IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

STEVEN LUGO, )

)

Plaintiff, )

)

vs. ) No. 2:13-CV-203

)

CAROLYN W. COLVIN, )

Acting Commissioner of )

Social Security, )

)

Defendant. )

OPINION AND ORDER

This matter is before the Court for review of the Commissioner

of Social Security’s decision denying Disability Insurance Benefits

to Plaintiff, Steven Lugo. For the reasons set forth below, the

Commissioner of Social Security’s final decision is AFFIRMED. 

BACKGROUND

On April 19, 2010, Plaintiff, Steven J. Lugo (“Lugo”), applied

for Social Security Disability Insurance Benefits (“DIB”) under Title

II of the Social Security Act, 42 U.S.C. section 401 et seq. Lugo 

alleged his disability began on June 12, 2009. The Social Security

Administration denied his initial application and also denied his

claims on reconsideration. On August 8, 2011, Lugo appeared with his

attorney and testified at an administrative hearing before

Administrative Law Judge (“ALJ”) Dennis R. Kramer (“Kramer”). In
addition, Dr. James M. McKenna, M.D., testified as a medical expert

(“ME”) and Leonard M. Fisher testified as a vocational expert (“VE”).

Additional medical evidence was submitted necessitating a supplemental

hearing. The supplemental hearing was held on January 3, 2012. At

this hearing, Lugo testified in addition to James M. Brooks, Ph.D.,

an ME, and Thomas A. Gusloff, a VE. On January 11, 2012, ALJ Kramer

denied Lugo’s DIB claim, finding that Lugo had not been under a

disability as defined in the Social Security Act. 

Lugo requested that the Appeals Council review the ALJ’s

decision. This request was denied. Accordingly, the ALJ’s decision

became the Commissioner’s final decision. See 20 C.F.R. §

422.210(a)(2005). Lugo has initiated the instant action for judicial

review of the Commissioner’s final decision pursuant to 42 U.S.C.

section 405(g).

DISCUSSION

Facts

Lugo was born on January 26, 1967, and was 42 years old on the

alleged disability onset date. (Tr. 23, 209). Lugo’s alleged

impairments include hypertension, status-post left shoulder rotator

cuff surgery with detached bicep surgery on the left arm, cubital

tunnel syndrome, and depression. (Tr. 13-14). He has a high school

diploma and completed a 5-year apprenticeship. (Tr. 227). His only

past relevant work is as a journeyman sheet-metal worker. (Tr. 228). 

-2-
He last worked in June of 2009. (Tr. 228). 

 The medical evidence can be summarized as follows:

Lugo injured his rotator cuff and biceps tendon on February 5,

2009, while drilling and reaching overhead at work. (Tr. 322). He

participated in physical therapy for about three weeks with no

improvement. (Tr. 322, 388). 

An MRI of Lugo’s left shoulder taken on April 7, 2009, showed

findings suggestive of a rotator cuff tear and productive changes at

the acromioclavicular joint, with some impingement. (Tr. 315-16, 341,

368, 394, 492). 

On June 18, 2009, Lugo underwent surgery performed by Dr. Thometz

at the Same Day Surgery Center at Ingalls Family Care Center. (Tr.

322, 372). The procedures performed were: left shoulder arthroscopic

rotator cuff repair with subacromial decompression and arthroscopic

biceps tenodesis. (Tr. 375, 396, 520). On June 29, 2009, it was

noted that his wounds were clean and he could start therapy. (Tr.

387). On August 18, 2009, Lugo’s physical therapist recommended that

he continue with therapy. (Tr. 360). Physical therapy notes from

September 1, 2009, show Lugo putting forth maximum effort but still

having difficulty using his left arm against gravity. (Tr. 358). On

September 9, 2009, Dr. Thometz noted that Lugo still had some soreness

and difficulty sleeping but the physical therapy was helping. (Tr.

385). September 17, 2009, notes from Accelerated Rehabilitation

Center show that Lugo was continuing to benefit from physical therapy. 

-3-
(Tr. 347-48, 350, 356, 503). On October 7, 2009, Dr. Thometz reported

that Lugo was having a bit of weakness for finger abduction and had

a little bit of sensitivity for Tinel’s at the elbow. (Tr. 385). He

was making slow progress in physical therapy but therapy was

continued. (Id.). 

An October 20, 2009, MRI of Lugo’s left shoulder showed: reduced

sensitivity/specificity for pathology due to patient motion; intact

attenuated supraspinatus rotator cuff repair with intrinsic signal

abnormality which likely is post-surgical; intact biceps anchor and

long head of the biceps tendon with intrinsic signal abnormality which

likely is post-surgical; and severe infraspinatous tendinosis along

with a small partial thickness articular surface subscapularis tear. 

(Tr. 339-40, 392-93, 490-91). On October 23, 2009, Dr. Thometz

discussed the MRI results with Lugo and reported that his current

therapy would be continued. (Tr. 384, 480). 

On November 4, 2009, Lugo underwent an independent medical

examination by Dr. Timothy R. Lubenow. (Tr. 322-27). Dr. Lubenow

reported: 

He is still having a lot of pain with certain

motions, especially internal and external

rotation at the shoulder joint. He also is

having limitations with movement. He also states

that he has some numbness and paresthesias in his

pinky and ring fingers that run up to midforearm. He describes a constant ache in his

shoulders of around 5-6/10 and with motion during

therapy and certain stretches, the pain can get

to be a 9-10/10. The pain is all in his left

shoulder and he describes the pain as aching,

with occasional shooting pains down the arm. He

-4-
feels that he has muscle weakness on that side in

that upper extremity as well as tremors. 

(Tr. 322). His medications in November of 2009 included Norco

10/3251, which he takes three or four times per day and Ambien CR2

which he takes at bedtime. (Tr. 322). Lugo was measured at 5’11”

with a weight of 240 pounds.3 (Tr. 322). Dr. Lubenow reported that

Lugo had significant tremors both at rest and with active motion. 

(Tr. 322-23). Grip strength on the left was reduced to 3/5 compared

to the right and flexion, extension, abduction and adduction at the

left shoulder were all decreased to 4/5. (Tr. 323). Flexion and

extension strength at the left elbow was 4/5. (Id.). He also had

significantly limited range of motion, especially with flexion

(approximately 110o/180o) and abduction (approximately 105o/180o). 

(Tr. 323). Extension was limited to about 35o/60o. In addition, Lugo

had paresthesias and sensory changes along the pinky and ring fingers

and also in the lateral hand and wrist. (Id.). Dr. Lubenow concluded

that Lugo’s function was severely restricted and recommended that he

1

Norco 10/325 (10 mg of hydrocodone bitartrate and 325 mg of

acetaminophen is an opioid analgesic used to treat moderate to

moderately severe pain. The most frequent side effects of Norco

are lightheadedness, dizziness, sedation, nausea, and vomiting.

http://www.rxlist.com/norco-drug.htm 

2

 Ambien CR (zolpidem tartrate) is a sedative used to treat

insomnia characterized by difficulty falling asleep and/or

staying asleep. http://www.rxlist.com/ambien-cr-drug.htm

3

A height of 5’11” and a weight of 240 pounds indicates a

body mass index (BMI) of 33.5 which reflects obesity.

http://nhlbisupport.com/bmi/bminojs.htm

-5-
continue attending therapy three times per week. (Tr. 323). 

On November 9, 2009, Dr. Thometz reported that Plaintiff was

making progress in therapy. (Tr. 331). He was still tight for

internal rotation and still having some numbness and tingling through

the ring and small fingers of his left hand. (Id.). He has a fairly

weak left grip compared to the right. (Id.). On exam he had a mildly

positive Tinel’s sign at the elbow and at the wrist for the ulnar

nerve. (Tr. 331). Dr. Thometz noted that Lugo “is not capable of

work. He will continue in his current therapy program.” (Tr. 331). 

