# Unit ed Sta tes Cou rt of Appeals For the Seventh Circui t Chic ago, I lli nois 60604
Submi tte d May 23, 2014 * Deci ded May 27, 2014
Before
ANN CLAIRE WI LLIAMS , Circ uit Judge JOHN DANIEL TIND ER, Circ uit Judge DAVID F. HAMILTON, Circ uit Judge
No. 13-2755 ROBERT CARTER, Plaintiff-Appellant,

v. CARO LYN W. COLVIN, Acti ng Commi ssi oner o f Soci al Security, Defen dant-Appellee

. Appeal from the United Stat es Di stric t Court for t he Central Dis tr i ct of Illi noi s.
No. 12-1129
Michael M. Mihm, Judge

.

O R D E R
Rober t Car ter , a 56 year -old who su ffers from depressi on and abus e of alcohol and cocaine i n remi ssi on, appeals the di stric t court ’s judgment upholdi ng the denialof hi s appli cati on for Dis abi li ty I nsu rance Benefi ts and Supplemental Securi ty I ncome. Cart er ar gues that the r ecord beli es the admini strat i ve law judge’ s determin ation that NON PRECEDENTIAL DISPOSITION To be ci ted only i n acc or dance w i th Fed. R. App. P. 32.1

After exami ning the briefs and record, we have concluded that or al argument is * unnec essary. Thus, the appeal i s submi tte d on the briefs and record. See F E D
. R. A P P
. P. 34(a)( 2)(C).No. 13-2755 Page 2

he was “malingering” before his date last in sured and that the ALJ i mproper ly 1 di scredi ted hi s testi mony re gar di ng the sever i ty o f hi s i mpai rments. Becaus e sub stanti al evidenc e supports the ALJ’s conclu si on that C art er was not dis abled, we affi rm. The earli est repo rt s in the admini strat i ve r ecord o f Carter ’s mental health date back to 1998, when he was tr ansferr ed from Coo k Co unty Jai l to Chester Mental Health Center for an ev aluati on of hi s fi tness to stand tr i al on charges of burglar y, escape, and violati ng pro bati on. He repo rt ed to do ctor s at Chester t hat he had five pr i or psychi atr i c hospi talizati ons and that he was h alluc inati ng. But a pris on psychi atr i st di scredi ted Cart er’s r epor ts of halluc i nati ons and c oncluded that, although he had a hi stor y of polysubstanc e dependence and anti soci al personali ty disorder, he was “obvious ly” malingering. He wasfound fi t for tr i al.
In 2006 Cart er, r eleased on parole j ust days earli er, was hospi talized after repo rt edly exper i encing a nerv ous breakdown and a “major relapse” in substanc e abus e. He was d i agnosed wi th a mood dis or der ind uced b y alcohol and cocaine, dependence on alc ohol and cocaine, and anti soci al personali ty disorder, and prescrib ed anti convulsant and anti psychoti c medi cati ons. Back i n pri son a year and a half later, C art er r epor ted hallucinati ons and depressi on. A prison ps ychi atr i st di scoun ted Car ter ’s “repor t of psychoticfeatures” as “somewhat self

serving and s tr ongly suggesti ve o f exagg erat i on” and spec ulated that Cart er’s “mot i vat i on for par tial m alingering mi ght be to obtain hypnot i c medi cati on” or Supplemental Security Income. For the next several mont hs u nti l hi s release from pris on, Cart er was prescribed an anti depressant, whi ch he later to ld medi cal s taff was “doin g me a lotof go od.”
So on after hi s release, Cart er applied f or So ci al Security benefi ts, allegin g that he had bec ome di sabled as of January 1997 becaus e of depressi on, a nerv ous breakdown, and “emotional instabi li ty.” He completed and subm i tte d a repor t insupp or t of his appli cati on describing hi s di ffi culty concentrating and f ollowi ng i nstructi ons. In connecti on wi th hi s appli cati on, Cart er underwent a mental status examin ation and

“Malin ger ing” i s defined in the DSM-V as the “i ntentional producti on of false 1 or gr ossly exagg erat ed physi cal or psychological s ymptoms, motivated by ex ter nal i ncenti ves such as avoid i ng mi li tar y duty, av oiding work, obtaining financi al compens ation, evading crim inal prosecuti on, or obtaining drugs.” AmericanPsych i atr i c Associ ation, Diagnostic and Statistical Manual of Menta l Disorders 726 (5th ed. 2013).No. 13-2755 Page 3

repo rt ed exper i encing “sever e depressi on” and frequent halluc i nati ons (s ever al per day). The state-exami ning psychologis t concluded that Cart er had sever e major depressi ve dis or der, alcohol and cocaine abus e i n remi ssi on, and anti soci al personali ty di sorder

