UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

FORT WAYNE DIVISION 

TINA L. SMULLEN, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) Case No. 1:15-cv-187 

 ) 

CAROLYN W. COLVIN, ) 

Acting Commissioner of Social Security, ) 

 ) 

 Defendant. ) 

OPINION AND ORDER 

 This matter is before the court on the petition for judicial review of the decision of the 

Commissioner filed by the plaintiff, Tina L. Smullen, on July 23, 2015.1

 For the following 

reasons, the decision of the Commissioner is AFFIRMED. 

Background 

 The plaintiff, Tina L. Smullen, filed an application for Supplemental Security Income on 

January 25, 2013, alleging a disability onset date of November 25, 2012. (Tr. 23). The 

Disability Determination Bureau denied Smullen’s application on April 8, 2013, and again upon 

reconsideration on June 19, 2013. (Tr. 23). Smullen subsequently filed a timely request for a 

hearing on August 15, 2013. (Tr. 23). A hearing was held on June 26, 2014, before 

Administrative Law Judge (ALJ) William D. Pierson, and the ALJ issued an unfavorable 

decision on September 20, 2014. (Tr. 23–37). Vocational Expert (VE) Marie N. Kieffer and 

 1

 On December 7, 2015, this case was reassigned to Magistrate Judge Susan L. Collins upon the parties’ 

consent under 28 U.S.C. § 636(c), and then was reassigned to Magistrate Judge Andrew P. Rodovich. On August 5, 

2016, the court ordered the parties to file any objection to Magistrate Judge Rodovich conducting all further 

proceedings in this case. Because neither party filed an objection, this court finds that the parties voluntarily consent 

to Magistrate Judge Rodovich under 28 U.S.C. § 636(c). 
2 

Smullen testified at the hearing. (Tr. 23). The Appeals Council denied review, making the 

ALJ’s decision the final decision of the Commissioner. (Tr. 9–12). 

 At step one of the five step sequential analysis for determining whether an individual is 

disabled, the ALJ found that Smullen had not engaged in substantial gainful activity since 

November 25, 2012, the alleged onset date. (Tr. 26). At step two, the ALJ determined that 

Smullen had the following severe impairments: obesity; minimal to mild left heel spurs; mild 

degenerative knee changes; mild degenerative disc disease of the cervical and lumbar spines; 

diabetes mellitus with neuropathy; asthma; bilateral hearing loss; and borderline intellectual 

functioning. (Tr. 26). At step three, the ALJ concluded that Smullen did not have an impairment 

or combination of impairments that met or medically equaled the severity of one of the listed 

impairments. (Tr. 26). Specifically, he found that Smullen did not meet any of the following: 

Listing 1.02, major joint dysfunction; Listing 1.04, spine disorders; Listing 2.10, hearing loss 

without cochlear implantation; Listing 3.02, chronic pulmonary insufficiency; Listing 3.03, 

asthma; Listing 11.14, peripheral neuropathies; and Listing 12.02, organic mental disorders. (Tr. 

27–28). 

 When determining whether Smullen met Listing 12.02, the ALJ considered the Paragraph 

B criteria. (Tr. 28–29). He indicated that Smullen’s mental impairment would satisfy the 

Paragraph B criteria if it resulted in at least two marked restrictions or one marked restriction and 

repeated, extended episodes of decompensation. (Tr. 28). The ALJ found that Smullen had no 

limitations in daily living activities because she reported only physical difficulties with hygiene, 

cooking, cleaning, shopping, and handling money. (Tr. 28). He also found that Smullen had not 

established any social functioning limitations that would last at least twelve months. (Tr. 28). In 

March 2013, Smullen reported that she had no problems relating to family, friends, or neighbors, 
3 

that she talked to her family daily, that she visited her children and grandchildren frequently, that 

she got along with authority figures, and that she had not lost any jobs due to an inability to get 

along with others. (Tr. 28). However, Smullen did testify that she took medication for mood 

swings, which had caused problems for years. (Tr. 28–29). She also testified that her 

medication helped her mood swings and that her treating physician did not recommend mental 

health counseling. (Tr. 29). The ALJ noted that Smullen did not allege mood swings in her 

Function Report, and that Dr. Tallon did not find that Smullen’s mood swings would affect her 

ability to work. (Tr. 29). 

 The ALJ found that Smullen had moderate difficulties in concentration, persistence, or 

pace. (Tr. 29). He noted that Smullen had borderline intellectual functioning, which could affect 

her concentration, persistence, or pace. (Tr. 29). However, Smullen testified that she had no 

difficulty with basic reading or writing and that she could follow written and verbal instructions. 

(Tr. 29). Additionally, the consultative psychologist indicated that Smullen could handle her 

own finances and complete her daily living activities. (Tr. 29). The ALJ concluded that Smullen 

had not experienced any extended episodes of decompensation. (Tr. 29). The ALJ determined 

that Smullen did not satisfy the Paragraph B criteria because she did not have two marked 

limitations or one marked limitation and repeated episodes of decompensation. (Tr. 29). The 

ALJ also found that Smullen did not satisfy the Paragraph C criteria. (Tr. 29). 

 The ALJ then assessed Smullen’s residual functional capacity (RFC) as follows: 

the claimant has the residual functional capacity to perform 

sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) 

except she can sit 6 hours out of an 8-hour workday; can stand and/or 

walk 2 hours out of an 8-hour workday; can lift, carry, push, and 

pull 10 pounds frequently and occasionally; can occasionally kneel, 

crouch, crawl, balance and squat; can do no overhead work activity 

or overhead reaching; cannot perform work in an environment 

involving more than a moderate level of noise; is not limited in fine 
4 

and gross manipulation; cannot climb ladders, ropes, and scaffolds; 

can occasionally use stairs and ramps, but no more than 1 to 2 flights 

with handrails; can occasionally bend and stoop; cannot work within 

close proximity to hazards of open heights or hazardous machinery 

or wet surfaces; cannot perform work requiring frequent exposure 

to airborne particulates such as dusts, gases and fumes; must avoid 

extreme humidity, heat, and cold; is limited to simple, routine and 

repetitive tasks, and is able to remember simple work-like 

procedures and maintain the concentration required to perform 

simple tasks; and is limited to basic reading skills such as those 

required to read lists and address labels. 

