disorder, (R, at 18.) Additionally, the diagnosis reflects Plaintiff's subjective complaints of low
back pain, which the ALJ took into consideration. (L.g., Id.) With respect to the physical
therapy records, the ALJ noted that Plaintiff had reccived physical therapy, but not any
aggressive treatment. (R, al 18.) The ALJ considered these lines of evidence, as she is required
to do, but she is not required to discuss every piece of evidence in writing, as long as the
reviewing court is able to trace the path of her reasoning. See Diaz v. Chater, 35 F.3d 300,
307-08 (7th Cir. 1995).

Next, Plaintiff faults the ALJ for not discussing three separate RFC's completed by
non-treating, non-cxamining physicians. (PIf.'s Br. at 13-14,) The first RFC (August 4, 1998)
found that Plaintiff may "occasionally" lift and/or carry up to 20 pounds and "frequently" lift
and/or carry 10 pounds which is consistent with light work.’ (R. at 186.) The physician noted
that Plaintiffs allegations were consistent with the medical evidence. (R. at 190.) The second
RFC completed on January 28, 1999, found that Plaintiff may "occasionally" lift and/or carry up
to 50 pounds, and "frequently" lift and/or carry 25 pounds which is consistent with medium
work,’ (R. at 221.) Completed on May 7, 1999, the third RFC found that Plaintiff had no
exertional limitations (i.e., no limitations on her ability to lift and carry, stand and walk, and sit),
but should only occasionally climb and stoop. (R. at 229-30.) Plaintiff claims that the ALJ had a

duty to resolve the inconsistencies between these three RFC determinations, possibly by

> Light work involves lifting no more than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds, 20 C.F.R. § 404,1567(b).

* Medium work involves lifting no more than 50 pounds at a time with frequent lifting or
carrying of objects weighing up to 25 pounds, 20 C.F.R, § 404.1567(c). A claimant who is able
to perform medium work is also deemed able to perform light and sedentary work. Id.

-19-



the reports, provided countcr-arguments and poinled to supporting evidence in the record, and
requested no further right to rebut the evidence. In fact, it requests a decision as soon as possible.
We find her argument that she did not know the ALJ might interpret the reports against her to be
unpersuasive. See alse Schmidt v. Callahan, 995 I’. Supp. 869, 881-82 (N.D. Ill. 1998) (waiver
of right to request subpoena and cross-cxamine can be inferred depending on circumstances),
aff'd Schmidt, 201 F.3d at 973. Plaintiff's rights were not violated by the ALJ's apparent failure
to inform her attorney that she had the right to rcbut the evidence or require a supplemental

hearing.

Vv. Conclusion
For the above reasons, the Court affirms the Commissioner's final decision, The
Commissioner's motion for summary judgment is therefore granted, and Plaintiff's motion for
summary judgment is denied.

ENTER ORDER:

Deak, (CL iene

MARTIN C. ASHMAN
Dated: June 28, 2004. United States Magistrate Judge

- 40 -



Under 42 U.S.C. § 405(b)(1), when a hearing is held, the disability determination must be
made "on the basis of evidence adduced at the hearing." See also Lonzollo v, Weinberger, $34
F.2d 712, 714 (7th Cir. 1976) (noting same in context of Appeals Council). Post-hearing
evidence is therefore afforded spccial treatment (o ensure that the claimant is given the
opportunity to respond, rebut, and request cross-examination. The Hearings, Appeals and
Litigation Law Manual (HALLEX) indicates that proffer of posthearing evidence is required
unless the claimant has knowingly waived her right to examine the evidence or the ALJ proposes
to issue a fully favorable decision. IIALLEX |-2-7-30° The proffer letter must give the claimant
a deadline to respond to the evidence and to request a supplemental hearing and the opportunity
lo cross-examine the author of the evidence, Id. Where the ALJ enters medical reports into the
record, the claimant should also be informed of her right to submit the new evidence to a treating
source and submit any comments from the treating source to the ALJ. Id. See also 1-2-7-91
(providing sample of a lettcr to a claimant's representative enclosing a copy of new evidence).

We first note that HALLEX does not carry the authority of law. The purpose of
HALLEX is to set forth guidelines and internal procedures for the Office of Hearings and
Appeals staff. ITALLEX 1-1-0-1; Moore y, Apfel, 216 F.3d 864, 869 (9th Cir. 2000) (noting that

TIALLEX is not binding where it does not reflect an underlying regulation); Blevins-Moore v.

° We find that although the form proffer letter suggested by HALLEX is not a part of the
record, the evidence was in effect proffered to Plaintiff's counsel because it was provided to him
and he appeared to have responded within a reasonable time frame. See Oyen v. Shalala, 865
F, Supp. 497, 509 n.16 (N.D. Ill. 1994) (noting that "proffer" of post-hearing evidence can be
inferred from circumstances). Thus, we find that section I-2-7-15 relied upon by Plaintiff is
inapplicable. Section 1-2-7-15 applies where the claimant has waived the right, on the record or
in writing, to examine post-hearing evidence. Plaintiff did not waive her right to review the
evidence, and therefore the AI.J profiered the evidence to her attorney.

-36-



a vocational expert. Next she argues that the medical evidence does not support a finding that
Plaintiff is able to perform unskilled medium work. She also argues that the ALJ erred by not
providing a Mental Residual Functional Capacity Assessment. Plaintiff then argues that the ALJ
erred in his credibility determination. Finally, she argues that the ALJ committed legal crror by
depriving Plaintiff the opportunity to cross-examine the author of adverse post-hearing evidence.

Each of these arguments will be addressed in turn.

