WL 1277628

(7th Cir. 2000) (unpublished order). Brihn reapplied for benefits in 2001, but that claim was

also denied. Brihn again asked the Appeals Council to review her case, but the

administrative record was lost, and the Council accordingly ordered a new hearing.

At her most recent hearing before an ALJ in 2007, Brihn testified that since 1997

(when the ALJ found her not disabled) she had difficulty sustaining any activity for more

than a few minutes because of pain and fatigue. Her pain worsened between 1997 and

1998, she continued, and was sometimes so intense that she could not tolerate being

touched. She also testified that she experienced spasms that prevented her from sleeping

and caused her to drop objects. Nonetheless, Brihn told the ALJ, she typically prepared her

children for school, picked up around the house and washed dishes, did laundry with

assistance, shopped for groceries (someone else had to carry her purchases), and made

dinner, although she noted that making even a simple meal might take her over an hour. 

Brihn added that she was often forgetful and needed to nap twice most days.

For reasons not reflected in the record, the ALJ brought in an impartial medical

expert, Dr. Andrew Steiner, to evaluate whether Brihn’s medical records established her
No. 08-3833 Page 3

purported impairments. Dr. Steiner thought they did not. He noted, for example, that

there was no record of any cognitive or psychiatric test to support Dr. Butwinick’s

conclusion that Brihn suffered from a cognitive impairment and depression—indeed there

were no medical records whatsoever pertaining to these conditions, beyond Dr.

Butwinick’s letters to counsel. Brihn’s complaint of muscle weakness was similarly

unsubstantiated in the record, as there was no evidence that she had undergone strength

testing (to evaluate her impairment) or been prescribed an exercise regime (to counteract

atrophy). On the other hand, Dr. Steiner conceded that Brihn’s heavy use of the painkiller

Ultram suggested that she experienced a high level of pain. All in all, according to Dr.

Steiner, the medical record established that Brihn should not use her hands and legs

continuously, but could perform all other activities without restriction.

The ALJ, accepting in part Dr. Steiner’s view of Brihn’s limitations, asked a

vocational expert whether there were jobs for a hypothetical person who could lift 10

pounds frequently and 20 occasionally, sit for two hours each workday, and spend the

remainder sitting or walking. The ALJ also incorporated into her query restrictions on

frequent repetitive leg and arm activities. For a person so limited, the VE concluded, there

existed 4,400 jobs in the state of Wisconsin, including factory laborer and office assistant.

The ALJ performed the requisite five-step analysis, see 20 C.F.R. §§ 404.1520, 416.920,

concluding that Brihn was not disabled because appropriate jobs were available to her. The

ALJ found that Brihn had not engaged in gainful work activity since the issuance of the

first ALJ decision (step one); that she had a severe combination of impairments, namely,

fibromyalgia and residual damage from knee surgery (step two); that because there was

little evidence of objective medical changes with regard to joint and muscle functioning,

these impairments did not match any listed in 20 C.F.R. pt. 404, subpt. P, app. 1 (step

three); that although Brihn suffered from impairments and could not do her past work, she

had sufficient residual functional capacity to do a job requiring some sitting, standing and

lifting of up to 20 pounds (step four); and that a person with those limitations could still

work (step five).

The Appeals Council denied review, and the district court affirmed the

Commissioner’s ruling.

Analysis

Brihn presents three challenges to the ALJ’s decision, which we review deferentially,

asking only whether substantial evidence supported the ALJ’s conclusions. Overman v.

Astrue, 546 F.3d 456, 462 (7th Cir. 2008).
No. 08-3833 Page 4

1. Examining Physician’s Opinion

Brihn argues that the ALJ was obliged to give controlling weight to Dr. Butwinick’s

opinions and impermissibly favored Dr. Steiner’s view. In particular, Brihn submits that

the ALJ was required at step two to add depression and cognitive impairment to her list of

impairments because Dr. Butwinick concluded that she suffered from those conditions. 

The ALJ was entitled to agree with Dr. Steiner that, in the absence of objective

medical or psychiatric findings or descriptions, the record did not establish any mental

impairment. An ALJ must give controlling weight to a treating physician’s opinion “only

when it is well-supported by medically acceptable clinical and laboratory diagnostic

techniques and is consistent with substantial evidence in the record.” Ketelboeter v. Astrue,

550 F.3d 620, 625 (7th Cir. 2008) (internal quotations omitted); see 20 C.F.R. § 404.1527(d)(2);

SSR 96-2p. Yet Dr. Butwinick’s opinions regarding Brihn’s purported mental impairments

were neither supported with medically acceptable diagnostic techniques nor consistent

with substantial evidence in the record. The only hints in the entire administrative record

that Brihn suffered from depression or cognitive impairment are Dr. Butwinick’s

statements that Brihn suffered from some unspecified cognitive impairment and that she

“admitted to feeling depressed” and Brihn’s own testimony that she was forgetful and had

a difficult time focusing. A claimant’s description of her own symptoms are not, however,

enough to establish an impairment, see 20 C.F.R. § 404.1508, 404.1528, and Dr. Butwinick’s

evaluation of her cognitive abilities was not grounded in any medically acceptable

diagnostic techniques.

Brihn further insists that Dr. Butwinick’s diagnosis of fibromyalgia required the ALJ

to determine that she suffered from depression and cognitive impairment—conditions she

claims are related to fibromyalgia. But as the Commissioner points out, Brihn forfeited this

argument by not making it first to the ALJ. In any event, there is nothing in the record to

support her contention that a fibromyalgia diagnosis is itself sufficient to establish the

presence of a mental impairment.

