UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

LAFAYETTE DIVISION 

KEVIN J. LOVELESS, 

 

 Plaintiff, 

 v. Case No. 4:14-cv-36-JVB-PRC 

CAROLYN W. COLVIN, 

Acting Commissioner of 

Social Security Administration, 

 

 Defendant. 

OPINION AND ORDER 

 Plaintiff Kevin Loveless seeks judicial review of the Defendant Commissioner of Social 

Security’s decision to deny him disability insurance benefits, and asks this Court to remand the 

case to the agency for reconsideration. On February 22, 2013, Administrative Law Judge Mario 

Silva denied Plaintiff benefits, and that decision became the final decision of the Commissioner 

when the Social Security Appeals Council denied Plaintiff’s request to review it. 

 For the reasons discussed below, the Commissioner’s decision is AFFIRMED. 

A. Overview of the Case

 Plaintiff alleges that he became disabled in January 2011, at the age of 51, after tearing 

the rotator cuff in his right shoulder while lifting heavy objects at work. He underwent an 

arthroscopic repair procedure in February 2011, performed by Peter Torok, M.D. In September 

2011, Dr. Torok released Plaintiff to full time work with weight lifting restrictions, and in 

January 2012 he filled out a physical capabilities evaluation with the same restrictions. Plaintiff’s 

primary care physician, J.P. Cusack, M.D., provided a medical assessment in January 2013, with 
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much more restrictive weight lifting limitations and additional postural limitations. These 

assessments are at the heart of Plaintiff’s case, and the Court addresses other relevant facts in the 

analysis below. 

B. Standard of Review 

This Court has the authority to review Social Security Act claim decisions under 42 

U.S.C. § 405(g). The Court will uphold an ALJ’s decision if it is reached under the correct legal 

standard and supported by substantial evidence. Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 

351 (7th Cir. 2005). Substantial evidence consists of “such relevant evidence as a reasonable 

mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 

401 (1971). This Court will not reconsider facts, re-weigh the evidence, resolve conflicts in the 

evidence, decide questions of credibility, or substitute its judgment for that of the ALJ. Boiles v. 

Barnhart, 395 F.3d 421, 425 (7th Cir. 2005). This Court will, however, ensure that the ALJ built 

an “accurate and logical bridge from the evidence to his conclusion so that, as a reviewing court, 

we may access the validity of the agency’s ultimate findings and afford a claimant meaningful 

judicial review.” Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002). 

C. Disability Standard 

To qualify for disability benefits, the claimant must establish that she suffers from a 

disability. A disability is an “inability to engage in any substantial gainful activity by reason of 

any medically determinable physical or mental impairment which can be expected to result in 

death or which has lasted or can be expected to last for a continuous period of not less than 12 
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months.” 42 U.S.C. § 423(d)(1)(A). The SSA established a five-step inquiry to evaluate whether 

a claimant qualifies for disability benefits. A successful claimant must show: 

(1) he is not presently employed; (2) his impairment is severe; (3) his impairment 

is listed or equal to a listing in 20 C.F.R. § 404, Subpart P, Appendix 1; (4) he is 

not able to perform his past relevant work; and (5) he is unable to perform any 

other work within the national and local economy. 

Scheck v. Barnhart, 357 F.3d 697, 699–700 (7th Cir. 2004). 

 An affirmative answer leads either to the next step or, on steps three and five, to a finding 

that the claimant is disabled. Zurawski v. Halter, 245 F.3d 881, 886 (7th Cir. 2001). A negative 

answer at any point other than step three stops the inquiry and leads to a finding that the claimant 

is not disabled. Id. The burden of proof lies with the claimant at every step except the fifth, 

where it shifts to the Commissioner. Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000). 

D. Analysis 

Plaintiff’s arguments are as follows: whether the ALJ gave appropriate weight to the 

opinions of treating physicians; whether the ALJ impermissibly reasoned backwards from 

agency boilerplate; whether the ALJ properly weighed Plaintiff’s credibility concerning the 

limiting effects of his symptoms; and whether the ALJ included limitations related to the 

combination of severe and non-severe impairments. 