A. The ALJ Did Not Err By Failing To Solicit Testimony From a
Vocational Expert at the Hearing.

Plaintiff first argues that because she suffered from significant nonexertional
impairments, the ALJ was required to solicit a vocational expert's testimony at the hearing to
determine if a significant number of jobs cxisted in the national economy which Plaintiff can
perform. She asserts that the ALJ's reliance on the Medical-Vocational Guidelines, or "grid,"
found at 20 C.F.R. Part 404, Subpart P, Appendix 2, to make the determination that Plaintiff was
not disabled at step five was error.

An exertional limitation is an impairment-caused limitation which affects the claimant's
capability to perform an exertional activity, i.e. one of the primary strength activities such as
standing, sitting, walking, or lifling. SSR 83-10. A nonexertional impairment is any impairment
which does not directly affect any of the exertional activities, and may include impairments
which affect the mind, vision, hearing and speech. Id. Difficulty maintaining attention or
concentrating is a nonexcrtional impairment, 20 C.F.R. § 416.969a(c)(1)(ii). Use of the grid is

appropriate where the claimant suffers only from exertional limitations, and it provides a

-~13-



the report is whether the report is internally consistent. 20 C.F.R. § 404.1519p(a)(2). Only if the
report is inadequate or incomplete must the ALJ recontact the consulting examiner. 20 C.F.R.
§ 404.1519(p)(b), The ALJ in this case properly reviewed Dr. Long's report and separated out
information based on Plaintiff's subjective complaints as opposed to Dr. Long's opinion,
determined what weight it should be given, and explained her reasoning in her opinion, We find
no error on this point.

Finally, Plaintiff argues that the ALJ's faiJure to discuss Dr. Altman's report of
January 16, 1999, violates 20 C.F.R. § 404.1519p and SSR 96-6p, Dr. Altman found that
Plaintiff exhibited major depression with psychosis and a pain disorder, but when rating
Plaintiff's impairment severity on the PRTF, found only moderate restrictions of activities of
daily living, moderate difficulties in maintaining social functioning, and only seldom deficiencies
of concentration, persistence or pace. (R. at 205, 209.) Dr. Altman's mental RFC assessment
form reports that Plaintiff was only moderately limited in the ability to perform activities within a
schedule, maintain regular attendance, and be punctual within customary tolerance. (R. at 211.)
She was not limited in any other area dealing with sustained concentration and persistence. (Id.)
Dr. Altman also noted that Plaintiff exhibited "questionable credibility" and found that she was
capable of substantial gainful activity. (R. at 213.) We do not find either of these two forms to
be internally inconsistent, and do not find the reports (which analyze different questions as
Plaintiff acknowledges on page 5 of her reply brief) to be so inconsistent with each other as to
require a revised report under 20 C.F.R. § 404.1519p(b). Dr. Altman found that Plaintiff was
impaired, but when determining the severity of her impairments, found on both reports that she

was only moderately impaired in certain limited areas. This is not inconsistent with her finding

-23-



Copies have been mailed to:

MARK D, DeBOFSKY, Esq.

Daley, DeBofsky & Bryant
One North LaSalle Street
Suite 3800

Chicago, IL 60602

Attorney for Plaintiff

MR. EDWARD J. KRISTOF

Special Assistant United States Attorncy
200 West Adams Street

30" Floor

Chicago, IL. 60606

Attorney for Defendant



noted that "even though the pain has been present lor a year, she still has not sought medication
treatment until now." (Id.) ‘The diagnosis was functional low back pain. (Id.)

In July of 1998, Stanley Rabinowitz, M.D., performed a consultative examination of
Plaintiff. (R. at 181-83.) Plaintiff's chief complaint was back pain, although she was able to
stand, sit and walk for short periods of time, and only took over-the-counter Motrin for her pain.
(R. at 181.) Dr. Rabinowitz noted that a MRI of her lower back had shown a "frozen disc,"
although it appears that he did not review the MRI himself. (Id.) The ranges of motion in
Plaintiff's lumbar and cervical spine were limited by her complaints of pain. (R. at 182.) She
was able to ambulate around the exam room without an assistive device, but had mild difficulty
getting on and off the examining table and could not do heel and toe walking or squatting. (R. at
183.) The diagnosis was chronic lumbar myofascial pain syndrome. (Id.)

Plaintiff visited the Orthopedic and Occupational Rehabilitation Center of St. James
Center in September of 1998. (R. at 269-73.) These records were submitted after the hearing in
front of the ALJ. Plaintiff reported that she was suffering from low back pain and was taking
Naprosyn and Flexeril. (R. at 269.) The physical therapist recommended physical therapy three
times a weck, massage, postural correction, and strengthening exercises. (R. at 270.)

In December 1998, Jerry Rodos, D.O., performed a consultative psychological
examination of Plaintiff. (R. at 197-201.) She told him that her pain problems stemmed from
(he March 1996 accident in which she suffered a closed head injury and damage to her thumb as
well as a back injury. (R. at 198.) She was taking non-prescription Motrin for her pain. (Id.)
Plaintiff indicated that she took naps and watched television all day. (1d.) She reported feelings

of helplessness, hopelessness, and sadness. (Id,) Plaintiff appeared to have difficulty with

-4-



that Plaintiff is malingering is only one of several factors that the ALJ properly took into account
in assessing Plaintiff's credibility. The Court notcs additionally that the pain a claimant fecls can
have psychological as well as physical causes and the AT.J cannot discount the claimant's
complaints of pain merely because they have psychological origins. See ef Carradine y.
Barnhart, 360 F.3d 751, 754 (7th Cir, 2004) (noting that the fact that pain may have a purely
psychological source does not disentitle the applicant to benefits). Here, the ALJ did not
completely discount Plaintiff's complaints of pain, rather she noted that Plaintiff suffered from a
severe impairment due to her back and mental problems. The ALJ was still obligated, as she did,
to assess Plaintiff's subjective complaints of pain, regardless of the physical or psychological
source of her pain. The credibility question remains, and must be answered in order to determine
the severity of her impairments, and whether they so severe that Plaintiff is not able to work.

