DISCUSSION

L Standard of Review

Judicial review of the Commissioner's final decision is limited. The role of the reviewing
court is to determine whether substantial evidence in the record as a whole supports the
Commissioner's decision to deny benefits. Wolfe v. Shalala, 997 F.2d 321, 322 (7th Cir. 1993).
“The findings of the Secretary, as to any fact, if supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g). Substantial evidence means “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardsonv. Perales, 402US.
389, 401 (1971). The court must affirm the Commissioner’s decision if the decision is reasonably
drawn from the record and is supported by substantial evidence, even if some evidence may also
support the claimaint’s position, 42 U.S.C. § 405(p). “Because the Commissioner is responsible
for weighing the evidence, resolving conflicts and making independent findings of fact, this Court
may not decide the facts anew, re-weight the evidence or substitute its own judgment for that of the
Commissioner to decide whcther a claimant is or is not disabled.” Powers v. Apfel, 207 F.3d 431,
434-35 (7th Cir. 2000)(internal citations omitted),
IL. Disability Under the Social Security Act

To qualify for disability benefits under (he Act, a claimant must be disabled within the
meaning of the statute. The Act defines a disabled person as one who is unable to engage in any
substantial gainful activity by reason of medically determinable physical or mental impairment that
can be expected to result in death or that has Jasted or can be expected to Jast for a continuous period
of not less than twelve months. 42 U.S.C. § 423(d)(1)(A). To mect this definition, a claimant must
have a severe impairment that renders him unable to perform his “previous work or any substantial

gainful activity which exists in the national economy.” 20 C.F.R. § 404.1505. A physical or mental


CONCLUSION
The ALJ reasonably considered and rejected Sullivan’s disability claim based on an appropriate
determination of his credibility. Pursuant to 42 U.S.C. § 405(g), the Commissioner’s final decision
denying social security disability benefits is affirmed.

June 6, 2003 ENTER:

Suzanng B. Conlon
United States District Judge



alleged depression did not meet or medically equal the requirements of medical listing 12.04, for
depression.” R. 16, See also R. 20 (“Although Dr. Cavenagh is not a psychiatrist, he did indicate
that in his opinion, the record did not support a finding that the claimant’s depression and/or anxiety
met or equaled the requirements of a listed impairment”). Contrary to the ALJ’s determination, Dr.
Cavenagh never offered an unequivocal opinion regarding Sullivan’s depression. Rather, he
testified:

The testimony referred today seems to substantiate that consultation with Dr.

Conra[n]. There is just a slight disparity between different treating physicians as to

the severity. Dr. Conra[n]’s impression, I would have to say that his concept would

meet the listings for affective disorders, 12.04, Al, A, E, F, and H, B1, 2, 3, and 4

[phonetic].
eee

That conclusion apparently is not shared entirely by Dr. [Gouttama] so, that
discrepancy on the medical evidence.

R. 60. Nevertheless, the ALJ’s misunderstanding of Dr. Cavenagh’s testimony does not warrant
reversal,

As an initial matter, a treating physician’s report must be given controlling weight over the
report of a consulting examiner. 20 C.F.R. § 404.1527(d)(2). Dr. Gouttama treated Sullivan once
a month for one year. R. 253-270. In contrast, Dr. Conran saw Sullivan once for forly-five minutes
at the request of the Commissioner. R. 211-214. On this basis alone, the ALJ was entitled to give
more weight to Dr. Goutiama’s assessment than to the report prepared by Dr. Conran.

Moreover, medical evidence may be discounted if'it is internally inconsistent or inconsistent
with other evidence. Knight vy. Chater, 55 ¥.3d 309, 313 (7th Cir. 1995). As Dr. Cavenagh pointed
out, Dr. Conran’s report was inconsistent with Dr. Gouttama’s treatment notes. R. 60. On
September 27, 2001, Dr. Conran diagnosed Sullivan with recurrent major depression with some
suicidal ideation. R. 211-14. In contrast, Dr. Gouttama found Sullivan to be “calm and friendly”

with “no depression/anxiety” during this same time period. R. 264-267, Indeed, Dr. Gouttama

6


impairment is “an impairment that results from anatomical, physiological abnormalities which arc
demonstrable by medically acceptable clinical laboratory diagnostic techniques.” 42 U.S.C. §
423(d)(3). In situations where a mental impairment exists, the degree of functional loss resulting
from the mental impairment must be determined.