Physical therapy notes from November 17, 2009, show Lugo putting forth

maximum effort, that he is making some progress and that the skilled

therapy should continue. (Tr. 346, 501). On November 18, 2009, Dr.

Thometz noted that Lugo was progressing in therapy. (Tr. 384, 480). 

He still had some numbness and tingling in the left small and ring

finger. (Tr. 384, 480). Dr. Thometz continued Lugo in his current

therapy. (Id.). 

On December 3, 2009, George Charuk, M.D., administered an

electrodiagnostic study at the referral of Dr. Thometz. (Tr. 328-30,

383, 479). The EMG showed a conduction abnormality of the ulnar nerve

distal to the medial epicondyle. “These electrical findings are

consistent with a mild cubital tunnel syndrome.”4 (Tr. 330, 332,

4

“Cubital Tunnel Syndrome is a condition brought on by

increased pressure on the ulnar nerve at the elbow.... [S]ymptoms

usually include pain, numbness and/or tingling. The numbness and

tingling most often occurs in the ring and little fingers....

When symptoms are severe or do not improve, surgery may be needed

-6-
336). On December 10, 2009, Dr. Thometz gave Lugo a prescription to

continue his current therapy program, noting that he was not yet ready

for work conditioning. (Tr. 380). 

On January 5, 2010, physical therapist Cheryl Shelby reported to

Dr. Thometz that Lugo was making slow progress and recommended that

another four weeks of therapy (2-3x/week) be prescribed. (Tr. 344,

362, 495). On January 19, 2010, Chartis-Clayton (the Worker’s Comp

insurer) indicated that it was denying coverage for additional therapy

claiming that it did not appear to be medically necessary. (Tr. 363,

496). On January 27, 2010, Dr. Thometz noted that the prior request

for additional therapy had been denied and he wrote a new prescription

for therapy. (Tr. 380). 

On February 3, 2010, it was noted that no therapy had been

approved and Lugo was still having a lot of difficulty with his wrist. 

(Tr. 379, 475). Dr. Thometz reported persistent left wrist pain. 

(Id.). On February 24, 2010, an MRI of Lugo’s left wrist showed nonspecific edema over the dorsum of the carpus within the region of the

dorsal intercarpal ligaments, suspicious for ligamentous injury; also

mild osteoarthritis in the carpus. (Tr. 338, 391, 489). On March 3,

2010, Lugo and Dr. Thometz discussed the MRI results and the fact that

Lugo has not gotten the approval for any additional therapy or even

to ease the pressure on the nerve.” http://www.assh.org/Public/

HandConditions/Pages/CubitalTunnelSyndrome.aspx. Even after

surgery the symptoms may not completely resolve, especially in

severe cases. (Id.).

-7-
any home exercise equipment. (Tr. 376, 472). Dr. Thometz recommended

a trial of therapy for the left wrist and resumption of therapy for

the shoulder. (Id.). He noted that Lugo was “not capable of regular

work.” (Tr. 378). On April 7, 2010, Dr. Thometz noted that Lugo

still had numbness through the ring and small fingers and soreness

through the wrist. (Tr. 376, 472). Although there was almost full

forward elevation there was still some tightness for internal rotation

with the thumb getting a little bit past the hip towards L4. (Id.). 

Dr. Thometz still recommended a course of therapy for the wrist and

elbow and additional therapy for the shoulder. (Tr. 376, 472). Dr.

Thomas also reported that Lugo was “not capable of regular work at

that time.” (Tr. 376, 472). On May 5, 2010, Dr. Thometz reported no

change in Lugo’s condition or his recommendations. (Tr. 468). 

On June 11, 2010, Lugo was examined by Kanayo K. Odeluga, M.D.,

at the request of the SSA. (Tr. 416-19). Lugo related left shoulder

pain that he described as aching, constant and moderate in intensity. 

(Tr. 416). It was noted that after the surgery Lugo returned to

physical therapy until January of 2010, when the Worker’s Compensation

insurer did not approve further therapy. (Id.). Lugo reported that

heavy lifting and overhead motion exacerbated his pain. (Tr. 416). 

He also has pain in his left wrist. (Id.). An MRI of the wrist showed

a lot of inflammation. (Tr. 416). His medication still included

Norco and Ambien. (Id.). Dr. Odeluga noted that Lugo had numbness

over the fourth and fifth fingers of his left hand and he was

-8-
diagnosed with ulnar neuropathy following EMG and a nerve conduction

study. (Tr. 417). There was a positive Tinel sign over the ulna

groove on the medial aspect of the left elbow. (Tr. 418). 

Neurological exam was normal. (Tr. 419). Dr. Odeluga’s impression

was: chronic left shoulder pain, left shoulder rotator cuff/biceps

tendon tear post-repair, left ulnar neuropathy, hypertension,

hypercholesterolemia and obesity. (Tr. 419). 

On June 23, 2010, Lugo was examined by psychologist Irena M.

Walters, Psy.D., at the request of the SSA. (Tr. 427-29). Lugo

related to Dr. Walters that he had not had any physical therapy since

January after Worker’s Compensation told him he was not entitled to

any more therapy. (Tr. 427). Lugo related that he was left-handed

and had lost mobility in his left hand. (Tr. 428). Lugo admitted to

feelings of hopelessness or helplessness since being out of work. 

(Tr. 428). Since the injury he has experienced fatigue, loss of

energy and a loss of interest in doing things. (Tr. 428). Dr.

Walters found that Lugo’s mood was subdued and his affect was

appropriate. (Tr. 428). Dr. Walters noted that Lugo put forth good

effort during the evaluation. (Tr. 429). Dr. Walters gave no

diagnosis on Axis I or Axis II. (Tr. 429). 

On June 30, 2010, Amy Johnson, Ph.D., reviewed the records and

filled out a psychiatric review technique form indicating that Lugo

-9-
had no medically determinable mental impairment.5

 (Tr. 430). On July

9, 2010, Fernando Montoya, M.D., reviewed the record and filled out

a physical residual functional capacity form opining that Lugo

retained the functional capacity for light work with occasional

climbing of ladders, ropes and scaffolds and also occasional crawling;

but with frequent climbing of ramps/stairs, balancing stooping,

kneeling and crouching.6

 (Tr. 444-52). Dr. Montoya concluded that

reaching and handling should be limited to occasional with the left

arm and that there were not limitations in reaching or handling with

the right arm. (Tr. 447). Dr. Montoya further concluded that Lugo

had no limitations with regard to fingering or feeling with either

hand. (Id.). 

On July 7, 2010, Dr. Thometz noted that authorization had not

been granted for Lugo to see the hand specialist. (Tr. 468). On

August 11, 2010, Dr. Thometz reported no change although Lugo reported

feeling anxious and depressed. (Tr. 455, 466). Dr. Thometz

recommended that Lugo have a psychological evaluation. (Id.). Dr.

Thometz continued to report no change in Lugo’s condition from

September 2010 through December 2010. (Tr. 455, 465, 466). 

5

On October 12, 2010, another State agency physician, J.

Grange, Ph.D., affirmed Dr. Johnson’s form as written. (Tr. 452).

6

It appears that, on October 7, 2010, Dr. Montoya’s RFC form

was affirmed as written by B. Whitley, M.D., another State agency

paper reviewer. (Tr. 458). Dr. Whitley references an assessment

dated July 12, 2010, not July 9, 2010, but this Court did not

find any report in the file dated July 9, 2010. 

-10-
An MRI arthrogram of Lugo’s left shoulder taken on January 17,

2011, showed status-post rotator cuff repair, mild subacromial

bursitis and degenerative changes of the acromioclavicular

articulation. (Tr. 487). 