(1) ALJ did not err in assigning weight to treating physician opinions

 Plaintiff argues that the ALJ should have given controlling weight to the opinion of 

treating physician Dr. Cusack, and the ALJ committed an error of law by failing to give “good 

reasons” for discounting Dr. Cusack’s opinion. 

 The agency typically gives a treating physician’s opinion controlling weight if it is well-
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supported by medically acceptable evidence and it is not inconsistent with other substantial 

evidence in the record. 20 C.F.R. § 404.1527(c)(2). And the agency will always give “good 

reasons” for the weight afforded to a treating sources opinion. Id. If a treating source is not given 

controlling weight, then the agency uses a multi-factor assessment that includes: the examining 

relationship; the length, nature, and extent of the treatment relationship; supportability; 

consistency; and specialization. Id. at (c)(1)–(5). 

 The ALJ in this case gave Dr. Cusack’s January 2013 medical opinion little weight. The 

ALJ found that this opinion was unsupported by the evidence of record; specifically, that Dr. 

Cusack stated Plaintiff was unable to carry more than five pounds but the record evidence 

showed that claimant had been able to lift “well over five pounds since 2011” and that there was 

no indication in the medical evidence that Plaintiff was as limited as Dr. Cusack claimed in the 

use of his hands or his tolerance of chemical or noise exposure. R. at 24. Because the ALJ found 

that the medical opinion was unsupported he was not required to afford it controlling weight. 

 Moreover, Plaintiff does not point to any medical evidence that the ALJ missed that 

might support Dr. Cusack’s opinion regarding Plaintiff’s ability to sit, stand, and walk. All the 

evidence Plaintiff presents from Dr. Cusack are the records of Plaintiff’s symptoms, not records 

of observable facts or diagnostic tests. See 20 C.F.R. § 404.1528(a) (“Symptoms are your own 

description of your physical or mental impairment. Your statements alone are not enough to 

establish that there is a physical or mental impairment.”). Merely writing down a patient’s 

symptoms does not transform those symptoms into observable facts. The symptom must be 

manifested in some way, either through direct observation (“signs”) or medical tests (“laboratory 

findings”). See 20 C.F.R § 404.1528(b) (signs) & (c) (laboratory findings). 
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(2) ALJ’s agency boilerplate adequately supported with analysis

 Plaintiff argues that the case should be remanded because the ALJ employed forbidden 

boilerplate in making the credibility determination. Plaintiff is correct that the Seventh Circuit 

prohibits backward reasoning by ALJs and that boilerplate is disfavored. However, boilerplate 

supported with adequate analysis of the evidence is fine. See Pepper v. Colvin, 712 F.3d 351, 

368–69 (7th Cir. 2013) (“[T]he simple fact that an ALJ used boilerplate language does not 

automatically undermine or discredit the ALJ’s ultimate conclusion if he otherwise points to 

information that justifies his credibility determination.”). 

 The ALJ in this case adequately supported the boilerplate language with analysis 

grounded in evidence. The ALJ considered Plaintiff’s testimony, discussed his ability to 

“perform a considerable number of activities of daily living,” and then proceeded to evaluate the 

testimony in light of the treatment he sought and received for his symptoms. R. at 25. As the 

Court discusses next, this analysis was more than adequate to justify the ALJ’s credibility 

determination. See Pepper, 712 F.3d at 367–68. 

(3) Credibility determination not patently wrong

 Plaintiff contends that the ALJ improperly weighed his credibility by overemphasizing 

his activities of daily living, and for not giving any weight to his strong work history. ALJ 

credibility determinations are entitled to deference because the ALJ is “in a special position to 

hear, see, and assess witnesses.” Murphy v. Colvin, 759 F.3d 811, 815 (7th Cir. 2014). Courts 

only overturn such a credibility determination if is patently wrong, that is to say, if it lacks any 

explanation or support. Id. at 816. A credibility determination will be upheld as long as it is 

explained in a way that allows the court to determine that the ALJ logically based it on specific 
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findings and record evidence. Id. In this case, the ALJ provided a logical explanation for the 

credibility determination. 