‘The Act requires the factfinder to follow a five-step process to determine whether a claimant
is disabled: (1) whether the claimant is currently employed; (2) whether he has a severe impairment;
(3) whether his impairment meets or equals one listed by the Commissioner; (4) whether the
claimant can perform his past work; and (5) whether the claimant is capable of performing any work
in the national economy. Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000), Once the claimant
has satisfied steps one and two, he will automatically be found disabled if he suffers from a listed
impairment (step three). If a claimant satisfies steps one and two but not siep three, the claimant
must establish step four. If step four is satisfied, the burden shifts to the Commissioncr to satisfy
step five. Knight v. Chater, 55 F.3d 309, 313 (7th Cir. 1995),

I. = The ALJ’s Decision

Sullivan argues the ALJ’s findings regarding his mental impairment are not supported by
substantial evidence. Specifically, Sullivan claims the AT.J misinterpreted Dr. Cavenagh’s opinion
and improperly discounted Dr. Conran’s report in finding that his depression did not mect the listing
level for severity under step three. Sullivan further claims the ALJ improperly failed to consider his
global assessment of functioning score in determining he is capable of performing any work in the
national economy under step five.

A. Step Three
In his decision, the ALJ noted that “Dr. Cavenagh testified that his review of the objective

evidence alone, not considering the claimant’s subjective testimony, indicated that the claimant’s



Conran’s reliance on Sullivan’s subjective complaints, the ALJ did not err in discounting Dr.
Conran’s report in favor of Dr. Gouttama’s assessment. See Diaz v. Chater, 55 F.3d 300, 308 (7th
Cir, 1995)(ALJ may properly discount diagnosis based on discredited subjective testimony).
B, Step Five

Nor did the ALJ err in determining Sullivan is capable of performing work in the national
economy under step five. At the fifth step, the ALJ must consider the claimant’s physical and mental
impairments, age, education and work experience. 20 C.F.R. §§ 404.1520(f), 416.920(f). In
reaching his decision, the ALJ relied on Bobrowski’s determination that a hypothetical worker of
Sullivan’s age, education and work history could perform a number of light, unskilled jobs, including
hand packager, assembly work or product inspector. R. 22-23. The ALJ properly rejected
Bobrowski’s conclusions based on Sullivan’s discredited testimony. Diaz, 55 F.3d at 308.

Nevertheless, Sullivan claims the ALJ failed to consider his global assessment of functioning
(“GAF”) score. “The ALJ is not required to comment on every piece of evidence presented.” Bailey
v, Massanari, No, 00 C 7506, 2001 WL 800068, at *5 (N.D. Ill. July 10,2001). To the contrary, the
court must give “the opinion a commonsensical reading rather than nitpicking at it.” Johnson v.
Apfel, 189 F.3d 561, 564 (7th Cir. 1999). Sullivan fails to explain how the consideration of a two-
year old GAF score by an unknown doctor would have changed the ALJ’s decision given his
rejection of Sullivan’s subjective testimony. R. 197, 199. Under these circumstances, Sullivan fails
to demonstrate that the ALJ’s factual findings were unsupported by substantial evidence in the

record,



Minute Order Ferm (96/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge
ov Magistrate Judge

Suzanne B. Conlon

Sitting Judge if Other
than Assigned Judge

Mail AQ 450 form.

Notified counsel by telephone.

Dockeling to mail notices,

Copy to judge/magistrate judge.