On April 20, 2011, Dr. Thometz reported that Lugo had seen Dr.

Nagel and that Dr. Nagel thought that the cubital tunnel syndrome was

likely an aggravation of his post-surgical treatment. (Tr. 462). On

May 18, 2011, Dr. Thometz reported that a new EMG7

 showed evidence of

bilateral cubital tunnel syndrome. (Tr. 459, 542). Lugo continued

to have numbness and tingling in his left hand but no symptoms on the

right. (Id.). On exam he had a positive Tinel’s sign at the elbow. 

(Id.). He also had some difficulty with weakness of small finger

abduction. (Id.).

On June 15, 2011, Dr. Thometz reported that Lugo’s condition was

basically unchanged. (Tr. 459, 542). On July 27, 2011, Dr. Thometz

reported no change and that the worker’s comp insurer had still not

approved any additional treatment. (Tr. 542). Lugo was still having

numbness and tingling through his small and ring fingers on his left

hand and he had been getting some popping and discomfort while trying

to do home exercises. (Tr. 542). Dr. Thometz recommended treating

the cubital tunnel and then re-establishing therapy. (Id.). 

On August 25, 2011, Lugo was examined by Mark A. Amdur, M.D., at

the request of Lugo’s attorney. (Tr. 551-54). Dr. Amdur is certified

7

The EMG was performed on May 12, 2011. (Tr. 460).

-11-
in psychiatry and qualified in forensic psychiatry by the American

Board of Psychiatry and Neurology. (Tr. 547). Dr. Amdur reviewed

various medical records including the reports of Drs. Parks and

Walters from 2008 and 2010. (Tr. 551). Lugo related to Dr. Amdur

that he had surgery on his shoulder but his treatment was cut short. 

(Id.). “Feelings of despondency and rejection centered on the denial

of physical therapy services,”8 were a recurring theme throughout the

interview. (Tr. 551). Lugo related pain and weakness in his left

shoulder with numbness and tingling in his left hand that interferes

with gripping and grasping. (Tr. 551). He also related problems with

focus and following through with directions. (Id.). Lugo admitted

to crying daily over the last six months. (Tr. 551). Lugo described

diminished libido and diminished desire to play with his children. 

(Id.). He had withdrawn from family contact. (Id.). He tearfully

admitted to often wishing he was dead. (Id.). He had also reportedly

gained weight. (Tr. 552). He related marked difficulty staying

asleep. (Tr. 554). Lugo said he had given up going to church. (Tr.

552). He mostly just lies around the house and has to be prompted to

shower, shave or change clothes. (Tr. 552). 

Brief muscle testing revealed diminished strength in his left

shoulder and left hand. He seemed unable to move the third and fourth

fingers of his left hand. He is obese. (Tr. 552). Dr. Amdur

8

The physical therapy services were denied by the Worker’s

Compensation insurer for the first time in January 2010, but the

refusal to authorize or pay for treatment continued. 

-12-
reported that Lugo was tense and apprehensive to a moderately severe

degree. (Id.). Lugo’s responses were moderately slowed. (Id.). 

“Affect was depressed to a moderately severe degree.” (Tr. 552). Dr.

Amdur noted that Lugo is obsessive and fixated on the physical therapy

services and treatment denied to him. His somatic and pain

preoccupations are markedly severe. (Tr. 552). Lugo was unable to

name any recent news events. (Id.). His score on the Montreal

Cognitive Assessment showed a mild cognitive impairment. (Id.). His

performance on that test was slow. (Tr. 552). Dr. Amdur reported

that, “the intensity and persistence of his current depression are

consistent with major depressive disorder.” (Tr. 553). Dr. Amdur

assessed that Lugo would be a slow worker and unable to relate

effectively with co-workers or supervisors. In addition, he believed

Lugo was affectively labile and would be unable to tolerate work

stresses. (Tr. 553). Dr. Amdur diagnosed Lugo with depression. 

(Id.). 

On September 9, 2011, Dr. Amdur completed a medical source

statement of ability to do mental activities. (Tr. 544-46). Dr.

Amdur reported that because of motor slowing, impaired concentration

and diminished ability to tolerate stress, Lugo would be unable to

remember, understand and carry out instructions for even unskilled

work. (Tr. 544). Marked social withdrawal would limit his capacity

to deal with co-workers and supervisors. (Tr. 545). 

On September 21, 2011, Dr. Thometz completed a Medical Source

-13-
Statement of ability to do physical work-related activities. (Tr.

555-60). Dr. Thometz reported that Lugo should not be lifting or

carrying even as little as ten pounds, and he has bilateral cubital

tunnel syndrome in his wrists. (Tr. 555). Ulnar neuropathy has been

diagnosed in his left hand and wrist and his shoulder suffers from

subluxation/rotator cuff syndrome. (Id.). Lugo also has biceps

tendonitis. (Tr. 555). Dr. Thometz wrote that Lugo should not do

prolonged sitting, standing or walking and that he should not be using

his hands or wrists. (Tr. 556). Dr. Thometz reported that Lugo

should never use his left hand and his right hand should only be used

occasionally for feeling and fingering. (Tr. 557). Dr. Thometz

explained that Lugo has generalized weakness bilaterally in his hands

and fingers and that the left side is impacted by the ruptured left

rotator cuff, left shoulder weakness with limited arm motion and

numbness/weakness in the left arm and hand. (Tr. 557). Because of

limited upper extremity strength, Dr. Thometz reported that Lugo

should never climb ladders, ropes, or scaffolds; stoop, kneel, crouch

or crawl; and should only occasionally balance. (Tr. 558). 

Lugo’s Testimony

At the first hearing before ALJ Kramer on August 2, 2011, Lugo

testified that he is left-handed. (Tr. 54). He has a high school

education and had been a journeyman sheet-metal worker for over 15

years. (Tr. 54). Lugo explained that there were lapses in his

-14-
medical treatment because the worker’s compensation insurer has

refused to authorize or pay for much of his recommended treatment. 

(Tr. 56). Lugo testified: 

Well, with - - I constantly get numbness in my

hand, my ring finger and my pinky finger. With

that, it’s hard to grasp things and control

things when I have to hold them, you know. I have

problems sleeping at night so I - - 

* * *

It’s because of the pain. I’m constantly turning

and so I constantly feel that effect in my left

shoulder. And, you know, it’s like an aching pain

all the time so I’m just trying to deal with it

the best I can.

(Tr. 57). He testified that he has a hard time holding on to dishes,

but he sets them down before he can drop them. (Tr. 58). He did not

think he would be able to sort and handle papers in a file with his

left hand. (Tr. 59). He gets numbness if he holds something or if

his left arm is in a bent position. (Tr. 60). With his left forearm

and hand horizontal he will get numbness in his hand and in the pinky

and ring finger. (Tr. 61). Lugo explained that he did not receive

all of the post-surgery therapy that he needed so that now just trying

to open a door or lifting a negligible weight results in pain. (Tr.

62). According to Lugo, just lifting the arm itself produces pain. 

(Id.). 

Lugo explained that the worker’s compensation insurer would not

authorize or pay for physical therapy beyond January 5, 2010. (Tr.

64). He rated his left shoulder pain at a 6 out of 10, but when

tossing and turning at night it goes up to 9 out of 10. (Tr. 64). 

-15-
The doctor told him to avoid any overhead work. (Tr. 65). Lugo rated

the pain in his left bicep area at 5 out of 10. (Tr. 66). He

testified that often, if he has not slept well at night, he will get

up in the morning, have something to eat and then go lie down, watch

some television and possibly fall asleep. (Tr. 66-67). He reports

that he rests a couple hours a day. (Tr. 66-67). The day before the

hearing he rested for about two hours. (Tr. 67). During the

remainder of the day he may go outside and take a little walk because

he gets depressed sitting inside all the time. (Tr. 67). One of his

doctors recommended that he see a psychiatrist but the insurer would

not cover it so he is not receiving treatment for his depression. 