 The ALJ relied in part upon Plaintiff’s ability to perform daily activities to discredit him. 

Plaintiff objects to the ALJ using his activities of daily living to find that he is capable of fulltime employment. However, that is not what the ALJ did. The ALJ considered that Plaintiff’s 

ability to regularly perform “a considerable number of activities of daily living” weighed against 

the credibility of his allegations that his impairments made him unable to work. R. at 25. The 

ALJ even stated that his ability to perform daily activities on a regular basis was “not conclusive 

proof that he is able to sustain full-time work.” Id. This was not an improper consideration of 

Plaintiff’s activities of daily living, and was grounded in the evidence. 

 In addition, the ALJ discredited Plaintiff’s claim that his impairments were disabling 

because he received only routine and conservative treatment for his right shoulder and his 

diabetes since 2011, and received no treatment for his left shoulder. Moreover, the ALJ wrote 

that Plaintiff testified that physical therapy helped alleviate pain and increase the range of motion 

in his right shoulder weighing against the testimony that he was unable to work. Id.

 Plaintiff asserts that the ALJ should have given his statements about the disabling effects 

of his symptoms more weight because he had a “strong work history.” As the Commissioner 

points out in her Response, Plaintiff only cites to cases outside the Seventh Circuit for direct 

support. The lack of precedent in this circuit is not dispositive, but there is no requirement to 

give “substantial credibility” to a disability claimant with a good work record. 

 The ALJ mentioned this factor, but did not assess the weight to afford it in his discussion. 

A claimant’s prior work record is just one factor that may be considered in evaluating his 

credibility. 20 C.F.R. § 404.1529(c)(3); SSR 97-6p. Another court in this district stated that a 
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“claimant with a good work record is entitled to substantial credibility” but that was in the 

context of an ALJ using a claimant’s “‘can do’ attitude” to discredit his testimony. Springer v. 

Colvin, No. 1:13-cv-185, 2014 WL 3075342 at *8 (N.D. Ind. July 2, 2014). This case is 

distinguishable from Springer because the ALJ did not use Plaintiff’s good work history against 

him. And, the ALJ was not required to single out Plaintiff’s work history in assessing his 

credibility, so the “failure” to do so is not an error requiring remand. 

(4) Combination of impairments

 Plaintiff’s last argument for why the case should be remanded is that the ALJ failed to 

account for his diabetes mellitus and hand impairments in the RFC determination. He refers to 

the requirement to consider the cumulative effects of severe and non-severe impairments. The 

ALJ failed to meet this requirement, Plaintiff says, because he did not account for the effect of 

his diabetes on the ability to maintain a fulltime job without excessive absenteeism. 

 He asserts that his diabetes was uncontrolled because of his fluctuating glucose levels, his 

need to recline or nap, and his balancing problems. However, Plaintiff doesn’t provide evidence 

that any functional limitations are a result of his diabetes, and it is his burden to prove that he is 

disabled. 20 C.F.R. § 404.1512(a). And his attribution of diabetes as the cause of his falls is not 

substantiated by any medical evidence. In any event, the ALJ provided for restrictions of no 

more than occasional balancing, no uneven work surfaces, no slippery surfaces, and to avoid all 

exposure to unprotected heights. R. at 22. It was not reversible error to not include any further 

limitations related to diabetes. 

 Plaintiff also alleges that the ALJ didn’t account for joint swelling in his fingers and 

hands. There is medical evidence of this impairment dated May 2007, two years before his first 
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shoulder surgery. But there is no other evidence in the record of this impairment, and therefore it 

was not error for the ALJ to not include further limitations on Plaintiff’s ability to do gross 

manipulation or his ability to finger with his right hand. 

SO ORDERED on April 10, 2015. 

 S/ Joseph S. Van Bokkelen 

 JOSEPH S. VAN BOKKELEN 

 UNITED STATES DISTRICT JUDGE