CB

courtroom

deputy's
initials

2s

Landa Jouisia sn

Wark

RY 9~ NIC EU

CASE NUMBER 03 C 1331 DATE 6/6/2003
CASE PATRICK E. SULLIVAN vs. JO ANNE B. BARNHART
TITLE
Tn the following box (a) indicate the party filing the motion, ¢.g.. pluintiff, defendant. 3d party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented,]
DOCKET ENTRY:
qd) oO Filed motion of | use listing in “Motion” box above.)
(2) Oo Brief in support of motion due
(3) Oo Answer brief to motion due . Reply to answer brief due.
(4) oO Ruling/Hearing on setfor__ at
(5) a Status hearing[held/continued to] [set for/re-set tor] on | set for at _.
(6) o Pretrial conference[held/continued to] [set for/re-set for] on set for _ at
(7) Oo ‘Trialfset for/re-sct for] on at .
(8) Oo [Bench/Jury trial] [Hearing] held/continued to _at
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreemenVpursuant to]
OFRCP4(m) O Local Rule 41.1 OFRCP41(aX(1) OO PRCP41(a)(2).
(0) «x (Other docket entry} Plaintiff's motion for summary judgment [8-1] is denied. ENTER
MEMORANDUM OPINION AND ORDER.

(il) olf [For further detail see order attached to the original minute order.]

No notices required, advised in open cour. Document

No notices required. » Mipnner

number of notices 2 .

| Notices mailed by judge’s staff.

NUN 9 9003

date dogketed

docketing deputy initiate

603

date sled notice

rw

Oe

rd Gadd

central Clerk's Office

mailing deputy initials

[D



continually found Sullivan to be friendly and cooperative with no indications of depression or
anxiety through his last report dated July 25, 2002. R. 254-270. Dr. Cavenagh testified he was
unable to rationalize the doctors’ differing assessments. R. 57-58.

The ALJ rationalized the difference by rejecting Sullivan’s testimony as not credible. As the
ALI pointed out, Dr, Conran’s report was “based largely upon what [Sullivan] told [him].” R. 20.
The court will not upset an ALI’s credibility determination unless “patently wrong” because an ALJ
“4g in the best position to observe witnesses.” Powers, 207 F.3d at 435.

In his motion, Sullivan does not dispute the bases for the ALJ’s credibility determination.
Indeed, the AL.J’s decision to discredit Sullivan’s testimony is supported by substantial evidence.
The ALJ provided three reasons for rejecting Sullivan’s testimony. First, Sullivan testified that he
does virtually nothing and is incapable of being around others. Nevertheless, he reinjured his back
doing voluntecr work in December 2001. R. 21. Second, Sullivan testified that he had not used
drugs in 25 years and had a beer “maybe once a month.” R. 58-59. This testimony dircctly
contradicts Sullivan’s earlier testimony before the Commissioner, R. 72-76. In denying Sullivan
social security benefits in 1997, the ALJ specifically found that Sullivan’s drug and alcohol abuse,
rather than depression, prevented him from performing working from February 2, 1993 through
August 5, 1996. Jd. Third, Sullivan’s testimony regarding the severe nature of his depression is
belied not only by Dr. Gouttama’s report, but also by the absence of any hospitalization reports for
his alleged depression or anxicty attacks. The ALJ is permitted to consider the lack of medical
evidence as probative of the claimant’s credibility. See Powers, 207 F.3d at 435 (“The discrepancy
between the degree of pain attested to by the witness and that suggested by the medical evidence is
probative that the witness may be exaggcrating [his| condition”). Based on this record, the ALJ was

not patently wrong in discrediting Sullivan’s testimony. Powers, 207 F.3d at 435, In light of Dr.



the severity, Dr. Conra[n]’s impression, I would have to say that his concept would
mect the listings for affective disorders, 12.04, Al, A, E, I, and H, Bl, 2, 3, and 4
{phonetic].

a KE

That conclusion apparently is not shared entirely by Dr. [Gouttama] so, that
discrepancy on the medical evidence.

R. 60.

Sullivan was evaluated by Dr. Conran on September 27, 2001. R. 211-214. After 45
minutes, Dr, Conran diagnosed Sullivan as having recurrent major depression with suicidal ideation.
Jd. Shortly thereafter, Dr. Gouttama found Sullivan to be “calm and friendly” with “no
depression/anxiety.” R. 264-267. In December 2001, Dr. Gouttama noted Sullivan “reinjured his
back recently while he was doing volunteer work.” R. 266. From January 2002 through his last
report dated August 13, 2002, Dr. Gouttama found Sullivan to be friendly and cooperative with no
indications of depression or anxiety. R. 254-263.