(Tr. 67). Lugo wants to have additional surgery and additional

physical therapy. (Tr. 71). 

When asked to describe his depression, Lugo explained, “I don’t

feel like a person. I don’t feel like a man.” (Tr. 72). When the

pain is bad it makes him angry. If he is doing something when the

pain gets bad he usually stops what he is doing. (Tr. 72). 

At Lugo’s second hearing before ALJ Kramer, on January 3, 2012,

Lugo testified that he was still being treated by Dr. Thometz, that

he was still taking medication and that ulnar nerve surgery has been

discussed. (Tr. 34). He testified that he was still experiencing

significant pain. (Tr. 34-35). He also continued to feel depressed. 

(Tr. 35). In August 2011, Lugo told the doctor that he did not go out

very much and spent most of his time at home. Lugo testified that,

-16-
as of the second hearing, that remained true. (Tr. 35). Since he

last appeared before the ALJ he feels more down on himself. (Id.). 

He stated that he felt he was inadequate for his family. (Id.). Lugo

was still pretty apathetic, not seeing his friends, not going out and

not wanting to be with people. (Tr. 35). He testified that he tends

to stay home, not doing much of anything and not having an interest

in anything. (Tr. 35-36). He still has problems sleeping but may

still spend 12 hours a day in bed. (Tr. 36). His wife still has to

urge him to get up, shower, shave and change his clothes. (Tr. 36). 

He has given up his hobbies like golfing and fishing. (Tr. 36). 

Testimony of Dr. McKenna

Dr. James McKenna testified at the August 2011 hearing as a

medical expert. (Tr. 73-92). Dr. McKenna testified that Lugo had a

left rotator cuff injury and productive changes of the

acromioclavicular joint which he stated was spurring of that joint. 

(Tr. 75-76). There was also an associated impingement syndrome. (Tr.

76). Conservative repair surgery was performed on June 18, 2009, but

they did not do the “Mumford decompression” or radical acromioplasty

that Dr. McKenna indicated would have been appropriate. (Tr. 76). 

The surgeon found that his biceps tendon was also torn and that was

treated surgically. (Id.). Dr. McKenna noted that the left shoulder

MRI from October 2009, showed that he did not have a healed, intact

supraspinatus tendon and there was some residual signal abnormality

-17-
showing that there was not complete healing. (Tr. 77). There was

also “severe tendonosis of the infraspinatus tendon with a small

partial tear and thickness and the articular surface suprascapular

tear.” (Tr. 77). Dr. McKenna explained that Lugo also has premature

osteoarthritis in the left wrist. (Tr. 78). Dr. McKenna also noted

that Lugo was found to have bilateral cubital tunnel syndrome, but

with all of the symptoms on the left. (Tr. 79). Dr. McKenna stated

that the ulnar nerve supplies the small finger and the lateral half

of the ring finger and it mostly affects motor function of abduction

of the small finger. (Tr. 79). Dr. McKenna opined that Lugo’s ulnar

neuropathy would really only affect a concert pianist trying to get

a full span of the keyboard. (Tr. 79-80). Dr. McKenna noted that

there could be more limitation where pain was involved. (Tr. 80). 

Dr. McKenna noted some residual pain in Lugo’s shoulder, then stated: 

We would have some residual loss of function as

a result of his previous conditions of the tear

plus repair, and then we have the, we have some

arthritis in his wrist, which he is somewhat

partially symptomatic from, even though some of

the pain in the wrist may be radiation from the

elbow pain because of the carpal tunnel as well.

(Tr. 81). Dr. McKenna repeated that Lugo could have referred pain

into his left wrist. (Tr. 81). Dr. McKenna testified that Lugo did

not quite meet Appendix 1 Listing 1.08, but then noted that “pain does

interfere with his function somewhat.” (Tr. 81-82). Dr. McKenna said

that the listing differentiated between normal function and major

function and opined that the listing was not equaled despite the pain. 

-18-
(Tr. 82). 

Dr. McKenna testified that he thought a limitation to a light

load was prudent. (Tr. 83). Dr. McKenna supported occasional

crawling. (Tr. 83). He felt that Lugo’s reaching on the left would

be limited to occasional. (Tr. 83-84). But, Dr. McKenna later added

that he would reduce handling on the left side to only 10-15% of the

work-day, referring to gross manipulation with the left hand. (Tr.

84). Dr. McKenna also noted that Lugo should avoid concentrated

exposure to extreme cold as well as vibration. (Tr. 85). Dr. McKenna

said that he did not think the ulnar neuropathy would affect someone

who had to type on the job unless they were speed typing and that

frequent computer use would be okay. (Tr. 85-86). Dr. McKenna then

added that elbow flexion would be difficult for Lugo. (Tr. 86). In

response to further questioning, Dr. McKenna acknowledged that

typing/using the computer in general results in flexed elbows. (Tr.

86-87). Dr. McKenna amended his opinion to reflect that Lugo’s

computer usage should be limited to occasional instead of frequent. 

(Tr. 87). Dr. McKenna then brought up the possibility of a functional

overlay and noted that there had been a suggestion by a treating

source that Lugo see a psychiatrist. (Tr. 88). Dr. McKenna, however,

admitted that none of the treating physicians had suggested a

functional overlay and the psychiatric referral was for reactive

depression. (Tr. 88). Despite Dr. McKenna’s initial concern about

the EMG results, he ended up stating that it was actually difficult

-19-
to say what the initial EMG changes represented. (Tr. 89). 

Nonetheless, Dr. McKenna noted that he found it “a little troubling

that [there are] symmetrical objective findings and asymmetrical

subjective findings.” (Tr. 89). Dr. McKenna expressed concern

regarding Lugo’s credibility based on a comparison of the complaints

to the medical record, but stated that he was considering Lugo’s pain

“to a certain extent” in reaching his conclusion regarding Lugo’s RFC,

but other than stating he was not considering 100% of Lugo’s pain, he

did not explain how much pain he had included. (Tr. 89-90). 

Testimony of Dr. Brooks

Psychologist James Brooks testified via telephone as a medical

expert at the supplemental hearing held on January 3, 2012. (Tr. 36-

43). Dr. Brooks had not been present at the first hearing and he

asked no questions of Lugo prior to offering his opinion. (Tr. 36). 

Dr. Brooks’ testimony focused on four exhibits in the file: notes from

Dr. Roger Parks who saw Lugo for 13 individual therapy sessions in

2008 (Exhibit 9F); the June 2010 report of Dr. Walters (Exhibit 10F);

and both a report and an assessment from Dr. Amdur in August of 2011

(Exhibits 17F, 20F). (Tr. 37-39, 422-25, 426-29, 532-36, 543-54). 

Dr. Brooks stated that back in 2008, Lugo was diagnosed with an

adjustment disorder with some symptoms of depression related to

-20-
marital problems.9 (Tr. 37). He testified that at the time of the

June 2010 psychological evaluation, Lugo was receiving no mental

health treatment and no diagnosis was made on either Axis I or Axis

II. (Tr. 37). He stated that the assessment supported only a very

mild level of any kind of psychiatric symptoms. (Tr. 37). Dr. Brooks

testified that the psychological evaluation from August 2011 showed

a totally different picture: it described Lugo as having severe

depression symptoms, decreased libido, weight gain, excessive sleep,

somatic pain and preoccupation, and social withdrawal. (Tr. 37-38). 

In August of 2011, Lugo was given a diagnosis of major depression. 