As a final note, we find that the ALJ's credibility determination did not show a personal
bias or lack of neutrality, Her word choices that Plaintiff did not "bother" to seek medical
attention and for a substantial amount of time "only" took over-the-counter medication indicate a
proper evaluation of the evidence pursuant to SSR 96-7p and do not reflect her “personal value
judgments" as argued by Plaintiff. Additionally, the ALJ's use of the word "alleged" when
referring to Plaintiff's mental impairments, (R. at 21), is inconsequential, given that she found
thai Plaintiff had severe impairments duc to her mild depression and a personality disorder, (R. at
18). Finally, Plaintiff argues that the ALJ did not place great enough weight on the corroborating
testimony of Plaintiff's caretaker. However, it is not for the Court to reweigh the evidence or
substitute our judgment for that of the ALJ. See Jones, 10 F.3d at 523. Ms. Jennings's testimony

merely reflected Plaintiff's subjective complaints of pain and the ALJ was not required to

-34-



discussing the qualifications of the consultants. The reviewing physicians, however, are highly
qualified, and their respective qualifications is only one of the many factors that may be used to
determine the weight to which an opinion is entitled, SSR 96-6p. The opinions can only be
given weight insofar as they arc supported by the medical evidence in the record. See SSR
96-6p. In this case, the second RFC assessment supports the ALJ's finding that Plainalf can
perform medium work, and the third RFC does not help Plaintiff's case in the slightest because it
finds that she has no exertional limitations. Even the first RFC determination concludes that
Plaintiff retains the residual functional capacity to perform light work. Defendant points out, and
Plaintiff does not dispute, that if Plaintiff were capable of performing only light work, the ALJ
could have properly applied grid rule 202.20, which would also have supported a finding that
Plaintiff was not disabled, See Diaz, 55 F.3d at 30 (finding that claimant's ability to do sedentary
work was supported by substantial evidence and required a finding of not disabled). As is made
clear by SSR 96-6p, the ALJ must look to the medical evidence as a whole, which we have
determined that she did. Thus, the AT.J's apparent failure to reconcile these three RF'C’s (which
do not cven support Plaintiff's claim that she is disabled) does not mean that the ultimate RFC
determination was not based on substantial evidence.

Plaintiff then argues that the AT.J's finding that there was "minimal" evidence to support
the severity of Plaintiff's back impairments obligated the ALJ to re-contact Plaintiff's treating
physicians to seek additional evidence or clarification and to order Plaintiff to undergo another

consultative exam. Plaintiff overstates what is required by the regulations.’ Plaintiff must

* While Plaintiff was granted leave to file a brief in excess of fifteen pages, several of her
arguments could have been made more concisely or not at all.

-20-



and continuing basis.” 20 C.F.R. § 404.1545(c). Much of the information and evidence that is
used to determine whether a claimant's impairment meets or equals a listing is also used to
determine the mental RFC. SSR 85-16 ("in determining the impact of a mental disorder on an
individual's capacities, essentially the same impairment-related medical and nonmedical
information is considered to determine whether the mental disorder mcets listing severity as is
considered to determine whether the mental impairment is of lesser severity, yet diminishes the
individual's RFC"); SSR 96-8p (the PRT form summarizes various functions that must be
evaluated in a more detailed assessment to determine mental RFC), The determination of mental
RFC, however, focuses on the claimant's work-related abilities. 20 C.F.R. Pt. 404, Subpt. P,
App. 1, § 12.00 ("RFC is a multidimensional description of the work-related abilities you retain
in spite of your medical impairments"). ‘he RFC assessment, therefore, complements the
listings evaluation by requiring consideration of an expanded list of work-related capacities, 7d.
The capacities evaluated include "the ability to understand, to carry out and remember
instructions, and to respond appropriately to supervision, coworkers, and customary work
pressurcs in a work setting.” SSR 85-16 (citing 20 C.F.R. § 404,1545(c)). Evidence to be
considered includes the history, findings and observations from medical sources and reports of
activities of daily living and work activity. [d.

When determining Plaintiff's RFC, the ALJ separately considered her mental and physical
impairments. As noted by the regulations, parts of the assessment of whether Plaintiff's
impairments met any listing level impairment coincide with the mental RFC assessment. In this
regard, the ALJ noted that Plaintiff only exhibited slight restrictions in the activitics of daily

living as she can care for her personal needs, drive, and perform light household chores. (R. at

-26-



discuss reasons for rejecting claimant's wife's testimony because the ALJ discussed the issues
raised by the wife's testimony in the decision), Furthermore, there is no reason to think that the
ALJ would have come to a different conclusion had she mentioned Ms. Jennings's testimony
because it is clear that the ALJ properly rejected Plaintiff's claims of debilitating pain, as will be
discussed below.

Plaintiff then turns her attention to the ALJ's assessment of Plaintiff's mental
impairments. (PIf.'s Br. at 15-17.) Plaintiff complains that the ALJ failed to resolve an
inconsistency in Dr. Long's mental RFC assessment, namely, that the MRFC assessment found
that Plaintiff had a poor or no ability in virtually all occupational areas assessed, (R. at 282),
while Dr, Long's narrative report concluded that Plaintiff could perform simple repctitive tasks
under supervision, (R. at 281). First, as the AT.J correctly noted, the MRFC form clearly
reflected Plaintiff's subjective complaints about her inability to perform occupational
adjustments. (R. at 282.) Dr. Long's narrative report, on the other hand, notes his inability to
find a medical basis for Plaintiff's complaints, states that she does not clearly present as having a
severe mental illness, and concludes that she can perform simple repetitive tasks. (R. at 281.)
The fact that Plaintiffs complaints do not coincide with Dr. Long's assessment of her abilities
does not mean that the report is internally inconsistent. Rather, it indicates that Dr. Long
evaluated the extensive evidence in front of him, including the psychological tests that were
performed, and came to his own conclusion about the extent of Plaintiff's limitations. Next,
Plaintiff has again overstated the regulations. Under the regulations, the ALJ is required to
teview the report of the consultative examination to determine whether it furnishes the Tequested

information. 20 C.F.R. § 404.1519p(a). One of the various factors to be considered in reviewing