(Tr. 30). The ALJ explained that in considering Smullen’s symptoms he followed a two-step 

process. (Tr. 30). First, he determined whether there was an underlying medically determinable 

physical or mental impairment that was shown by a medically acceptable clinical or laboratory 

diagnostic technique that reasonably could be expected to produce Smullen’s pain or other 

symptoms. (Tr. 30). Then, he evaluated the intensity, persistence, and limiting effects of the 

symptoms to determine the extent to which they limited Smullen’s functioning. (Tr. 30). The 

ALJ found that Smullen’s impairments could cause her alleged symptoms, but that she was not 

entirely credible regarding the intensity, persistence, and limiting effects of the symptoms. (Tr. 

30–31). 

 Smullen testified that she could go out alone and drive to Wal-Mart and her daughter’s 

home, which were nearby, but that she avoided going to places with a large number of people. 

(Tr. 31). However, the ALJ indicated that no medical evidence showed an impairment that 

would cause any fear or difficulty in crowds. (Tr. 31). Smullen reported that she had no 

difficulty with basic reading and writing or following instructions, but she also stated that she 

took special education classes in school and that she had a bad memory. (Tr. 31). Considering 

her testimony, the ALJ concluded that any memory issues would not preclude simple, routine, 

and repetitive tasks. (Tr. 31). 
5 

 Smullen reported hearing loss that made it difficult for her to understand what people 

were saying. (Tr. 31). She admitted that hearing aids could improve this, but she stated that she 

could not afford them. (Tr. 31). However, the ALJ and the consultative examiner did not notice 

any hearing issues during their interactions with Smullen. (Tr. 31). During the hearing, the ALJ 

asked Smullen whether her insurance would cover the costs of hearing aids. (Tr. 31). Dr. 

Bacchus found hearing loss, but he concluded that she could recognize words 84% on her left 

and 96% on her right. (Tr. 31). 

 Smullen claimed that she could not work because she had problems sitting, standing, and 

walking due to foot pain and numbness. (Tr. 31). She testified that walking caused back and 

neck pain, which occasionally radiated to her hips and buttocks or into her left shoulder 

respectively, that she could walk twenty to thirty minutes, and that she could sit for thirty to 

forty-five minutes in certain chairs. (Tr. 31). Smullen reported that she cared for her six 

grandchildren during the summer for three to four hours a day. (Tr. 32). Despite claiming that 

she had difficulty using her left arm above her head, the consultative physician did not find any 

neck or shoulder restrictions. (Tr. 32). 

 The ALJ noted that Smullen claimed her walking difficulties started in March or May 

2013, which was after her alleged onset date, that her diabetic medications helped her symptoms, 

that she did not follow her diet, that her blood sugar levels were normal, that she did not have 

significant feet ulcers, and that her podiatrist provided only inserts. (Tr. 32). Additionally, the 

ALJ indicated that Smullen alleged neck pain beginning in December 2013, which was after her 

alleged onset date, that she claimed to use a cane but did not have a prescription, that Smullen 

did not complain of left heel spurring at the hearing, and that she used only over the counter 
6 

analgesics. (Tr. 32). The ALJ stated that the above findings did not bolster Smullen’s 

allegations of disabling limitations or her credibility. (Tr. 32). 

 The ALJ then reviewed Smullen’s medical records from Matthew 25 Clinic during 2011 

and 2012. (Tr. 32). He indicated that the records did not show ongoing retinopathy, significant 

neuropathy, significant atrophy from crepitus, hip dysfunction, knee issues, diabetes mellitus, 

hypertension, or heel spurring, or an unstable thyroid function. (Tr. 32). Considering the 

medical examination summary and the Matthew 25 Clinic records, the ALJ found that the 

records did not support allegations with greater limitations than those reflected in the RFC. (Tr. 

32). Dr. Bacchus found some limitations, but he did not find any atrophy. (Tr. 32). He noted 

that Smullen had a normal, steady gait, that she did not use an assistive device, that she could 

hear conversational speech, and that she did not have joint swelling or instability. (Tr. 32–33). 

Dr. Bacchus concluded that Smullen could perform light to moderate duties while standing three 

to four hours non-continuously, which the ALJ found supported his RFC finding. (Tr. 32–33). 

 Smullen testified that her primary care physician, Dr. Teresa Tallon, prescribed 

medication that improved her mood swings. (Tr. 33). Despite testifying that she had mood 

swings for years, Smullen only recently sought medication. (Tr. 33). Smullen stated that she got 

along with other people and that Dr. Tallon did not suggest mental health counseling. (Tr. 33). 

The ALJ did not give significant weight to Dr. Tallon’s conclusion that Smullen was disabled 

due to neck and back pain, diabetes, and diabetic neuropathy. (Tr. 33). Additionally, Dr. Tallon 

found that Smullen had limitations regarding her abilities to stoop, balance, perform fine finger 

tasks, and reach in any direction. (Tr. 33). 

 The ALJ stated that the Matthew 25 Clinic medical records and Dr. Bacchus’s 

examination notes did not support Dr. Tallon’s findings. (Tr. 33). Additionally, he found that 
7 

Dr. Tallon’s notes did not show objective medical findings that supported her restrictions, such 

as atrophy, loss of reflexes, or decreased sensation. (Tr. 33). The ALJ also noted that diagnostic 

test results revealed mild, unremarkable results that did not support significant limitations. (Tr. 

33–34). He explained that Smullen did not testify that she needed a cane, despite Dr. Tallon 

finding that she required a cane to walk most of the time. (Tr. 34). Furthermore, the ALJ 

indicated that Dr. Tallon did not explain how many hours Smullen could stand or work during an 

eight-hour work day, that she did not explain why Smullen’s back issues prevented her from 

working even with medication, and that she did not show what medical evidence supported her 

sight, movement, and hearing limitations. (Tr. 34). Therefore, the ALJ gave Dr. Tallon’s 

findings limited weight because she relied on Smullen’s subjective complaints and the record did 

not support her findings. (Tr. 34). 