(Tr. 37-38). Dr. Brooks stated that although Lugo related his

worsening depressive symptoms back to January 2010, the report from

June 2010 did not demonstrate diagnosable depression. (Tr. 38). 

Dr. Brooks also expressed concern about the manner in which the

2011 evaluation took place: the examining psychologist administered

the evaluation at the office of Lugo’s attorney. (Tr. 38-39). The

psychologist, Dr. Amdur, works for the Thresholds organization and

does not have a separate office. (Tr. 40-41). He usually goes to

9

On July 25, 2007, Lugo asked his primary care physician to

refer him to a psychiatrist. (Tr. 414). From February 19, 2008

through July 7, 2008, Lugo had 13 therapy sessions with

psychologist Roger L. Parks, Psy.D. (Tr. 425). He presented with

depressive symptoms including low level energy, difficulty

concentrating and poor sleep. (Id.). He was diagnosed as having

an adjustment disorder with depressed mood. (Tr. 425). The

depression was related to marital conflict, and only minimal

progress had been made when therapy ended and Lugo indicated that

he might be interested in marital therapy with his wife. (Id.).

-21-
individual’s homes for psychological evaluations, but since Lugo lives

in Indiana and Dr. Amdur is licensed in Illinois, the evaluation was

performed at the attorney’s office in Illinois. (Tr. 40-41). Dr.

Brooks testified to no severe mental impairment based primarily on the

June 2010 report. (Tr. 39-40). 

Dr. Brooks acknowledged that long periods of severe pain can

affect an individual’s mental status. (Tr. 41). Dr. Brooks also

conceded that it was possible that an individual’s mental status could

have deteriorated over a year when the person had been experiencing

significant pain. (Tr. 41). Dr. Brooks acknowledges that several

medical examination reports noted that Lugo reported pain. (Tr. 41). 

Dr. Brooks also admitted that difficulty sleeping at night can affect

someone’s mental status. (Tr. 42). Dr. Brooks also testified that

Lugo’s current testimony is more consistent with the August 2011

report than the June 2010 report. (Tr. 42). Dr. Brooks acknowledged

that since he was testifying by telephone he was unable to observe

Lugo. (Tr. 42-43). Dr. Brooks stated that crediting Dr. Amdur’s

report, Lugo would meet the requirements of Listing 12.04 sometime

after June 2010. (Tr. 43). 

Testimony of VE Leonard Fisher

Leonard Fisher testified as a VE at Lugo’s first hearing. (Tr.

90-99). In response to a “modified” RFC consistent with Dr. McKenna’s

testimony, VE Fisher testified that such an individual would be unable

-22-
to perform Lugo’s past relevant work or use any transferable work

skills. (Tr. 91-92). The VE stated that the hypothetical individual

would be at the light unskilled level. (Id.). The VE named parking

lot attendant,10 school bus monitor and usher as jobs the hypothetical

person could perform. (Tr. 93). The VE said that in his experience,

parking lot attendants use their dominant hands from occasionally to

frequently. (Tr. 98). If the individual must lie down for two hours

during the day, the individual would be unable to sustain gainful

employment. (Tr. 97). 

Testimony of VE Thomas A. Gusloff

Thomas A. Gusloff testified as a VE at Lugo’s second hearing.

(Tr. 43-49). When presented with a hypothetical question limiting the

individual according to Dr. McKenna’s testimony, VE Gusloff testified

that such an individual would be unable to perform Lugo’s past

relevant work as a sheet metal worker. (Tr. 44-45). The VE named

three light unskilled jobs he considered consistent with the

hypothetical, naming usher, counter clerk and investigator-dealer

accounts. (Tr. 45). When limitations of function from Dr. Amdur’s

assessment were added to the hypothetical, VE Gusloff testified that

there would be no jobs. (Tr. 45-46). The VE also explained that the

delineation of reaching, handling, fingering and feeling between the

10The VE testified that the job of parking lot attendant is no longer

consistent with the definition listed in the DOT but that, based on his

experience, he considers the job to be consistent with the parameters of the

ALJ’s hypothetical question. (Tr. 94-95). 

-23-
left and right arms is not specifically addressed by the Selected

Characteristics of Jobs Defined in the Dictionary of Occupational

Titles. (Tr. 46).

Review of Commissioner’s Decision

This Court has authority to review the Commissioner’s decision

to deny social security benefits. 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 . . . .” Id.

Substantial evidence is defined as “such relevant evidence as a

reasonable mind might accept as adequate to support a decision.” 

Richardson v. Perales, 402 U.S. 389, 401 (1971). In determining

whether substantial evidence exists, the Court shall examine the

record in its entirety, but shall not substitute its own opinion for

the ALJ’s by reconsidering the facts or re-weighing evidence. Jens

v. Barnhart, 347, F.3d 209, 212 (7th Cir. 2003). With that in mind,

however, this Court reviews the ALJ’s findings of law de novo and if

the ALJ makes an error of law, the Court may reverse without regard

to the volume of evidence in support of the factual findings. White

v. Apfel, 167 F.3d 369, 373 (7th Cir. 1999).

As a threshold matter, for a claimant to be eligible for DIB

under the Social Security Act, the claimant must establish that he is

disabled. To qualify as being disabled, the claimant must be unable

“to engage in any substantial gainful activity by reason of any

-24-
medically determinable physical or mental impairment which can be

expected to result in death or has lasted or can be expected to last

for a continuous period of not less than twelve months.” 42 U.S.C.

§§ 423(d)(1)(A) and 1382(a)(1). To determine whether a claimant has

satisfied this statutory definition, the ALJ performs a five step

evaluation:

Step 1: Is the claimant performing substantial gainful activity: If

yes, the claim is disallowed; if no, the inquiry proceeds

to Step 2.

Step 2: Is the claimant’s impairment or combination of impairments

“severe” and expected to last at least twelve months? If

not, the claim is disallowed; if yes, the inquiry proceeds

to Step 3.

Step 3: Does the claimant have an impairment or combination of

impairments that meets or equals the severity of an

impairment in the SSA’s Listing of Impairments, as

described in 20 C.F.R. § 404, Subpt. P, App. 1? If yes,

then claimant is automatically disabled; if not, then the

inquiry proceeds to Step 4.

Step 4: Is the claimant able to perform his past relevant work? 

If yes, the claim is denied; if no, the inquiry proceeds to

Step 5, where the burden of proof shifts to the

Commissioner.

Step 5: Is the claimant able to perform any other work within his

residual functional capacity in the national economy: If

yes, the claim is denied; if no, the claimant is disabled.

20 C.F.R. §§ 404.1520(a)(4)(i)-(v) and 416.920(a)(4)(i)-(v); see also

Herron v. Shalala, 19 F.3d 329, 333 n. 8 (7th Cir. 1994).

In this case the ALJ found that Lugo was not engaged in

substantial gainful activity and that he suffered from severe

impairments; namely, essential hypertension, status-post left shoulder

rotator cuff surgery with detached bicep surgery on the left arm, and

-25-
left cubital tunnel syndrome. The ALJ further found that Lugo did not

meet or medically equal one of the listed impairments and could not

perform any of his past relevant work, but nonetheless retained the

physical residual functional capacity to perform a reduced range of

light work. More specifically, the ALJ found that:

The claimant has the residual functional capacity

to perform light work as defined in 20 CFR

404.1567(a) in that the claimant can occasionally

lift and/or carry up to 20 pounds and frequently

lift and/or carry up to 10 pounds. He can stand

and/or walk 6 hours in an 8-hour workday. The

claimant should never climb ladders, ropes, or

scaffolds and can only occasionally crawl. He

can finger and feel constantly with both hands,

but must limit reaching with the left, dominant

hand to 10% to 15% of an 8-hour workday. He can

reach constantly with the right hand, and handle

constantly with the right hand, but can only

occasionally handle with the left hand and must

never do any overhead reaching with the left

upper extremity. He should also avoid

concentrated exposure to extreme cold. 