-22-


separately discuss specific rcasons for rejecting her testimony because the issues raised by

Ms, Jennings were discussed when the ALJ discussed Plaintiff's testimony. See Herron, 19 F.3d
at 337 (ALJ did not err in failing to mention reasons for rejecting claimant's wife's (estimony
because ALJ discussed the issues raised by the wife's testimony in the decision). The ALI's
finding that Plaintiff was not credible and that her mental impairments only resulted in slight

restrictions of activities of daily living is supported by the substantial weight of the cvidence.

E. The ALJ's Treatment of the Post-Hearing Evidence Did Not
Deprive Plaintiff of Her Due Process Rights.

Plaintiff's final argument stems from the submission of post-hearing evidence. After the
hearing, at Plaintiff's attorney's request, the ALJ sent Plaintilf to Dr. Long for Rorschach and
MMPI-II tests. (R. at 79.) ‘The results were reviewed by Dr. Marquis, who concluded that there
was no psychiatric reason why Plainti{f could not return to some type of gainful employment.

(R. at 289.) Plaintiff's atlorney reviewed the additional evidence and wrote a letter to the ALI
arguing that the evidence further supported a finding that Plaintiff had met her burden of showing
she cannot perform past work. (R. at 290.) Plaintiff now argues that her due process rights were
violated because she did not know that the ALJ would interpret the post-hearing evidence against
her, and she was not given the opportunity to request a supplemental hearing to cross-examine
the author of the evidence. ‘The record indicates, however, that Plaintiff was given a meaningful
opportunity to respond to and rebut the additional evidence, that she waived any further right to

do so, and therefore her due process rights were not violated.

-35-



the fair ability to remember and carry out complex job instructions but a good ability to
understand, remember and carry out simple job instructions even though she had a poor ability to
behave in an cmotionally stable manner, relate predictably in social situations, and demonstrate
reliability. (R. at 281.) Dr. Marquis concluded that the record did not support a finding of more
than a mild to moderate impairment in her activities of daily living or social functioning. (R. at
288.) He could not find a psychiatric reason why Plaintiff would not be able to return to gainful
employment. There is no evidence that Plaintifl's nonexertional limitations were sufficiently
severe as to require the testimony of a VE, and the ALJ's decision is supported by substantial
evidence.

Plaintiff also faults the ALJ's finding that she retained the RFC to perform "simple,
unskilled medium work" because she claims that the use of the word "simple" further erodes the
occupational base necessitating the testimony of a VE. We agree with Defendant that "simple" is
a redundancy in that context that refers to "unskilled work.” "Unskilled work," by its definition,
“is work which needs litile or no judgment to do simple duties that can be leamed on the job ina
short period of time." SSR 83-10 (cmphasis added). Unskilled work usually can be learned in
thirty days or less, 20 C.P-R. § 404.1568(a); SSR 83-10. We agree that "simple, unskilled" work
does not indicate the presence of a limitation which would preclude application of the grid where
the claimant is already limited to unskilled work and does not further limit the kinds of jobs that
Plaintiff could perform. See Jones v. Massanari, No. 01 ¢ 0024, 2001 WL 34382025, at *14 0.4
(W.D. Wisc. Oct, 18, 2001) (noting that "simple," "unskilled" and "no more than 3 or 4

instructions" appeared to be redundant).

-17-



disruptions of persistence and pace in a work setling. (R. at 64.) Dr. Marquis reviewed

Dr, Long's report, and noted that judging from Plaintiff's responses it was possible that she either
had an organic brain syndrome (of which there was no evidence) or that she was trying to make
things seem worse than they were. (Id.)

After the hearing Dr. Marquis reviewed and analyzed Dr. Long's report of his follow-up
consultative psychological examination with Plaintilf. (R. at 287-89.) He noted that the new
evidence did not help a great deal in clarifying either the category of Plaintiff's impairment or its
severity, (R, at 287.) Dr. Marquis noted that the results of Plaintiffs MMPI-II test were invalid
and suggestive of malingering as well as serious adjustment disorder. (Id.) Although some of
Plaintiff's responses were suggestive of severe psychopathology, the results of the Rorschach did
not indicate any evidence of psychosis. (Id.) Dr, Marquis also found it significant that both
orthopedic and mental health professionals could not explain how the 1996 accident could yield
the degree of depression and severity of impairment of which Plaintiff complained. (R. at 288.)
Dr. Marquis opined that Plaintiff might have an adjustment disorder with depressed mood and
probably does have a diagnosable personality disorder on Axis Il. (Id.) However, the record,
other than Plaintiff's own complaints, did not support a finding of more than a mild to moderate
impairment in her activities of daily living or in her social functioning. (Id.) She should be able
to perform at Icast simple unskilled tasks. (1d.) Overall, Dr. Marquis could not find a psychiatric

Teason why she would not be able to return to gainful employment. (R. at 289.)



severe pain and did not support her complaints of severe pain); 20 C.F.R. § 404.1529(c)(iv).
First, as correctly noted by the ALJ, for much of the record Plaintiff primarily used
over-the-counter pain medication to treat her back pain. Next, she also testified at the hearing
that she had taken Naprelan samples the morning of the hearing,’ (R. at 61.) Naprelan is a
nonsteroidal anti-inflammatory drug with analgesic propertics. Physician's Desk Reference
(2004) at 1227. It is used to treat rheumatoid arthritis, osteoarthritis, and bursitis. It is also used
to treat mild to moderate pain. Id. at 1228. Plaintiff testified that afler the accident, the
Naprosyn (Naprelan) would "knock [the pain] out." (R. at 52.) Thus, even the pain medication
given to Plaintiff by her physician docs not support her complaints of severe pain. As noted in
Powers, 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 exaggerating her condition. For the
hearing officer to rely on this as evidence of a lack of complete candor cannot be deemed
patently wrong." 207 F.3d at 435-36.