 The ALJ found that the medical records did not support Smullen’s complaints of 

insomnia, frequent bathroom breaks, severe edema, or the need for a cane. (Tr. 34). 

Additionally, he found that the record did not show that Smullen’s medications caused 

significant functional limitations that lasted for twelve months or that medication dosage or type 

changes could not accommodate. (Tr. 34). Because the record did not support those allegations, 

the ALJ stated that Smullen was less credible. (Tr. 34). However, the ALJ limited Smullen to 

sedentary work due to her foot pain and lifting restrictions, he limited Smullen’s postural 

maneuvers due to her neck and back pain, and he limited her access to airborne particles and 

excessive noise levels to accommodate her hearing and asthma problems. (Tr. 34). 

 The consultative physician found that Smullen could perform light to moderate work 

while avoiding hazards, and the State agency medical reviewer found that she could perform 

light work with postural and environmental limitations. (Tr. 35). The ALJ gave those opinions 
8 

significant weight because they were consistent with the medical evidence and the ALJ’s RFC 

finding. (Tr. 35). However, the ALJ did provide greater restrictions to account for Smullen’s 

foot pain. (Tr. 35). The State agency psychological consultant found that Smullen could handle 

semi-skilled work that included only superficial interaction with others. (Tr. 35). The ALJ 

discounted that opinion because Smullen had few, if any, social limitations and she did not have 

a history of semi-skilled work. (Tr. 35). The ALJ gave some weight to the agency’s conclusion 

that Smullen had moderate concentration, persistence, or pace limitations because it was 

consistent with his findings. (Tr. 35). Additionally, the ALJ found that Smullen’s report of her 

daily living activities did not contradict the RFC when considering that the record did not 

support her credibility. (Tr. 35). 

 At step four, the ALJ found that Smullen could not perform her past relevant work. (Tr. 

35). Considering Smullen’s age, education, work experience, and RFC, the ALJ concluded that 

there were jobs in the national economy that she could perform, including addresser (200 jobs in 

Indiana and 38,000 jobs nationally), surveillance systems monitor (200 jobs in Indiana and 

15,500 jobs nationally), and document preparer (16,000 jobs in Indiana and 790,000 jobs 

nationally). (Tr. 35–36). 

Discussion 

 The standard for judicial review of an ALJ’s finding that a claimant is not disabled within 

the meaning of the Social Security Act is limited to a determination of whether those findings are 

supported by substantial evidence. 42 U.S.C. § 405(g) (“The findings of the Commissioner of 

Social Security, as to any fact, if supported by substantial evidence, shall be conclusive.”); 

Moore v. Colvin, 743 F.3d 1118, 1120–21 (7th Cir. 2014); Bates v. Colvin, 736 F.3d 1093, 1097 

(7th Cir. 2013) (“We will uphold the Commissioner’s final decision if the ALJ applied the 
9 

correct legal standards and supported her decision with substantial evidence.”); Pepper v. Colvin, 

712 F.3d 351, 361–62 (7th Cir. 2013); Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005); 

Lopez ex rel Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003). Substantial evidence has 

been defined as “such relevant evidence as a reasonable mind might accept to support such a 

conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 852 

(1972) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 217, 83 L. Ed. 

2d 140 (1938)); see Bates, 736 F.3d at 1098; Pepper, 712 F.3d at 361–62; Jens v. Barnhart, 347 

F.3d 209, 212 (7th Cir. 2003); Sims v. Barnhart, 309 F.3d 424, 428 (7th Cir. 2002). An ALJ’s 

decision must be affirmed if the findings are supported by substantial evidence and if there have 

been no errors of law. Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013); Rice v. Barnhart, 

384 F.3d 363, 368–69 (7th Cir. 2004); Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir. 2002). 

However, “the decision cannot stand if it lacks evidentiary support or an adequate discussion of 

the issues.” Lopez, 336 F.3d at 539. 

 Supplemental insurance benefits are available only to those individuals who can establish 

“disability” under the terms of the Social Security Act. The claimant must show that she is 

unable “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 months.” 42 U.S.C. 

§ 423(d)(1)(A). The Social Security regulations enumerate the five-step sequential evaluation to 

be followed when determining whether a claimant has met the burden of establishing disability. 

20 C.F.R. § 416.920. The ALJ first considers whether the claimant is presently employed or 

“engaged in substantial gainful activity.” 20 C.F.R. § 416.920(b). If she is, the claimant is not 

disabled and the evaluation process is over. If she is not, the ALJ next addresses whether the 
10 

claimant has a severe impairment or combination of impairments that “significantly 

limits . . . physical or mental ability to do basic work activities.” 20 C.F.R. § 416.920(c); see 

Williams v. Colvin, 757 F.3d 610, 613 (7th Cir. 2014) (discussing that the ALJ must consider the 

combined effects of the claimant’s impairments). Third, the ALJ determines whether that severe 

impairment meets any of the impairments listed in the regulations. 20 C.F.R. § 401, pt. 404, 

subpt. P, app. 1. If it does, then the impairment is acknowledged by the Commissioner to be 

conclusively disabling. However, if the impairment does not so limit the claimant’s remaining 

capabilities, the ALJ reviews the claimant’s “residual functional capacity” and the physical and 

mental demands of her past work. If, at this fourth step, the claimant can perform her past 

relevant work, she will be found not disabled. 20 C.F.R. § 416.920(e). However, if the claimant 

shows that her impairment is so severe that she is unable to engage in her past relevant work, 

then the burden of proof shifts to the Commissioner to establish that the claimant, in light of her 

age, education, job experience, and functional capacity to work, is capable of performing other 

work and that such work exists in the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. § 

416.920(f). 