(Tr. 16). 

With these limits in mind, the ALJ found that Lugo could not

perform his past relevant work, but that there were jobs existing in

significant numbers in the national economy that Lugo could perform. 

(Tr. 22-23). Thus, Lugo’s claim failed at step five of the evaluation

process. Lugo believes that reversal is required because the ALJ’s

decision was not supported by substantial evidence. 

Lugo believes that the ALJ erred by failing to give proper

consideration to: 

(1) evidence from one of Lugo’s treating physicians; 

(2) Lugo’s credibility; and

-26-
(3) Lugo’s mental impairment. 

Each argument will be examined in turn. 

The ALJ’s Consideration of Evidence from Dr. Thometz

Lugo claims the ALJ erred in evaluating the evidence obtained

from one of his treating physicians, Dr. Thometz. Social Security

Ruling (“SSR”) 96-2p provides that a treating physician’s medical

opinion must be given controlling weight if it is “well supported” and

“not inconsistent with other substantial evidence in the case record.” 

Furthermore, SSR 96-2p requires that the ALJ’s “decision must contain

specific reasons for the weight given to the treating source’s medical

opinion, supported by the evidence in the case record, and must be

sufficiently specific to make clear to any subsequent reviewers the

weight the adjudicator gave to the treating source’s medical opinion

and the reasons for that weight.” SSR 96-2p. 

If the treating physician’s opinion is not well supported or is

inconsistent with other substantial evidence, the ALJ must apply the

following factors to determine the proper weight to give the opinion: 

(1) the length of the treatment relationship and

frequency of examination;

(2) the nature and extent of the treatment

relationship; 

(3) how much supporting evidence is provided; 

(4) the consistency between the opinion and the record

as a whole;

(5) whether the treating physician is a specialist;

-27-
(6) any other factors brought to the attention of the

Commissioner.

20 C.F.R. §§ 404.1527(d)(2) and 416.927(a)-(d); see Moss v. Astrue, 555

F.3d 556, 561 (7th Cir. 2009); Bauer v. Astrue, 532 F.3d 606, 608 (7th

Cir. 2008). It is reversible error for an ALJ to discount the medical

opinion of a treating physician without applying this legal standard and

for further failing to support the decision with substantial evidence. 

Moss, 555 F.3d at 561; see also Punzio v. Astrue, 630 F.3d 704, 710 (7th

Cir. 2011) (finding the ALJ’s rejection of a treating physician’s mental

residual functional capacity questionnaire was not substantially

supported).

Lugo began treating with Dr. Thometz, an orthopaedic surgeon,

shortly after his work related injury. Several months after the

injury, Dr. Thometz reported that Lugo was not “capable of work” and

needed to continue therapy. (Tr. 331). Dr. Thometz’ notes repeat a

variation of his opinion that Lugo could not work on several

instances. In December of 2009, Dr. Thometz noted that Lugo was not

yet ready for work conditioning. (Tr. 380). In March of 2010, Dr.

Thometz noted that Lugo was “not capable of regular work.” (Tr. 378). 

Again, in April of 2010, Dr. Thometz noted that Lugo was “not capable

of regular work at that time.” (Tr. 376, 472). These treatment

notes, although opining on Lugo’s ability to work, did not offer

specific limitations regarding Lugo’s ability to function. 

In September of 2011, Dr. Thometz completed a medical source

-28-
statement of ability to do physical work-related activities. (Tr.

555-60). This form provided detailed opinions regarding what Lugo can

and cannot do. More specifically, Dr. Thometz opined that Lugo should

not lift or carry even as little as ten pounds. Furthermore, Lugo

should avoid prolonged sitting, standing or walking and should not use

his hands or wrists. (Tr. 556). According to Dr. Thometz, Lugo

should never use his left hand and his right hand should only be used

occasionally for feeling and fingering. (Tr. 557). And, Dr. Thometz

concluded that Lugo should never climb ladders, ropes, or scaffolds;

stoop, kneel, crouch or crawl; and should only occasionally balance. 

(Tr. 558).

The ALJ did not give Dr. Thometz’ opinion controlling weight. 

According to the ALJ: 

Dr. Thometz indicated throughout his 2009 and

into 2010 records that the claimant would not be

capable of regular work. The undersigned notes

that these opinions were rendered mostly after

the claimant had undergone his rotator cuff

surgery and was still participating in physical

therapy. Additionally, Dr. Thometz’s notes

consistently document the claimant’s positive

improvement with the help of the therapy and athome exercises. His indications that the

claimant would not be capable of regular work are

not necessarily clear as to what he considers to

be regular. His opinions are given moderate

weight, but based on his treatment notes from

this period and the claimant’s progression after

his corrective surgery, he would still be capable

of performing work within the parameters set

forth in the residual functional capacity above

(Exhibit 5F).

Dr. Thometz completed a Physical Impairment

Questionnaire on Residual Functional Capacity

-29-
dated August 28, 2011. Therein, he indicated

that because of the claimant’s surgical history,

complaints of shoulder discomfort, and recent

diagnosis of bilateral cubital tunnel syndrome,

his prognosis was fair to poor and that the

claimant would not be capable of working. He

indicated that the claimant could only lift 5 to

10 pounds with his dominant left hand and that he

could carry only 5 to 10 pounds with his left

hand, but that any repetitive motion of the left

hand would aggravate the pain. The undersigned

gives little weight to Dr. Thometz’s opinion that

the claimant cannot work as he provided

restrictions that would not totally preclude the

claimant from all work. In fact, a few months

prior to this opinion, Dr. Thomet’z [sic]

indicated in his notes that the claimant could

not return to his regular work, not that he could

not do any work at all, especially since he

continues to indicate no change in the claimant’s

condition from this indication all the way

through to his opinion rendered in August 2011. 

His opinion as to the claimant’s weight lifting

restrictions is given moderate weight. The

records indicate difficulty with numbness in the

pinky and ring finger of the left hand and

shoulder discomfort. These complaints do not

necessarily support the claimant’s inability to

lift anything with either hand. In any event,

the claimant’s limitations have been reasonably

accounted for in the residual functional capacity

above, and based on vocational expert testimony,

he is not totally precluded from all work within

the national economy, and is therefore not

disabled (Exhibit 18F). 

On September 21, 2011, Dr. Thometz then completed

a Physical Medical Source Statement indicating

that the claimant could not lift even up to 10

pounds with a number of other severe restrictions

including an inability to sit more than 10

minutes at a time, even though the records do not

ever make mention of the claimant’s difficulty

sitting, standing, or walking. Little weight is

also given to Dr. Thometz’s opinion contained in

his Medical Source Statement as they are

generally inconsistent with the objective record

and lack supporting evidence, including support

-30-
from his own treatment notes (Exhibit 21F).

(Tr. 21-22). 

According to Lugo’s counsel:

Dr. Thometz has consistently reported that Lugo

required additional treatment and therapy before

he would even be ready for work hardening

/conditioning, let along [sic] be ready for

competitive employment. Unfortunately, because

of the recalcitrant behavior of the worker’s

compensation insurer, Lugo has been unable to

obtain the treatment and therapy that he has

required since January 2010. As a result, he was

still having problems from the shoulder itself as

well as from the post-surgical developments in

his left wrist and elbow.