Plaintiff also finds fault with the ALJ's notation that "malingcring has becn suggested on
numerous occasions” when assessing Plaintiff's credibility. (R. at 21.) Plaintiff points out that
malingering, the intentional production of false or grossly cxaggcrated physical or psychological
symptoms motivated by external incentives (such as avoiding work), is different from factitious
disorder, which also involves the intentional production of physical or psychological signs or

symptoms, bul without the external incentives for the behavior. DSM IV (1994) at 471-73, 683.

* Plaintiff also testified that she took samples of Arthrotec, (R. at 61), which is used for
treatment of the signs and symptoms of osteoarthritis or rheumatoid arthritis in patients who
cannot take other non-steroidal anti-inflammatory drugs due to the risk of stomach ulcers.
Physician's Desk Reference (2004) at 3013-14.

-32-



The ALJ first looked at Plaintiff's daily activities while performing the Psychiatric
Review Technique to determine whether Plaintiff suffered from a listing level impairment. (R. at
18.) After determining that Plaintiff suffered from mild depression and a personality disorder
(Part A), the ALJ turned to the criteria in paragraph B to determine if she exhibited the
impairment-related functional limitations that would be incompatible with the ability to do any
gainful activity. One of the four paragraph B criteria is "marked restriction of activities of daily
living.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, §§ 12.04, 12.08. The ALJ found that Plaintiff only
exhibited slight restrictions of activities of daily living, slight difficulties in maintaining social
functioning, often deficiencics of concentration, persistence or pace, and no episodes of
deterioration or decompensation in work settings. (R. at 18, 30.) We note that even if the ALJ
had found that Plaintiff were more restricted in activities of daily living, she still would not meet
another B paragraph criterion that would mandate a finding that she met or equaled a listing level
impairment.

Next, the AI.J again mentioned Plaintiff's daily activities while evaluating the credibility
of Plaintiff's subjective complaints while performing the RFC assessment. In addition to finding
that Plaintiff only suffers from slight restriction of daily activities, the A.J also determined,
based on the factors found in SSR 96-7p, that Plaintiff was not credible. See also 20 C.F.R.

§ 404.1529(c)(3) (listing same factors). The factors include daily activities; the location,
duration, frequency, and intensity of the individual's pain; factors that precipitate and aggravate
the symptoms; the type, dosage and effectiveness of any medications; other treatment besides

medication; and any measures besides treatment used to alleviate the pain. SSR 96-7p.

-29-



mental disorders. (Id.) In fact, Dr. Long found that "[Plaintiff] is obviously seeking assistance
and seems to endorse all items during the mental status exam and other administered tests that
would lead to a conclusion that she is incapable of working." (R. at 244.) He found that she did
not present a convincing case for depression or other mental illness. (Id.) In his opinion,
Plaintiff would be capable of performing simple repetitive tasks under supervision. (Id.)
Dr. Long recommended that Plaintiff undergo the Rorschach and Minnesota Multiphasic
Personality Inventory (MMPI-I]) tests. (Id.)

After the hearing, the ALJ ordered Plaintiff to undergo further testing with Dr. Long.
(R. at 278-81.) The results of the MMPI-II were invalid and suggested malingering as well as a
serious adjustment disorder. (R. at 278.) The results of the Rorschach test indicated no
psychosis, but did suggest extreme impulsivity and extreme emotional dependency. (R. at 279.)
Plaintiff exhibited a fair ability to remember and carry out complex job instructions but a good
ability to understand, remember and carry out simple job instructions. (R. at 281.) Dr, Long's
diagnosis was Factitious Disorder with Combined Psychological and Physical Signs and
Symptoms. (R. at 280.) He noted that an Adjustment Disorder with Depressed Mood should be
ruled out, (Id,) Dr. Long found that Plaintiff may be exaggerating the degree of psychological
distress from which she is suffering. (R. at 281.) He also found that she does not clearly present
as having a severe mental illncss although an adjusiment reaction wiih a combination of
psychological and physical complications could not be ruled out. (Id.) Plaintiff appeared to be

capable of managing her own funds and performing simple repetitive tasks under supervision.

(Id.)



motivation, concentrating, and making decisions. (Id.) She reported that she did not experience
seizures, but did have some blackouts. (R. at 199.) Dr. Rodos concluded that Plaintiff had a pain
disorder or chronic pain disorder and major depression with psychotic features - single episode.
(R. at 200.) He noted that there was no evidence of her report of a closed head injury, and also
found that the amount of back pain she reported seemed out of proportion to the findings of

Dr. Rabinowitz. (Id.) He found that as Plaintiff presented herself, she was unable to interact
with other people, remember reasonable tasks, handle more than one set of instructions at a time,
and was not very adaptable. (Id.)

In January 1999, Erika B. Altman, Ph.D., completed a Psychiatric Review ‘lechnique
Form ("PRTF") and Mental Residual Functional Capacity Assessment. (R. at 202-14.)

Dr. Altman determined that Plaintiff was moderately limited in her ability to perform activities
within a schedule, maintain regular attendance, and be punctual within customary tolerances, but
did not indicate any evidence of limitation in any other category. (R. at 211.) She also noted that
Plaintiff exhibited "questionable credibility" and might be "presenting herself as impaired for
secondary gain.” (R. at 213.)