 First, Smullen has argued that the ALJ failed to consider whether her mood swings were 

a medically determinable impairment at step two. At step two, the claimant has the burden to 

establish that she has a severe impairment. Castile v. Astrue, 617 F.3d 923, 926 (7th Cir. 2010). 

A severe impairment is an “impairment or combination of impairments which significantly limits 

[one’s] physical or mental ability to do basic work activities.” 20 C.F.R. §§ 404.1520(c), 

404.1521(a); Castile, 617 F.3d at 926. Basic work activities include “the abilities and aptitudes 

necessary to do most jobs,” such as “walking, standing, sitting, lifting, pushing, pulling, 

reaching, carrying, or handling.” 20 C.F.R. § 404.1521(b); Stopka v. Astrue, 2012 WL 266341, 
11 

at *1 (N.D. Ill. Jan. 26, 2012). “[A]n impairment that is ‘not severe’ must be a slight 

abnormality (or a combination of slight abnormalities) that has no more than a minimal effect on 

the ability to do basic work activities.” Social Security Ruling 96-3p, 1996 WL 374181, at *1. 

Courts have characterized step two as a de minimis screening device that disposes of groundless 

claims. Johnson v. Sullivan, 922 F.2d 346, 347 (7th Cir. 1990); Elkins v. Astrue, 2009 WL 

1124963, at *8 (S.D. Ind. April 24, 2009) (citing Webb v. Barnhart, 433 F.3d 683, 688 (9th Cir. 

2005)); see Stopka, 2012 WL 266341 at *1 (listing cases supporting same). 

 Smullen has claimed that the ALJ failed to explain why her mood swings were not a 

medically determinable impairment and that he ignored lines of evidence supporting Smullen’s 

mood swings. However, the ALJ addressed Smullen’s mood swings when evaluating her mental 

impairments under the Paragraph B criteria. (Tr. 28–29). He found that Smullen did not have a 

limitation in social functioning and noted that Smullen did not have problems relating to family, 

friends, or neighbors, that she talked with her family every day, that she visited her daughter and 

grandchildren frequently, and that she got along with authority figures. (Tr. 28). Additionally, 

the ALJ reviewed Smullen’s testimony that she had problems with mood swings for years that 

had worsened recently. (Tr. 29). The ALJ indicated that Smullen started medication that 

improved her mood swings, that Dr. Tallon, her treating physician, did not suggest mental health 

counseling or find that Smullen’s mood swings would affect her work-related abilities, and that 

Smullen did not allege mood swings in her function report. (Tr. 29). Therefore, the ALJ 

concluded that there was “no persuasive medical evidence that [Smullen’s] mood swings ha[d] 

existed, and imposed significant limitations of function, for at least 12 months or [we]re expected 

to exist for 12 months.” (Tr. 29). 
12 

 Despite Smullen’s complaint that the ALJ discussed her mood swings at step three rather 

than step two, “it is proper to read the ALJ’s decision as a whole . . . because it would be a 

needless formality to have the ALJ repeat substantially similar factual analyses at both 

steps . . . .” Rice v. Barnhart, 384 F.3d 363, n.5 (7th Cir. 2004). During his step three analysis, 

the ALJ reviewed the evidence regarding Smullen’s mood swings and explained why they were 

not a medically determinable impairment. (Tr. 29). For example, he indicated that Smullen’s 

medication improved her mood swings and that her treating physician did not recommend mental 

health counseling or find any work limitations caused by her mood swings. (Tr. 29). Although 

Smullen has claimed that the ALJ ignored evidence supporting her mood swings, she has not 

identified any evidence that the ALJ overlooked. Rather, she cited only her testimony at the 

hearing and Dr. Tallon’s diagnosis. (Tr. 573, 659). But, as discussed above, Dr. Tallon did not 

find that her mood swings would affect her ability to work. The ALJ discussed Smullen’s mood 

swings adequately and supported his step two finding with substantial evidence. Moreover, any 

error at step two was harmless. The ALJ found several severe impairments at step two and 

considered the aggregate effect of Smullen’s ailments at step four. See Castile, 617 F.3d at 927. 

 As part of her mood swings argument, Smullen stated briefly that the ALJ did not 

consider Listing 12.04, affective disorders, that the ALJ did not account for her mood swings in 

the RFC, and that the ALJ failed to develop the record regarding her mood swings. Listing 12.04 

requires the claimant to meet both the A and B criteria or the C criteria. 20 C.F.R. § 404, subpt. 

P, app. 1, § 12.04. Paragraph B required at least two marked restrictions or one marked 

restriction and repeated, extended episodes of decompensation. 20 C.F.R. § 404, subpt. P, app. 

1, § 12.04(B). The ALJ found that Smullen’s mental impairments did not cause any marked 

restrictions and that Smullen had not experienced any extended episodes of decompensation. 
13 

(Tr. 28–29). Therefore, he concluded that Smullen did not satisfy the Paragraph B criteria. (Tr. 

29). Paragraph C required a medically documented history of a chronic affective disorder for at 

least two years and one of the following: repeated, extended episodes of decompensation; an 

inability to function outside a highly supportive living arrangement; or a finding that a minimal 

increase in mental demands or an environmental change would cause the claimant to 

decompensate. 20 C.F.R. § 404, subpt. P, app. 1, § 12.04(C). Even if mood swings qualify as 

an affective disorder, the ALJ found that Smullen did not meet any of the other three Paragraph 

C requirements. (Tr. 29). Thus, he found that Smullen did not satisfy the Paragraph C criteria 

either. (Tr. 29). 

 Despite Smullen’s argument, the ALJ considered Smullen’s mood swings in his RFC 

analysis. The ALJ reviewed Smullen’s testimony that her medication improved her mood 

swings and noted that Dr. Tallon did not recommend mental health counseling. (Tr. 33). The 

ALJ did not need to include limitations that he found incredible or without medical support. See 

Simila v. Astrue, 573 F.3d 503, 520–21 (7th Cir. 2009). The ALJ supported his RFC finding 

with substantial evidence by reviewing the medical evidence and indicating that it did not 

support a mood swing impairment. 