(DE 11 at 20). Contrary to counsel’s suggestion, Dr. Thometz’ notes

appear to mention that Lugo was not ready for work conditioning only

once. (Tr. 380). And, it is not clear whether Dr. Thometz was

referring to work conditioning that is specific to Lugo’s previous

work as a sheetmetal worker or work conditioning for the purpose of

being able to perform any work whatsoever. This case involved a

worker’s compensation claim, and when Dr. Thometz refers to “regular

work” it is not clear if he is referring to Lugo’s regular work as a

sheetmetal worker or work generally as regularly performed. 

Ultimately, this is irrelevant though, because Dr. Thometz’ opinions

on the ultimate issue of whether Lugo can work are not entitled to

special deference. The determination of whether Lugo is disabled

as defined under the Social Security Act is not one for Dr. Thometz

to make; it is a determination reserved to the Commissioner. While

the ALJ must consider medical evidence of Lugo’s impairments, the

-31-
final responsibility for deciding Lugo’s RFC is reserved to the

Commissioner, and a treating physician’s opinion that the claimant is

“disabled” or “unable to work” will not be given any special

significance. See Bjornson v. Astrue, 671 F.3d 640, 647-48 (7th Cir.

2012). 

The only portion of Dr. Thometz’ opinions that included specific

enough limitations regarding Lugo’s function so they might be entitled

to controlling weight, if well supported and consistent with other

substantial evidence, are the opinions in the Physical Impairment

Questionnaire dated August 29, 2011, and the Medical Course Statement

dated September 21, 2011. (Tr. 537-40; 555-60). The ALJ noted with

specificity what weight he gave to the opinions in these reports. 

With regard to the Physical Impairment Questionnaire, he gave little

weight to the opinion that Lugo could not work because the

restrictions given were not inconsistent with all work, and he gave

moderate weight to Dr. Thometz’ lifting restrictions.11 (Tr. 21-22). 

With regard to the Physical Medical Source Statement, the ALJ gave

little weight to Dr. Thometz’ opinion in that statement because “they

11Lugo quibbles with the ALJ’s statement that he gave

moderate weight to certain opinions of Dr. Thometz, suggesting

that it is not clear what that means. But when the ALJ’s opinion

is read as a whole, rather than just reading the excerpt that

Lugo quotes in his brief, it is clear what the ALJ meant. (Tr.

21-22). As noted above, the ALJ gave moderate weight to Dr.

Thometz’ lifting restrictions, which were 5 to 10 pounds, and the

ALJ ultimately found in his RFC that Lugo could lift only

slightly more than that, finding he can lift and carry 10 pounds

frequently and 20 pounds occasionally. (Tr. 538, 16).

-32-
are generally inconsistent with the objective record and lack

supporting evidence, including support from his own treatment notes.” 

(Tr. 21-22). 

Lugo also notes that the ALJ gives the most weight to Dr.

McKenna’s testimony. Lugo argues that Dr. McKenna formed his opinion

without reviewing the evidence submitted after the first hearing, and

that, as a non-examining physician, his opinion therefore cannot be

given controlling weight. Contrary to Lugo’s suggestion, nothing in

the ALJ’s opinion suggests that he gave Dr. McKenna’s opinion

controlling weight in violation of the treating physician rule - he

simply gave it more weight than other opinions of record. ALJ Kramer

did not error either in limiting the weight given to Dr. Thometz’

opinions or by placing too much weight on Dr. McKenna’s opinion. 

The ALJ’s Credibility Assessment

Lugo argues that the ALJ improperly discredited his testimony in

violation of SSR 96-7p by relying on meaningless boilerplate language

without providing adequate explanation. Because the ALJ is best

positioned to judge a claimant’s truthfulness, this Court will

overturn an ALJ’s credibility determination only if it is patently

wrong. Skarbek v. Barnhart, 390 F.3d 500, 504 (7th Cir. 2004). 

However, when a claimant produces medical evidence of an underlying

impairment, the ALJ may not ignore subjective complaints solely

because they are unsupported by objective evidence. Schmidt v.

-33-
Barnhart, 395 F.3d 737, 745-47 (7th Cir. 2005); Indoranto v. Barnhart,

374 F.3d 470, 474 (7th Cir. 2004) (citing Clifford v. Apfel, 227 F.3d

863, 872 (7th Cir. 2000)). 

Further, “the ALJ cannot reject a claimant’s testimony about

limitations on [his] daily activities solely by stating that such

testimony is unsupported by the medical evidence.” Id. Instead, the

ALJ must make a credibility determination that is supported by record

evidence and sufficiently specific to make clear to the claimant, and

to any subsequent reviewers, the weight given to the claimant’s

statements and the reasons for the weight. Lopez v. Barnhart, 336

F.3d 535, 539-40 (7th Cir. 2003). 

In evaluating the credibility of statements supporting a Social

Security application, an ALJ must comply with the requirements of SSR

96-7p. Steele v. Barnhart, 290 F.3d 936, 941-42 (7th Cir. 2002). 

This ruling requires ALJs to articulate “specific reasons” behind

credibility evaluations; the ALJ cannot merely state that “the

individual’s allegations have been considered” or that “the

allegations are (or are not) credible.” SSR 96-7p. 

Here, ALJ Kramer determined that “the claimant’s medically

determinable impairments could reasonably be expected to cause the

alleged symptoms; however, the claimant’s statements concerning the

intensity, persistence, and limiting effects of these symptoms are not

credible to the extent they are inconsistent with the above residual

functional capacity assessment.” (Tr. 20). Nearly identical language

-34-
was criticized by the Seventh Circuit in Bjornson v. Astrue, 671 F.3d

640, 645 (7th Cir. 2012). That criticism will not be repeated here. 

The boilerplate language utilized by ALJ Kramer is unhelpful at best,

and by itself, such language is inadequate to support a credibility

finding. See Richison v. Astrue, No. 11-2274, 2012 WL 377674 (7th

Cir. 2012). 

However, where boilerplate language such as that utilized by the

ALJ is accompanied by additional reasons, a credibility determination

need not necessarily be disturbed if otherwise adequate. Id. In this

case, the ALJ’s opinion contains more than mere boilerplate language

in support of his credibility determination. Specifically, the ALJ’s

opinion includes the following:

When evaluating the claimant’s credibility as it

relates to his assertions, the undersigned takes

into consideration various factors, including the

objective medical evidence, statements relating

to alleged pain, medical treatment, medications

taken, and any opinion evidence (see Social

Security Ruling 96-7p).

Overall the claimant’s allegations were generally

credible. However, there were some discrepancies

that detracted from his credibility as well. For

example, the claimant’s mental status examination

as mentioned above limits him greatly, almost to

the point of an inability to function on his own. 

However, the claimant has shown such abilities. 

Additionally, though he was diagnosed with

bilateral cubital tunnel syndrome, he only

alleged symptomatology in one of his hands. 

Though this is not completely unusual, it is out

of character and calls into question the validity

of the claimant’s subjective complaints as pain

is not a symptom that can be measured or

quantified.

-35-
(Tr. 20-21). 

The issue this Court must decide is whether the ALJ’s stated

reasons are sufficient. In other words, is there a logical bridge

between the ALJ’s stated reasons and the conclusion that Lugo is not

fully credible? Lugo claims the ALJ’s stated reasons for finding him

less than fully credible are inadequate because the ALJ has claimed

discrepancies exist where they do not. 

First, the ALJ noted that Lugo’s abilities were greater than

those set forth in the mental status examination. ALJ Kramer is

referencing the mental status exam performed by Dr. Amdur in August

of 2011. Lugo notes that: “The ALJ makes that statement without

acknowledging, as did Dr. Brooks, that Plaintiff’s testimony was most

consistent with the latest mental status examination [meaning Dr.

Amdur’s report from August of 2011] and also the fact that pain and

a sleep disorder can cause mental decompensation.” (DE 11 at 23). 