In June 1999, Plaintiff was examined by Alan Long, Ph.D., a clinical psychologist. (R. at
242-44.) Plaintiff told Dr. Long that she sustained a head injury in the March 1996 car accident
and that she was hospitalized for about two weeks. (R. at 242.) She reported that her back hurt
her every day but she did not take prescription medication because she was uninsured. (R. at
242-43.) Plaintiff told the doctor that she was making $50,000 at the Department of Children
and Family Services. (R. at 243.) Dr. Long concluded that Plaintiff could be described as angry

and depressed. (Id.) However, she did not present any diagnosis on Axis | or 2 of the DSM-IV

-5-



B. The Medical Evidence Supports the ALJ's Finding That
Plaintiff Retains the RFC To Perform a Full Range of
Unskilled Medium Work.

Plaintiff argues that the ALJ's finding that she retains the ability to perform simple,
unskilled medium work was not supported by substantial evidence. She complains at length that
the ALJ overlooked key evidence of her physical and mental limitations, failed to reconcile
inconsistent evidence, failed to seek additional evidence, and selectively chose to discuss only
that evidence which supported her ultimate conclusion. To the contrary, we find that the ALJ's
decision does contain, and her ultimate determination is based upon, all of the relevant evidence
in the record. See Garfield v. Schweiker, 732 b'.2d 605, 609-10 (7th Cir. 1984).

Plaintiff first finds fault with the ALJ for not mentioning that Dr. Rabinowitz diagnosed
Plaintiff with chronic lumbar myofacial pain syndrome after his July 1998 consultative
examination. As Plaintiff recognizes, however, the ALJ does summarize the findings of this
consultative cxam in great detail even though she did not write out the actual diagnosis in her
decision. (R. at 19.) Plaintiff also claims that the ALJ did not take records submitted from the
St. James Orthopedic & Occupational Rehabilitation Center indicating that Plaintiff suffered
from chronic myofascial pain into account, even though the AI.J noted that Plaintiff did receive
physical therapy in 1998. (R. at 19.) Myofacial pain syndrome is a "nonarticular disorder
characterized by achy pain, tenderness, and stiffness of muscles, areas of tendon inscrtions, and
adjacent soft tissue structures." (PI.'s Mem. at 12, citing The Merck Manual, 481 (17ed. 1999)).
We agree with Defendant that this diagnosis is not contrary to the ALJ's decision, and the ALJ
did not improperly disregard the evidence underlying this diagnosis. The ALJ found that

Plaintiff has severe impairments due to a back impairment, mild depression, and a personality

-18-



Plaintiff testified that the pain in her back was indescribable. (R. at 46.) She said it was
as if somconc hit her real hard, a sharp pain that knocks her off her feet. (Id.) Plaintiff rated the
pain in her pain in her back as a ten ona scale of one to ten, the pain in her leg as a ten, and the
pain in her arm as an eight, (R. at 47-48.) She also said that the pain was “not that bad" if she

was taking her medication which consisted of samples from her doctor. (Id. at 47.)

D. Witness Testimony

At the hearing, Plaintiff's friend and caretaker Mary Jennings also testified. Ms. Jennings
is a Certified Medical Assistant but does not appear to receive any compensation for assisting
Plaintiff. (R. at 70.) She cleans, cooks, and otherwise aids Plaintiff. (Id.) Ms. Jennings testified
that she can see that Plaintiff is in pain when she tries to move in certain positions, such as in the
bathtub. (Id.) Plaintiffs mood is affected by the weather and how much pain she is in. (R. at

72.) In order to get her out of the house, Ms. Jennings has to "psych her up" first. (Id.)

E. Medical Expert's Testimony

Dr. Robert Marquis, a psychiatrist, was present and testified at the hearing after reviewing
the medical evidence. (R. at 62-69.) He noted that it was difficult to determine Plaintiff's
impairments as the orthopedic and medical evidence that would support her complaints of
ongoing severe pain was contradictory. (R. at 63.) Dr. Marquis suggested a possible diagnosis
of psychogenic pain syndrome if (here were no physiological mechanism that could explain her
pain. (R. at 63-64.) If she did have the condition, she would have marked impairment in

activities of daily living, a marked impairment of social function, and would have frequent

-8-



on the mental RFC form that Plaintiff could cngage in substantial gainful activity, as she was not
severely or markedly impaired in any way and was only moderately limited in but a few
categories. We also note that although the ALJ did not explicitly discuss Dr. Altman's findings,
she did rely upon the opinion of Dr. Marquis which did refer to Dr. Altman's finding that
Plaintiff was psychiatrically capable of significant gainful activity. In any event, these
evaluations did not favor Plaintiff and the ALJ's failure to mention them does not mean that her

opinion was not supported by the substantial weight of the evidence.

Lon The ALJ's RFC Assessment Encompasses an Assessment of
Plaintiff's Mental RFC,

Plaintifl’s next area of argument relates to her mental impairment, She argues that the
ALJ was required to complete a mental RFC that satisfies the requirements of 20 C.F.R.

§ 404.1520a, and that the ALJ's narrative assessment of Plaintiffs RFC does not satisfy these
requirements. Plaintiff suggests that the ALJ should have completed the standard mental RFC
form to mect these requirements.

The special technique that is used to evaluate the severity of mental impairments for
adults is described in 20 C.F.R. § 404.1520a. Under this technique, the ALJ must first determine
if the claimant suffers from a medically determinable mental impairment. 20 C.F.R.

§ 404.1520a(b)(1). Once the presence of a mental impairment is confirmed, the ALJ will then
rate the degree of functional limitation resulting from the impairment. 20 C.F.R. § 404.1520a(d).
After the degree of functional limitation is rated, the ALJ will then determine the severity of the

mental impairment, and whether it meets or is equivalent to a listed mental disorder, 20 C.F.R.