 Finally, Smullen has not identified any mood swing evidence that the ALJ failed to 

consider. She stated generally that the ALJ did not consider evidence, but “[m]ere conjecture or 

speculation that additional evidence might have been obtained in the case is insufficient to 

warrant a remand.” Nelms v. Astrue, 553 F.3d 1093, 1098 (7th Cir. 2009) (quoting Binion v. 

Shalala, 13 F.3d 243, 246 (7th Cir. 1994)). Without identifying specific, relevant facts that the 

ALJ overlooked, this issue does not warrant remand. Nelms 553 at 1098 (citations omitted). 
14 

 Next, Smullen has argued that the ALJ’s credibility finding was patently wrong. This 

court will sustain the ALJ’s credibility determination unless it is “patently wrong” and not 

supported by the record. Bates v. Colvin, 736 F.3d 1093, 1098 (7th Cir. 2013); Schmidt v. 

Astrue, 496 F.3d 833, 843 (7th Cir. 2007); Prochaska v. Barnhart, 454 F.3d 731, 738 (7th Cir. 

2006) (“Only if the trier of fact grounds his credibility finding in an observation or argument that 

is unreasonable or unsupported . . . can the finding be reversed.”). The ALJ’s “unique position to 

observe a witness” entitles his opinion to great deference. Nelson v. Apfel, 131 F.3d 1228, 1237 

(7th Cir. 1997); Allord v. Barnhart, 455 F.3d 818, 821 (7th Cir. 2006). However, if the ALJ 

does not make explicit findings and does not explain them “in a way that affords meaningful 

review,” the ALJ’s credibility determination is not entitled to deference. Steele v. Barnhart, 290 

F.3d 936, 942 (7th Cir. 2002). Further, “when such determinations rest on objective factors or 

fundamental implausibilities rather than subjective considerations [such as a claimant’s 

demeanor], appellate courts have greater freedom to review the ALJ’s decision.” Clifford v. 

Apfel, 227 F.3d 863, 872 (7th Cir. 2000); see Bates, 736 F.3d at 1098. 

 The ALJ must determine a claimant’s credibility only after considering all of the 

claimant’s “symptoms, including pain, and the extent to which [the claimant’s] symptoms can 

reasonably be accepted as consistent with the objective medical evidence and other evidence.” 

20 C.F.R. ' 404.1529(a); Arnold v. Barnhart, 473 F.3d 816, 823 (7th Cir. 2007) (“[S]ubjective 

complaints need not be accepted insofar as they clash with other, objective medical evidence in 

the record.”); Scheck v. Barnhart, 357 F.3d 697, 703 (7th Cir. 2004). If the claimant’s 

impairments reasonably could produce the symptoms of which the claimant is complaining, the 

ALJ must evaluate the intensity and persistence of the claimant’s symptoms through 

consideration of the claimant’s “medical history, the medical signs and laboratory findings, and 
15 

statements from [the claimant, the claimant’s] treating or examining physician or psychologist, 

or other persons about how [the claimant’s] symptoms affect [the claimant].” 20 C.F.R. 

' 404.1529(c); see Schmidt v. Barnhart, 395 F.3d 737, 746–47 (7th Cir. 2005) (“These 

regulations and cases, taken together, require an ALJ to articulate specific reasons for 

discounting a claimant’s testimony as being less than credible, and preclude an ALJ from merely 

ignoring the testimony or relying solely on a conflict between the objective medical evidence and 

the claimant’s testimony as a basis for a negative credibility finding.”). 

 Although a claimant’s complaints of pain cannot be totally unsupported by the medical 

evidence, the ALJ may not disregard an individual’s statements about symptoms solely based on 

objective medical evidence. SSR 16-3p, at *52

; see Moore v. Colvin, 743 F.3d 1118, 1125 (7th 

Cir. 2014) (“‘[T]he ALJ cannot reject a claimant’s testimony about limitations on her daily 

activities solely by stating that such testimony is unsupported by the medical evidence.’”) 

(quoting Indoranto, 374 F.3d at 474); Carradine v. Barnhart, 360 F.3d 751, 754 (7th Cir. 2004) 

(“If pain is disabling, the fact that its source is purely psychological does not disentitle the 

applicant to benefits.”). Rather, if the 

[c]laimant indicates that pain is a significant factor of his or her 

alleged inability to work, the ALJ must obtain detailed descriptions 

of the claimant’s daily activities by directing specific inquiries about 

the pain and its effects to the claimant. She must investigate all 

avenues presented that relate to pain, including claimant’s prior 

work record, information and observations by treating physicians, 

examining physicians, and third parties. Factors that must be 

 2

 The Social Security Administration updated its guidance about evaluating a claimant’s symptoms. See SSR 

16-3p, 2016 WL 1119029 (effective March 28, 2016). SSR 16-3p superseded SSR 96-7p and removed the term 

“credibility” from the Administration’s policies. SSR 16-3p at *1. The new policy clarifies that an ALJ should not 

examine a claimant’s character similar to an adversarial proceeding when evaluating the claimant’s subjective 

symptoms. SSR 16-3p at *1. Although SSR 16-3p post-dates the ALJ hearing in this case, a regulation that clarifies 

rather than changes existing law is appropriate on appeal. Pope v. Shalala, 998 F.2d 473, 482–83 (7th Cir. 1993), 

overruled on other grounds by Johnson v. Apfel, 189 F.3d 561 (7th Cir. 1999). Because SSR 16-3p clarifies the 

Administration’s policies, this court will evaluate the ALJ’s findings under the Administration’s new guidance. See 

Roper v. Colvin, 2016 WL 3940035, at *3 (N.D. Ill. July 21, 2016) (finding it appropriate to consider the new 

regulation on appeal). 
16 

considered include the nature and intensity of the claimant’s pain, 

precipitation and aggravating factors, dosage and effectiveness of 

any pain medications, other treatment for relief of pain, functional 

restrictions, and the claimant’s daily activities. (internal citations 

omitted). 