. In 2009 Cart er’s appli cati on for benefi ts was d eni ed i ni tiall y and on reconsi derat i on.
Later that y ear a psycholog i st consu ltin g for the So ci al Security Admini strat i on asses sed Carter ’s fun cti onal li mi tations and c oncluded that there was i nsu ffi ci ent evidenc e to asses s the severity of Car ter ’s i mpai rments before 2000, hisdate last i nsu red. The psychologis t described Carter ’s i mpai rments after 2000 as sever e but noted that “seve ral sources have questi oned the v eraci ty” o f Carter ’s symptoms and that Cart er had the mental r esi dual fu ncti onal capaci ty t o per form unski lled tasks on a sus tain ed basi s.
Cart er was agai n incarcerated in 2011, when he had a vi deo hearing before an ALJ and testi fi ed about hi s mental li mi tations. He s ai d that he could not functi on wi thout his medi cati on, whi ch help ed stabi li ze hi s mood and control his anger. Because he was depressed, he told the ALJ, he had a “hard tim e get tin g up and movin g ar ound someti mes.” He testi fi ed further t hat he di d constructi on work i n 2007 unti l hi s employer di scovered his cri minal bac kgr ound and fi red him . Testi mony was als o presented by a v ocational expert, who was asked about work availab le to a hy pothet i cal clai mant of Cart er’s age wi th a hi gh school educati on and no past relev ant work, who could perform si mple tasks, interact superfic i ally wi th cowork ers and sup erv i sors but not wi th ot hers, and toler ate mi nor changes i n routine. Th e vo cati onal exper t opined that such a c lai mant would b e able to wor k as a mach i ne feeder, mark er, o r fastener. However , the vo cati onal exper t added that t hi s cl ai mant would not be competi tively employable i f he could not concentrat e or work persi stently t hrougho ut a two-hour period. The ALJ appl i ed the fi ve–step ev aluati on pro cess and deni ed Cart er’s appli cati on for Di sabi li ty I nsu rance Benefi ts and Supplemental Securi ty I ncome. See 20 C.F.R. §§ 404.1520, 416.920. The ALJ c oncluded that Cart er had notwork ed since hi s alleged onset date (step 1); hi s major depr essi ve dis or der and abuse of alc ohol and cocaine i n remis si on were sever e i mpai rments, but he di d not show that he had those im pai rmentsNo. 13-2755 Page 4

before his date last in sured (step 2); hi s i mpai rments or combinati on of im pai rments 2 di d not meet o r equal a li sted i mpai rment (step 3); he di d not have any past relev ant work, but had the resi dual fu ncti onal capaci ty t o wor k at all ex ert i onal levels wi th some li mi tations (that he perform si mple, routine, repetiti ve t asks; make si mple deci si ons; i nteract o nly superfi ci ally wi th cowork ers and sup erv i sors but not wi th the publi c; and exper i ence only minor changes i n routine) ( step 4); and s ui table jo bs w ere av ai lable in the national economy, inclu di ng work as a machine feeder and fastener (step 5). In addressing step 4, the ALJ di scredi ted Car ter ’s allegations of di sabling li mi tations, poin tin g outthat Car ter was ab le to wor k for several mont hs as a constructi on laborer unti l being fi red for non-medi cal reasons; he w as able to part i ci pate inthe hearing closely and fu lly wi thout being di stracted; he had been malingering, in the opin i on of tr eating ps ychi atr i sts; and h i s symptoms h ad si gni fi cantly i mprov ed wi th ro uti ne and conservat i ve t reat ment.
After the Appeals Counci l deni ed rev i ew, Carter sought j udi ci al rev i ew, 42 U.S.C. §§ 405(g ), 1383(c )(3) , arg uing that t he ALJ erre d at step 2 by fi nding hi m not di sabled b efore his date last in sured. Carte r asserted t hat the r ecord contained nearly 200 pages of medi cal evi dence and that the ALJ fai led to consi der submi ssi ons from ei ther t he state-examin i ng psychologis t or a pris on counselor corr obor atin g that he was depressed.
The di stric t court upheld the ALJ’s d eci si on. The ALJ di d not er r atstep 2, the court det ermin ed, becau se the only r ecord ev i dence predatin g Car ter ’s date last i nsu red showed that—despi te his hi stor y of mental-health i ssu es—he had b een found to be malingering and fi t to stand trial. Further, neither the psycholog i st’s repor t nor the couns elor ‘s submi ssi on (whi ch w as not partof the admi ni strat i ve r ecord) suggested that Car ter had di sabling li mi tations or ot herwi se und ermin ed the ALJ’s conclu si on that Cart er was not dis abled.
Cart er main tain s on appeal that the ALJ er red atstep 2 i n finding that t he evidenc e predat i ng hi s date last i nsu red did n ot show that he was di sabled. In one of hi s appellate brief s, he attaches newdocuments—h ospi tal-di sch arg e sum mari es and a psychi atr i c evaluati on—showing that in 1985, 1988, and 1994 h e was di agnosed wi th