2. Residual Functional Capacity

Brihn also argues that the ALJ committed two errors in her step-four determination

of Brihn’s residual functional capacity. First, she contends that the ALJ impermissibly

failed to take into account her mental impairments. Notwithstanding the adverse finding

at step two, Brihn argues that the ALJ erred by not assessing her mental impairments, in

violation of 20 C.F.R. § 404.1545(a)(2), which requires an ALJ to consider all of a claimant’s

medically determinable impairments, including those that are not severe. This argument

misapprehends the ALJ’s step-two analysis: the ALJ determined not just that Brihn’s
No. 08-3833 Page 5

mental impairments were not severe, but that they were not even medically determinable. 

An ALJ has no obligation to discuss residual functional capacity in light of impairments

that are not medically established. See 20 C.F.R. § 404.1545(a)(2); Villano v. Astrue, 556 F.3d

558, 563 (7th Cir. 2009).

Next Brihn contends that the ALJ inappropriately discredited her based on her

account of her ability to perform household chores. She adds that the ALJ ignored the fact

that she took large doses of painkillers.

The ALJ’s credibility evaluation was not clearly incorrect. ALJs must substantiate

their credibility findings with specific and logical reasons, based on the record as a whole,

Giles ex rel. Giles v. Astrue, 483 F.3d 483, 488-89 (7th Cir. 2007), and should consider such

factors as objective medical evidence; the claimant’s daily activities; the claimant’s

treatment history; and the type, dosage, and side effects of any medications, see 20 C.F.R.

§ 404.1529(c). It is true that Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001) held that

activities much like Brihn’s (including preparing children for school, cooking meals,

cleaning up the house, shopping, and doing laundry and dishes) do not necessarily

undermine a claim of disabling pain. And the ALJ should have mentioned all of the drugs

that Brihn took, not just Ultram. See 20 C.F.R. § 404.1529(c). But the ALJ offered other

specific reasons for disbelieving Brihn’s account: there was little objective medical evidence

(e.g., no record of muscle atrophy), and Brihn’s sparse treatment history—only four visits

to Dr. Butwinick in six years—seemed inconsistent with disability. 

3. Non-Record Evidence

Brihn also contends that the ALJ went outside the record, in violation of 42 U.S.C.

§405(b) and 20 C.F.R. § 404.953(a), when she cited the previous administrative decision,

which was vacated by the Appeals Council after the administrative record was lost. The

ALJ twice referenced evidence from the prior hearing. First, the ALJ invoked the earlier

decision to support her step-two determination that Brihn had not established that she

suffers from depression or other cognitive issues:

Although the record with respect to the January 2003 decision in this case

cannot be located, the January 2003 decision indicates that the Disability

Determination Services (DDS) psychological consultants also determined that

during the period from September 1997 to December 31, 1998 the claimant

was not subject to a medically determinable mental impairment. The

undersigned gives their opinion great weight, because it is consistent with

the overall evidence of record.
No. 08-3833 Page 6

Second, in declining to reduce her step-four assessment of Brihn’s residual functional

capacity, the ALJ observed that “the opinion of the Disability Determination Services (DDS)

medical consultants, who limited the claimant to work at the light exertional level, is

essentially consistent with the above residual functional capacity. Their opinion is referred

to in the September 2003 Administrative Law Judge decision.”

Brihn is correct that citing evidence not in the current record was an error, see 42

U.S.C. §405(b); 20 C.F.R. § 404.953(a); Yang v. Shalala, 22 F.3d 913, 217 (9th Cir. 1994), but it

is not one that requires remand. This outside evidence was but one of many factors

considered by the ALJ, including Dr. Steiner’s opinion and the lack of medical or

psychiatric evaluations. Even without those citations, the ALJ’s decision would have been

well-supported.

Brihn also argues, confusingly, that the district court should have ordered the

Commissioner to reconsider her case in light of unspecified evidence from the lost record. 

Sentence six of 42 U.S.C. § 405(g) authorizes a district judge to remand a case to the Social

Security Administration if 1) the claimant presents new, material evidence that was not

incorporated into the previous agency record for a good reason, or 2) the Commissioner

requests a remand for good cause before responding to the petition for judicial review. 

Shalala v. Schaefer, 509 U.S. 292, 297 fn. 2 (1993). Brihn never made a motion to the district

court, and neither did the Commissioner, so a sentence-six remand was impossible. Even

more frivolous is Brihn’s argument that the Commissioner was somehow obligated to file a

sentence six-motion.

Finally, Brihn argues that the Commissioner deliberately interfered with her

attempts to obtain benefits by delaying and losing the record; citing Wilder v. Apfel, 153 F.3d

799 (7th Cir. 1998), she argues that this “obduracy” entitles her to benefits. This is a losing

argument because “[o]bduracy is not a ground on which to award benefits; the evidence

properly in the record must demonstrate disability.” Briscoe ex rel Taylor v. Barnhart, 425

F.3d 345, 357 (7th Cir. 2005). Moreover, the agency’s behavior here, while perhaps careless,

was a far cry from that in Wilder, 153 F.3d at 181, where the ALJ on remand ignored our

ruling that the spartan medical evidence in the record in no way contradicted the

conclusion of the agency’s own disinterested expert that the claimant was totally disabled.

Accordingly, we AFFIRM the district court’s judgment.