Luna v. Shalala, 22 F.3d 687, 691 (7th Cir. 1994); see Zurawski v. Halter, 245 F.3d 881, 

887-88 (7th Cir. 2001). 

 In addition, when the ALJ discounts the claimant’s description of pain because it is 

inconsistent with the objective medical evidence, he must make more than “a single, conclusory 

statement . . . . The determination or decision must contain specific reasons for the weight given 

to the individual’s symptoms, be consistent with and supported by the evidence, and be clearly 

articulated so the individual and any subsequent reviewer can assess how the adjudicator 

evaluated the individual’s symptoms.” SSR 16-3p, at *9; see Minnick v. Colvin, 775 F.3d 929, 

937 (7th Cir. 2015) (“[A] failure to adequately explain his or her credibility finding by discussing 

specific reasons supported by the record is grounds for reversal.”) (citations omitted); Zurawski, 

245 F.3d at 887; Diaz v. Chater, 55 F.3d 300, 307–08 (7th Cir. 1995) (finding that the ALJ must 

articulate, at some minimum level, his analysis of the evidence). The ALJ must “build an 

accurate and logical bridge from the evidence to his conclusion.” Zurawski, 245 F.3d at 887 

(quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)). A minor discrepancy, coupled 

with the ALJ’s observations is sufficient to support a finding that the claimant was incredible. 

Bates, 736 F.3d at 1098. However, this must be weighed against the ALJ’s duty to build the 

record and not to ignore a line of evidence that suggests a disability. Bates, 736 F.3d at 1099. 

 Smullen has argued that the ALJ relied on disjointed facts that were incorrect, irrelevant 

to her ability to work, or were not examples of deception or exaggeration. She noted that the 

ALJ found that there was no medical evidence that supported her claim of fear or difficulty in 
17 

crowds. Without citing any medical evidence, Smullen has claimed that her hearing loss and 

mood swings could cause difficulties in crowds. She also has argued that the ALJ failed to 

explain why her worsening symptoms made her less credible. Additionally, Smullen has 

claimed that the ALJ cherry-picked the evidence he needed to support his credibility finding. 

 The ALJ’s credibility finding was not patently wrong. First, he noted that the medical 

evidence did not support many of Smullen’s claims. For example, the ALJ mentioned that the 

record did not show a fear of crowds, any neck or shoulder motion limitations, frequent 

bathroom breaks, severe edema, or the need for a cane. (Tr. 31, 32, 34). The ALJ could not 

reject Smullen’s claims based solely on the lack of supporting medical evidence, but he could 

consider the lack of medical evidence when deciding Smullen’s credibility. Smith v. Apfel, 231 

F.3d 433, 439 (7th Cir. 2000). 

 The ALJ also relied on his observations at the hearing to find Smullen less credible. He 

indicated that Smullen alleged a hearing loss that made it difficult to understand what people 

were saying. (Tr. 31). However, during the hearing, the ALJ asked Smullen questions while 

looking down at his desk with his mouth facing the table, and Smullen answered the questions 

without issue. (Tr. 31). He found that Smullen could hear conversations at a normal level and 

noted that Smullen’s consultative physical examiner also did not notice any hearing issues. (Tr. 

31). Additionally, the ALJ mentioned Smullen’s inconsistent testimony about her ability to 

walk. (Tr. 31). He indicated that Smullen first testified that she could not walk more than ten 

minutes, but she testified later that she could walk twenty to thirty minutes. (Tr. 31). 

 In further support of his credibility finding, the ALJ reviewed Smullen’s alleged 

neuropathy. (Tr. 32). He indicated that her diabetic medication improved her neuropathy, that 

she did not follow her diet, that her blood sugar levels were normal, that her podiatrist only 
18 

provided inserts, and that she did not have significant feet ulcers. (Tr. 32). He found that 

Smullen’s statements did not support her credibility. (Tr. 32). Lastly, the ALJ found Smullen 

less credible because she alleged worsening symptoms after her alleged onset date. (Tr. 32). 

 The ALJ should not have considered Smullen’s failure to follow her diet when assessing 

her credibility. Smullen testified that she “tr[ies] to pretty much stick to [her] diet” but that she 

has “some pop and some candy” occasionally. (Tr. 633). She also stated that she checked her 

blood sugar three times a day and that her blood sugar levels were normal. (Tr. 633). The ALJ 

has not explained why occasional noncompliance with her diet rendered Smullen incredible. See 

Everett v. Colvin, 2015 WL 3485602, at *7 (N.D. Ind. June 2, 2015) (finding that the ALJ should 

not have considered the claimant’s failure to follow his diet when assessing his credibility) 

(citations omitted). The ALJ also failed to explain why Smullen’s worsening symptoms made 

her less credible. Without explanation, the ALJ failed to build a logical bridge from her 

worsening symptoms to a negative credibility factor. 

 However, those errors did not render the ALJ’s credibility finding patently wrong 

because he also relied on other reasons when partially crediting her testimony. He relied on his 

observations of Smullen at the hearing, the objective medical evidence, her inconsistent 

statements, and her treatment to support his credibility finding. Furthermore, the ALJ did not 

reject all of Smullen’s testimony because he included limitations that supported her claims. For 

example, he limited her to sedentary work, restricted her overhead activity, and limited her 

exposure to noise. (Tr. 30). Despite Smullen’s arguments, the ALJ did not rely on irrelevant 

facts or cherry pick the evidence. Therefore, the ALJ’s credibility finding was not patently 

wrong. 
19 

 Smullen also has argued that the ALJ evaluated Dr. Tallon’s opinion improperly. A 

treating source’s opinion is entitled to controlling weight if the “opinion on the issue(s) of the 

nature and severity of [the claimant’s] impairment(s) is well-supported by medically acceptable 

clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial 

evidence” in the record. 20 C.F.R. ' 404.1527(d)(2); see Bates v. Colvin, 736 F.3d 1093, 1099 

(7th Cir. 2013); Punzio v. Astrue, 630 F.3d 704, 710 (7th Cir. 2011); Schmidt v. Astrue, 496 

F.3d 833, 842 (7th Cir. 2007). The ALJ must “minimally articulate his reasons for crediting or 

rejecting evidence of disability.” Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir. 2000) (quoting

Scivally v. Sullivan, 966 F.2d 1070, 1076 (7th Cir. 1992)); see 20 C.F.R. ' 404.1527(d)(2) (“We 

will always give good reasons in our notice of determination or decision for the weight we give 

your treating source’s opinion.”). 