Thi s finding render ed hi m ineli gib le for Di sabi li ty I nsu rance Benefi ts but not 2 Supplemental Security Income, whi ch i s avai lable to people with di sabi li tieswho have low i ncome and few ass ets, reg ardless of thei r wor k hi stor y or i nsu red stat us. See 42 U.S.C. § 1382(a).No. 13-2755 Page 5

bi polar dis oder , halluc i nosi s, schi zoaffecti ve dis or der, and schi zophrenia. Bu t we wi ll not r eview evi dence that was n ot befor e the ALJ. See 42 U.S.C. § 405(g ); Rice v. Barnhart, 384 F.3d 363, 366 n.2 (7th Ci r. 2004). As the di stric t courtfound, the only re cord evidenc e predat i ng Cart er’s date last ins ured was m edi cal repor ts confi rmi ng hi s fi tness to stand t rial. Although those repo rt s als o r eflect Carte r’s di agnoses of sub stance dependency and an tis oci al personali ty disorder, t hey do not suggest that t hose i mpai rments were dis abling. Substantialevidenc e thus su pport s the ALJ’s deter minati on that C art er isnot ent i tled to Di sabi li ty I nsu rance Benefi ts. See 42 U.S.C. § 416(I).
Cart er nex t ar gues, for the first ti me on appeal, that the A LJ’s c redib i li ty deter minati on was flawed bec ause the ALJ us ed “boi lerplate” t hat we have re peatedly cri tic i zed: “[T] he clai mant’s statements concerning the intens i ty, per si stence and li mi tin g effects of these symptoms are not credible to the ex tent t hey are inconsi stent wi th the abov e resid ual fu ncti onal capaci ty assessm ent.” See, e.g., Bjorn son v. Astrue, 671 F.3d 640, 644–46 (7th Cir. 2012); Mart inez v. Astrue, 630 F.3d 693, 694 (7th Cir. 2011); Parker v. Ast rue, 597 F.3d 920, 921–22 (7th Cir. 2010). Bu t this boi lerplate do es not necess arily und ercut the ALJ’s deci si on; we wi ll uphold the ALJ’s c redib i li ty deter minati on i f the ALJ prov i ded spec i fi c and legi tim ate r easons for di scredi tin g the clai mant’s testi mony. See F ilus v. Astrue, 694 F.3d 863, 868 (7th Cir. 2012). The ALJ here di sbeli eved Car ter ’s testim ony for a numb er o f legi tim ate r easons, inclu ding the repeat ed opin i ons of psychi atr i sts that Cart er was malingering; Cart er’s demeanor at the video hearing; and Carter ’s request to a doctor —two months after apply i ng for So ci al Security benefi ts—seeki ng medi cal verifi cati on that he was “mentally cleared to work .” See Bates v. Colvin , 736 F.3d 1093, 1098 (7th Cir. 2013) ( demeanor); Powers v. Apfel , 207 F.3d 431, 435–36 (7th Cir. 2000) ( same)

. Fin ally, Cart er has fi led a motion to supplem ent the r ecord wi th a document from the Co ok C ounty Depart ment of Cor rections verif yin g that, contrar y to hi s testim ony t hat he work ed i n 2007, he was i n fac t in carcerated atthat t i me and thus unabl e to have wor ked. But again, w e wi ll not r eview evi dence that was n ot befor e the ALJ. See 42 U.S.C. § 405(g ); Rice , 384 F.3d at 366 n.2. Thus, w e DENYCart er’s mot i on to supp lement the re cord.
We have r eviewed Carter’ s remaining contentions, and none has meri t. AFFIRMED

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