-24-



Rtioute Onder Forth (0697)

ot

United States District Court, Northern District of Illinois

Name of Assigned Judge
or Magistrate Judge

Martin C, Ashman

Sitting Judge if Other
than Assigned Judge

CASE NUMBER 02 € 4578 DATE 6/28/2004
CASE Felicia J. Gardner vs. Jo Anne B. Barmhart
TITLE
[In the following box (a) indicate the party ling the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented. }
DOCKET ENTRY:
qd) Q Filed motion of [ use listing in “Motion” box above.]
(2) a Brief in support of motion due
@ Oo Answer brief to motion due . Reply to answer brief due
(4) o Ruling/Hearingon__ ss setfor__—at_
(3) Q Status hearing[held/continued to] [set for/re-set for] on, set fora
{6) QO Pretrial conference[held/continued to] [set for/re-set for]on__ set for aat_
(7) o Trial[set for/re-set for]on_ at
(8) o {Bench/Jury trial] [[earing] held/continned to at
im)

This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) (© Local Rule 41.1 COFRCP41(a)(1) 1 FRCP41(a)(2).

(10) Ml (Other docket entry) Enter memorandum opinion and order. The court affirms the Commissioner’s
final decision. The Commissioner’s motion for summary judgment [24-1] is granted, and plaintiff's
motion for summary judgment [30-1] is denied.

dl)

No notices required, advised in open court,

[For further detail sce order attached to the original minute order.]

2

No natives required umber of neces

JUN 2 9 2004

aid

oY | Notices mailed by judge's staff.

Notified counsel by telephune,

Docketing to mail notices.

av | Mail AO 450 form.

18NOS LOY1SIO “S‘A
219

{
Copy to judge/magistrate judge. MYATS

enar2004

courtroom Sls Wd 82 NE ANZ ste aed mvee
Is deputy's _ Z
mas ftntatan
central Clerk’s Office ‘railing deputy initials



11. The claimant has no skills which are readily transferable to a
significant number of jobs within her residual functional capacity
(20 CFR § 404.1568).
12. Considering the range of work at all levels which the claimant is
still functionally capable of performing, in combination with her age, education,
and work experience, and using section 203.29 of Table No. 3 the
Medical-Vocational CGmidelines, the claimant is not disabled.
13. The claimant was not under a "disability," as defined in the Social
Security Act, at any time through the date of this decision (20 CFR.
§ 404.1520(1).
IV. Discussion
In order to receive Disability Insurance Benefits, a claimant must suffer from a disability
within the meaning of the Social Security Act. An individual is disabled if 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). To meet this definition, an individual must have a severe impairment which
makes her unable to do her previous work or any other subsiantial gainful activity? which exists
in the national economy. 20 C.F.R. § 404.1505(a). The determination of a disability involves a
five-step process. See 20 C.F.R. § 404.1520; Herron y. Shalala, 19 F.3d 329, 333 n.8 (7th Cir.

1994). The AT.J found in Plaintiff's favor at the first four steps, but found at step five that

Plaintiff was not disabled, because although she was severely impaired, she was able to perform

? Substantial gainful activity means work that involves doing significant and productive
physical or mental duties and is done for pay or profit. 20 C.F.R. § 404.1510.

-dl-



lll. ALJ's Findings

The ALJ made the following specific findings (as taken verbatim from her March 31,

2000, decision):

1. The claimant meets the nondisability requirements for a period of
disability and disability insurance benefits set forth in Section 216(i) of the Social
Security Act and is insured for benelits through the date of this decision.

2. The claimant has not engaged in substantial gainful activity since
the alleged onset of disability.

3. The claimant has an impairment or a combination of impairments
considered "severe" based on the requirements in the Regulations 20 CFR
§ 404.1520(b).

4, These medically determinable impairments do not meet or
medically equal one of the listed impairments in Appendix |, Subpart P,
Regulation No. 4.

3. The undersigned finds the claimant's allegations regarding her
limitations are not totally credible for the reasons set forth in the body of the
decision.

6. The undersigned has carefully considered all of the medical

opinions in the record regarding the severity of the claimant's impairments (20
CFR § 404.1527).

7. The claimant has the following residual functional capacity:
simple, unskilled medium work.

8. The claimant is unable to perform any of her past relevant work
(20 CFR § 404.1545).

9. The claimant is a "younger individual between the ages of 18 and
44" (20 CFR § 404.1563).

10. The claimant has "more than a high school (or high school
equivalent) education” (20 CFR § 404.1564).

-10-



Plaintiff also argues that the ALJ should not have considered her failure to seek medical
attention and her use of over-the-counter medication in her credibility determination because
Plaintiff gave a legitimate reason, lack of insurance and moncy, as to her failure to seek
treatment. Under the regulations and rulings, however, the treatment reccived by the claimant, as
well as the type and effectiveness of the medication that are taken should be considered by the
ALJ. 20 C.F.R. § 404.1529(c)(3); SSR 96-7p. Therefore, because the ALJ did not err in
considering this information, Plaintiff must be arguing that the ALJ came to the wrong
conclusion regarding Plaintiff's credibility based on this evidence, However, the ALJ noted that
Plaintiff had failed to seek medical treatment even immediately following the accident. (R. at
19,) She also noted that the treatment was not successful, apparently due to a lack of effort on
Plaintiff's part. Specifically, Dr. Trafimow prescribed a serics of vigorous back stretching
exercises, but when Plaintiff returned to his office a month later, she had not improved and was
told that she must be willing to do more, (Id.) It was not until one year later that Plaintiff sought
treatment again even though she appeared to have been insured for some time after the accident.
(R. at 253.) Upon examination by Dr. Tralimow she displayed a voluntary weakness of the
extensor hallucis longus. She was cncouraged to attempt to strengthen, but did not comply. She
also displayed virtually all of Waddell's signs. (R, at 19.) While mere remissness would not be
conclusive as to a credibility finding, in this case, non-compliance with prescribed treatment and
the type and frequency of medical treatment sought by Plaintiff lends support the ALJ's
credibility determination.