 “‘[O]nce well-supported contradicting evidence is introduced, the treating physician’s 

evidence is no longer entitled to controlling weight’ and becomes just one more piece of 

evidence for the ALJ to consider.” Bates, 736 F.3d at 1100. Controlling weight need not be 

given when a physician’s opinions are inconsistent with his treatment notes or are contradicted 

by substantial evidence in the record, including the claimant’s own testimony. Schmidt, 496 

F.3d at 842 (“An ALJ thus may discount a treating physician’s medical opinion if the opinion is 

inconsistent with the opinion of a consulting physician or when the treating physician’s opinion 

is internally inconsistent, as long as he minimally articulates his reasons for crediting or rejecting 

evidence of disability.”); see, e.g., Latkowski v. Barnhart, 93 F. App’x 963, 970–71 (7th Cir. 

2004); Jacoby v. Barnhart, 93 F. App’x 939, 942 (7th Cir. 2004). If the ALJ was unable to 

discern the basis for the treating physician’s determination, the ALJ must solicit additional 

information. Moore v. Colvin, 743 F.3d 1118, 1127 (7th Cir. 2014) (citing Similia v. Astrue, 
20 

573 F.3d 503, 514 (7th Cir. 2009)). Ultimately, the weight accorded a treating physician’s 

opinion must balance all the circumstances, with recognition that, while a treating physician “has 

spent more time with the claimant,” the treating physician may also “bend over backwards to 

assist a patient in obtaining benefits . . . [and] is often not a specialist in the patient’s ailments, as 

the other physicians who give evidence in a disability case usually are.” Hofslien v. Barnhart, 

439 F.3d 375, 377 (7th Cir. 2006) (internal citations omitted); see Punzio, 630 F.3d at 713. 

 In December 2013, Dr. Tallon stated that Smullen was disabled due to neck and back 

pain, diabetes, and diabetic neuropathy. (Tr. 471). The ALJ did not give that statement 

significant weight because Dr. Tallon’s medical source statement, her treatment notes, and other 

medical evidence did not support that conclusion. (Tr. 33). Additionally, the ALJ stated that Dr. 

Tallon relied mostly on Smullen’s subjective complaints. (Tr. 34). Smullen has argued that the 

medical evidence and Dr. Tallon’s notes supported her opinion. Although not cited by the ALJ, 

she also has argued that the ALJ should not have discounted Dr. Tallon’s opinion based on her 

relatively short treating relationship. 

 The ALJ did not err by discounting Dr. Tallon’s December 2013 statement that Smullen 

was disabled because that is an issue reserved to the Commissioner. 20 C.F.R. § 416.927(d)(1); 

see Dixon v. Massanari, 270 F.3d 1171, 1177 (7th Cir. 2001). Additionally, he minimally 

articulated his reasons for discounting the remainder of Dr. Tallon’s opinion. The ALJ stated 

that the record, including Smullen’s treatment records and Dr. Bacchus’s findings, did not 

support Dr. Tallon’s opinion. (Tr. 33–34). Specifically, he noted that Dr. Tallon’s records did 

not establish a positive straight leg raise, decreased sensation, atrophy, loss of strength, or loss of 

reflexes. (Tr. 33). Furthermore, he indicated that left hip x-rays were negative, that knee x-rays 

showed mild findings, that lumbar x-rays showed mild spondylosis and degenerative disc 
21 

disease, that MRIs revealed mild results without severe stenosis, and that computed tomography 

was unremarkable. (Tr. 33–34). The ALJ found those diagnostic test results inconsistent with 

Dr. Tallon’s opinion, which included limitations related to Smullen’s hip, an inability to stoop or 

balance, and a limited ability to reach in any direction. (Tr. 33). 

 Despite Dr. Tallon’s opinion that Smullen needed a cane most of the time for walking, 

the ALJ indicated that Smullen did not testify that she needed a cane at the administrative 

hearing later that month. (Tr. 34). He also reviewed inconsistencies between Dr. Tallon’s 

opinion and Dr. Bacchus’s opinion. (Tr. 32–34). For example, Dr. Tallon found vision, hearing, 

and shoulder limitations, but Dr. Bacchus found that Smullen had 20/20 corrected vision, that 

she could hear conversational speech, and that she had 4/5 upper extremity strength without 

atrophy. (Tr. 32–33). The ALJ also reviewed Dr. Bacchus’s findings that Smullen had 5/5 lower 

extremity strength, a slow and steady gait without a need for an assistive device, and preserved 

fine and gross dexterity. (Tr. 32–33). 

 Because the ALJ found Dr. Bacchus’s opinion consistent with the other medical 

evidence, he accepted his opinion over Dr. Tallon’s. (Tr. 34). The ALJ further discounted Dr. 

Tallon’s opinion because she did not explain why Smullen’s mild disc bulging, desiccation, and 

narrowing prevented her from working even with medication and because she relied largely on 

Smullen’s subjective complaints. (Tr. 34). The ALJ provided several good reasons to discount 

Dr. Tallon’s opinion. 

 Finally, Smullen has argued that the ALJ failed to account for all her limitations in the 

VE hypothetical and the RFC. The ALJ’s RFC assessment and the hypothetical posed to the VE 

must incorporate all of the claimant’s limitations supported by the medical record. Yurt v. 