Substantial evidence of record supports the ALJ’s conclusion that

Lugo’s demonstrated abilities were inconsistent with the mental status

exam performed by Dr. Amdur in August of 2011. While it is possible

that Lugo’s condition changed significantly between Dr. Walters’

report in June of 2010 and Dr. Amdur’s report in August of 2011, the

evidence is not so strong that the ALJ was precluded from relying on

this discrepancy in reaching his decision regarding Lugo’s

credibility. That Dr. Brooks conceded pain and sleep disorder can

cause mental decompensation does not demonstrate that is what happened

-36-
here. This Court might have reached a different conclusion, but that 

is not grounds for overturning the ALJ’s decision. See Farrell v.

Sullivan, 878 F.2d 985, 990 (7th Cir. 1989).

Next, Lugo takes issue with the ALJ’s opinion that Lugo’s having

only left-sided symptoms despite his diagnosis of bilateral cubital

tunnel syndrome reflects negatively on his credibility. According to

Lugo: “[t]he ALJ makes a giant leap to speculatively assert that in

this case, having only left-sided symptoms in light of a diagnosis of

bilateral cubital tunnel, is out of character and a basis to question

the validity of Plaintiff’s subjective complaints.” (DE 11 at 23). 

A review of the record shows that this leap finds at least some

support in the evidence. Dr. McKenna, a medical expert, testified at

length and explained that he found “it a little troubling that we have

symmetrical objective findings and asymmetrical subjective findings.” 

(Tr. 89). In formulating an RFC, Dr. McKenna indicated that he was

taking Lugo’s complaints of pain into account “to a certain extent,

but not .... at absolute 100 percent, full face value, on account of

the discrepancy.” (Tr. 90). The ALJ did not make reference to Dr.

McKenna’s testimony in making his credibility determination. His

opinion would have been stronger if he had, but in light of the

medical evidence, it cannot be said that the ALJ’s logic is

speculative or the “giant leap” that counsel describes. In light of

the evidence of record, this Court cannot say that ALJ Kramer’s

reliance on the discrepancy between the medical evidence of bilateral

-37-
cubital tunnel syndrome while symptoms were only unilateral was

erroneous. See Sienkiewicz v. Barnhart, 409 F.3d 798, 804 (7th Cir.

2005)(“An ALJ may not disregard an applicant’s subjective complaints

of pain simply because they are not fully supported by objective

medical evidence ...[b]ut a discrepancy between the degree of pain

claimed by the applicant and that suggested by medical records is

probative of exaggeration.”).

 The ALJ could have done a better job of annunciating his

reasoning, but because substantial evidence of record supports the

ALJ’s determination, this Court finds that the ALJ’s credibility

determination is not patently wrong. 

The ALJ’s Consideration of Lugo’s Mental Impairment

Lugo argues that the ALJ’s assessment of his depression was

erroneous and requires remand. The ALJ found that Lugo does suffer

from depression, but that it is non-severe. (Tr. 14-15). In so

finding, he chose to give little weight to the report of Dr. Amdur,

who concluded that Lugo was suffering from major depression so severe

that he would be unable to relate effectively with co-workers and

supervisors and unable to tolerate work stressors. (Tr. 14, 532-36). 

In essence, Lugo’s argument that the ALJ did not properly assess his

mental impairments amounts to a challenge to the ALJ’s rejection of

Dr. Amdur’s opinion. 

In determining that Lugo’s depression was not severe, ALJ Kramer

-38-
considered several factors. He noted that Lugo did not initially

allege any mental impairment when he applied for DIB. (Tr. 14). He

also noted Lugo’s history of psychological treatment, or lack thereof. 

(Id.). More specifically, the ALJ noted that Lugo sought therapy from

February through July of 2008 and was diagnosed with an adjustment

disorder with depressed mood. (Id.). The ALJ considered a

psychological consultative evaluation performed by Irene Walters,

Psy.D on June 29, 2010. (Id.). Dr. Walters did not diagnose Lugo

with any mental impairment and assigned him a Global Assessment of

Functioning (“GAF”) score of 65.12 Two months after Dr. Walters’

examination, on August 11, 2010, Dr. Thometz noted that Lugo had been

feeling anxious and depressed and recommended a psychological

consultation. (Tr. 455, 466). 

In August of 2011, Lugo saw Dr. Amdur for a psychiatric

evaluation. (Id.). The ALJ noted that Dr. Amdur’s report indicated

that Lugo had been experiencing depression for six months, and that

he reported no depression prior to his 2009 injury. The ALJ noted

that Dr. Amdur formulated his opinion after only a one-time visit and

that Lugo had not sought any other mental health treatment for his

depressive symptoms. (Tr. 14). The ALJ noted that Dr. Amdur found

that Lugo suffered from numerous extreme and marked limitations, but

12GAF is a scoring system for measuring an individual’s overall

functional capacity. A GAF of 65 would represent mild symptoms or some

impairment in social, occupational, or school functioning. Diagnostic and

Statistical Manual of Mental Disorders, DSM-IV-TR, 32-34 (4th ed. 2000).

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that there were no medical records that supported such severe

limitations. (Tr. 14-15). Specifically, the ALJ noted that:

As there are no records to support such severe

limitations and these opinions are based on a

one-time visit with the claimant, Dr. Amdur’s

opinions are given little weight. They are

inconsistent with the objective record and are

based primarily on the claimant’s subjective

allegations. However, giving the claimant the

significant benefit of the doubt, the undersigned

finds that he does suffer from depression, but

not to the degree indicated by Dr. Amdur (Exhibit

20F).

(Tr. 15). The ALJ further noted that, “the claimant’s medically

determinable mental impairment of depression does not cause more than

minimal limitation in the claimant’s ability to perform basic mental

work activities[.]” (Tr. 15).

Lugo’s counsel correctly points out that Dr. Amdur’s opinion

should not be rejected solely because he is a one-time examiner. 

After all, Dr. Walters also only examined Lugo once but her opinion

was not rejected by the ALJ. But, the length of treatment is one

valid consideration in determining what weight to give to a medical

opinion. In determining that Dr. Amdur’s opinion was entitled to

little weight, it was proper for ALJ Kramer’s to consider that Lugo

saw Dr. Amdur only once, along with other factors. Because ALJ Kramer

did not base his decision on the weight to be given Dr. Amdur’s

opinion on the nature of their treatment relationship alone, his

consideration of that factor was not error. 

Lugo’s counsel points out that Dr. Brooks, whose testimony the

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ALJ credited, admitted that an individual who is in pain and not

sleeping can experience mental decompensation. (Tr. 41-42). Dr.

Brooks did concede this, but the fact that this can occur does not

mean that it did occur here. Dr. Brooks did not opine that Lugo’s

condition had deteriorated due to pain and lack of sleep; he only

conceded that pain and lack of sleep can cause deterioration. 

Lugo’s counsel also points out that Dr. Amdur’s report was very

detailed, and that it is consistent with Dr. Thometz’ notes from

August 11, 2010, noting that Lugo was anxious and depressed and

recommending a psychological evaluation. (Tr. 455, 466). An ALJ need

not accept a report merely because it is detailed. And, as for Dr.

Thometz’ report that Lugo was anxious and depressed, this is not

necessarily inconsistent with the ALJ’s finding - the ALJ conceded

that Lugo suffered depression, albeit non-severe. There is a

logical bridge between the evidence and the ALJ’s decision to give Dr.

Amdur’s report little weight. While a different ALJ may have viewed

the evidence differently, this Court cannot say that ALJ Kramer

committed reversible error in evaluating Lugo’s mental impairments. 

CONCLUSION

For the reasons set forth above, the Commissioner of Social

Security’s final decision is AFFIRMED.

DATED: July 23, 2014 /s/RUDY LOZANO, Judge

United States District Court

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