U1. Vocational Expert’s Testimony

Vocational expert Timothy Bobrowski testified about Sullivan’s residual functional capacity.
R. 62-66, Residual functional capacity is a measure of what an individual can do despite limitations
imposed by his impairments. 20 C.F.R. §§ 404.1545(a), 416.945(a). Bobrowski determined a
hypothetical worker of Sullivan’s age, education and work history could perform a number of
unskilled jobs, including hand packager, assembly work or product inspector. R. 64-65. Bobrowski
noted that all jobs would be eliminated for a hypothetical worker with Sullivan’s alleged antisocial

tendencics. R. 65-66.


STATEMENT OF FACTS
1. Sullivan’s Testimony

Sullivan, who is 47 years old, has worked only for short periods of time over the last fifteen
years. R. 41-42, During the hearing, Sullivan could not remember the specifics of his previous
employment. Jd. According to Sullivan, his medical conditions prevent him from working. R. 46.
Sullivan suffers from a back condition, [epatitis C and depression. R. 57. Sullivan challenges the
ALJ's findings only as to his alleged mental impairment.

At the hearing, Sullivan testified that he stays in the house and docs not socialize. R.41. He
sleeps 16 hours a day, suffers from frequent panic or anxicty attacks and has suicidal thoughts. R.
51-52, 54. Sullivan claims he does not like being around other people and would rather be alone.
R. 46, Sullivan sces a therapist once or twice a week for counseling and psychiatrist once a month
for medication, R. 47-48.

During the hearing, the ALJ specifically questioned Sullivan regarding his drug and alcohol
use. R. 58-60, Sullivan testified he had not used drugs for 25 years and had a beer “maybe once
amonth.” R. 58-59.

Il. Medical Expert’s Testimony

In reaching his decision, the ALJ relied upon Dr. Cavenagh’s expert opinion, Dr. Cavenagh
reviewed Sullivan’s medical records, including several reports prepared at the Commissioner’s
request. R. 56-57. Specifically, Dr. Cavenagh relied on a report prepared by Dr. John F. Conran at
the Commissioner’s request and a psychiatric cvaluation completed by Sullivan’s treating
psychiatrist, Dr. Gouttama. R. 57-58. During the hearing, Dr. Cavenagh pointed out that Dr.

Conran’s assessment was inconsistent with Dr, Gouttama’s opinion:

[Sullivan’s] testimony referred today scems to substantiate that consultation with Dr.
Conra[n]. Thete is just a slight disparity between different treating physicians as to



DOCKETED

IN THE UNITED STATES DISTRICT COURT
JUN 9 2003

FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

PATRICK E. SULLIVAN,
Plaintiff, No. 03 € 1331
v. Suzanne B. Conlon, Judge

JO ANNE B. BARNHART, Commissioner
of Social Security,

Defendant.

SS SS SS SS

MEMORANDUM OPINION AND ORDER
Patrick B. Sullivan (“Sullivan”) seeks judicial review ofa final decision of the Commissioner
of Social Security (“the Commissioner”) denying social security disability benefits pursuant to Title
Tl of the Social Security Act (“the Act”), 42 U.S.C. § 405(g). Sullivan moves for summary judgment
pursuant to Fed. R. Civ. P. 56. The Commissioner fails to respond.
PROCEDURAL BACKGROUND
Sullivan filed an application for disability insurance benefits on August 8, 2000. The
Commissioner denied his claim and Sullivan timely requested a hearing before an Administrative
Law Judge (“ALJ”). On October 4, 2002, the ALJ held a hearing where Sullivan, medical expert
Dr. John B. Cavenagh and vocational expert Timothy Bobrowski testified. The ALJ found Sullivan
not disabled and denied his application. The Appeals Council declined to review the case, rendering

the AT.J’s decision final. 20 C.F.R. § 404.955. Sullivan now seeks judicial review.