Colvin, 758 F.3d 850, 857 (7th Cir. 2014) (citing O’Connor-Spinner v. Astrue, 627 F.3d 614, 
22 

619 (7th Cir. 2010)); Indoranto v. Barnhart, 374 F.3d 470, 473–74 (7th Cir. 2004) (“If the ALJ 

relies on testimony from a vocational expert, the hypothetical question he poses to the VE must 

incorporate all of the claimant’s limitations supported by medical evidence in the record.”). That 

includes any deficiencies the claimant has in concentration, persistence, or pace. Yurt, 758 F.3d 

at 857; O’Connor-Spinner, 627 F.3d at 619 (“Among the limitations the VE must consider are 

deficiencies of concentration, persistence and pace.”); Stewart v. Astrue, 561 F.3d 679, 684 (7th 

Cir. 2009) (indicating the hypothetical question “must account for documented limitations of 

‘concentration, persistence, or pace’”) (collecting cases). 

 The most effective way to ensure that the VE is fully apprised of the claimant’s 

limitations is to include them directly in the hypothetical. O’Connor-Spinner, 627 F.3d at 619. 

However, an ALJ’s hypothetical may omit “concentration, persistence, or pace” when it is clear 

that the ALJ’s phrasing specifically excluded tasks that someone with the claimant’s limitations 

could not perform. O’Connor-Spinner, 627 F.3d at 619. Additionally, courts may uphold a 

hypothetical that does not mention “concentration, persistence, or pace” when the underlying 

conditions were mentioned and the link between the underlying condition and the concentration 

difficulties was apparent enough to incorporate those difficulties by reference. See Simila, 573 

F.3d at 521–22 (upholding the hypothetical but indicating the failure to include the specific 

limitations was “troubling”). 

 Smullen has argued that the ALJ failed to account for her social functioning limitations. 

However, the ALJ found that she did not have any social functioning limitations, and he 

supported that conclusion with substantial evidence. The ALJ indicated that Smullen had no 

problems relating to family, friends, or neighbors, that she talked with her family every day, that 

she visited her daughter and grandchildren frequently, that she got along with authority figures, 
23 

and that she did not lose any jobs because of an inability to get along with others. (Tr. 28). 

Based on those findings, the ALJ rejected the State agency psychological consultant’s opinion 

that limited Smullen to superficial interaction with others. (Tr. 35). He concluded that Smullen 

had few social limitations, which was inconsistent with the consultant’s opinion. (Tr. 35). In 

addition, the ALJ found that Smullen’s mood swings were not a severe impairment, as discussed 

above. Therefore, the ALJ supported his finding that Smullen did not have any social 

functioning limitations with substantial evidence. Thus, he did not need to include any social 

functioning limitations in the RFC or the VE hypothetical. See Schmidt v. Astrue, 496 F.3d 833, 

846 (7th Cir. 2007) (“[T]he ALJ is required only to incorporate into his hypotheticals those 

impairments and limitations that he accepts as credible.”) (citation omitted). 

 Next, Smullen has argued that the ALJ failed to account for her limitations in 

concentration, persistence, and pace. The ALJ found that Smullen had moderate limitations in 

concentration, persistence, and pace and limited her to performing simple, routine, repetitive 

tasks; remembering simple work-like procedures; maintaining the concentration required to 

perform simple tasks; utilizing basic reading skills such as those required to read lists and 

address labels; and working in an environment with a moderate noise level. (Tr. 29–30, 663–

64). The ALJ stated that Smullen’s borderline intellectual functioning caused her limitations, but 

he noted that she had no difficulty with basic reading and writing or following written or verbal 

instructions. (Tr. 29). However, he also credited the State agency psychological consultant’s 

opinion, which found that Smullen had a moderate limitation in understanding, remembering, 

and carrying out detailed instructions. (Tr. 397). The State agency consultant did not find any 

other limitations in the sustained concentration and persistence section. (Tr. 397). 
24 

 Smullen has argued correctly that the ALJ must incorporate her concentration, 

persistence, and pace limitations into the RFC and any VE hypothetical and that the most 

effective way is to include them directly. O’Connor-Spinner, 627 F.3d at 619. But the ALJ can 

omit concentration, persistence, and pace when the ALJ’s phrasing specifically excluded tasks 

that the claimant could not perform. O’Connor-Spinner, 627 F.3d at 619; see Varga v. Colvin, 

794 F.3d 809, 814–16 (7th Cir. 2015) (evaluating whether an ALJ’s hypothetical question to a 

VE adequately accounted for all moderate difficulties in mental functioning in Section I of the 

MRFCA form). Here, the ALJ not only included a limitation to simple, routine, and repetitive 

tasks, but he also limited Smullen to simple work-like procedures, simple tasks, basic reading 

levels, and a moderate level of noise. (Tr. 30, 663–64). By limiting Smullen to simple work-like 

procedures, simple tasks, and basic reading levels, the ALJ accounted for Smullen’s moderate 

limitation in understanding, remembering, and carrying out detailed instructions. (Tr. 397). 

 Finally, Smullen has argued that the ALJ failed to account for her frequent bathroom 

breaks, which would prevent her from working forty hours. Although Smullen complained of an 

overactive bladder that caused her to urinate ten to fifteen times a day, the ALJ found that the 

record did not support that allegation. (Tr. 34, 583). Additionally, he stated that the record did 

not show that the limitation lasted twelve months in duration or that the side effect could not be 

accounted for with changes in medication dosage or type. (Tr. 34). As discussed above, the 

ALJ’s credibility finding was not patently wrong, and he found that Smullen was incredible 

regarding her claims of frequent bathroom breaks because there was a lack of support in the 

record. Because the ALJ did not find this claim credible and his credibility finding was not 

patently wrong, he did not need to incorporate any limitations for Smullen’s claim of frequent 

bathroom breaks. See Schmidt, 496 F.3d at 846. Therefore, the ALJ supported his RFC finding 
25 

with substantial evidence and he properly relied on the VE’s testimony about the jobs that 

Smullen could perform. 

 Based on the foregoing reasons, the decision of the Commissioner is AFFIRMED. 

 ENTERED this 29th day of August, 2016. 

 /s/ Andrew P. Rodovich 

 United States Magistrate Judge