Likewise, the ALJ properly considered Plaintiff's use of pain medication. See Powers,

207 ¥.3d at 435-36 (noting that the plaintiff's prescription medication was not intended to treat

-~31-



At the hearing, Plaintiff testified that she did not cook, clean, or do anything around the
house except watch TV. (R, at 38-39, 54-55.) She did not leave except occasionally to go to the
mall or a church function with her caretaker. (R. at 40.) She had tried working at several jobs,
but could not work for more than one day "because | couldn't stand the pain." (R. at 45.)
Nevertheless, as noted by the ALJ, (R. at 18), Plaintiff reported to Dr. Rabinowitz that she drove
to a limited extent, did light household chores, and was able to perform routine activities of daily
living, (R. at 181). She had driven (o a consultative exam in December 1998 and reported on
application forms that she occasionally drove. (R. at 115, 140, 197.) Her testimony and that of
Ms. Jennings revealed that she visited with Ms. Jennings on a daily basis and was able to take
outings such as to the mail and to the movies. The record revealed that Plaintiff worked after the
accident and had earned $4,005 in 1997, and $6,739 in 1998. (R. at 17.) The ALJ also noted that
Plaintiff told Dr. Long she was hospitalized for two wecks after the accident which had rendered
her unconscious, but the hospital records revealed she was released the same day and never
reported a loss of consciousness. (R. al 21.) She also noted that Plaintiff twice misrepresented
the amount of money she was earning while employed by DCFS. (Id.) The inconsistency
between Plaintiff's testimony, her prior reports and statements, and the evidence in the record
provides support for the ALJ's finding that Plaintiff was only slightly limited in her activities of
daily living and her testimony to the contrary was not credible. See Powers, 207 F.3d at 435
(noting that while the many interviews and forms required to apply for benefits should not
function as traps for the unwary, discrepancies in a claimant's record and testimony may provide

support for a finding of incredibility).

-30-



c Plaintiff's Testimony

At the hearing in front of the ALJ, Plaintiff testified that she lives alone in a small
apartment with a shared kitchen. (R. at 38.) She does not cook, clean, or do other household.
chores. (R. at 38-39, 55.) She cannot lift even a gallon of milk, (R. at 50.) Her meals come
from her friend Mary Jennings or the Salvation Army food pantry. Plaintiff does not work and
only leaves her apartment when her friend Ms. Jennings encourages her to do so. (R, al 40.) She
does not drive. (R. at 54.) Her days consist of watching TV, laying in bed, and napping. (R. at
54-55.) Plaintiff generally washes up at the sink and gets dressed only if Ms. Jennings comes
over because the pain is so bad. (R. at 56,57.) Other than Ms. Jennings, Plaintiff does not have
any friends, although she used to be active socially. (R. at 52, 57-58.)

Plaintiff testified that she used a cane and occasionally a wheelchair to ambulate. (R. at
49.) She said that she can sit for maybe a couple of hours if she were able to sit al an angle, and
could walk about one mile at a slow pace. (R. at 49, 60.) She could only stand for about five
minutes or less unless she was holding onto her cane. (R. at 49.) Plaintiff testified that the last
time she drove a car was when the accident occurred, and she has not driven since then. (R. at
74.)

Plaintiff testified that the last time she worked was 1996 and she earned approximately
$30,000 a year. (R. at 43.) After the car accident in 1996 in which her back, legs, arms, thumb,
and head were injured, Plaintiff stayed in (he hospital for a few days. (R. at 44.) Later she went
to a "back to work" center, but has been unable to hold down a job due to the pain in her back

and legs even though she has tried several occupations. (R. at 45-46.) She would like to retum

to work someday. (R. at 51.)



provide medical evidence demonstrating that she has an impairment and its severity. See 20
C.F.R. § 404.1512. Ifthe evidence is inadequate to determine whether she is disabled, the
government must seek additional information. 20 C.F.R. § 404,1512(c). This information will
be sought when the report from the treating physician contains a conflict or ambiguity that must
be resolved, the report does not contain all the necessary information, or is not based on
medically acceptable diagnostic technique. 20 C.F.R. § 404,1512(e)(1). A consultative exam
may be ordered if the information necded is not readily available from the medical sources, but
this will only be ordered after a rcasonable effort to obtain information from the treating source
fails. 20 C.F.R. § 404.1512(f). Thus, the AT.J was only required to recontact Plaintiff's treating
physician’ if there was a conflict or ambiguity that needed to be resolved, or if the reports did not
contain all the necessary information. Plaintiff does not point to any conflicts or ambiguities that
needed to be resolved, or identify what information is missing, The ALJ was not required to
contact Plaintiff's physicians or to order a consultative exam just because there simply is no
underlying medical cvidence available to support her complaints.

Plaintiff also argues that the ALJ's failure to summarize the testimony of Plaintiff's friend
and caretaker, Ms. Jennings, reflected the ALJ's disregard of significant evidence contrary to her
ruling, Ms. Jennings's testimony mirrored Plaintiff's testimony and supported Plaintiff's claims
of pain. Briefly, we note that the ALJ is not required to discuss specific reasons for rejecting
Plaintiff's friend's testimony because the issucs raised by Ms. Jennings were discussed when the

ALJ discussed Plaintiff's testimony. See Herron, 19 F.3d at 337 (ALJ did not err in failing to

§ Defendant points out that determining who Plaintiff's treating physician is would be
difficult as her medical visits were few and far between.

-21-



Appeals Council subsequently reversed the ALJ's decision in favor of the claimant, relying on the
post-hearing evidence.

The court found that a waiver of his right to appear at a hearing and cross-examine could
not be implied from those particular circumstances. The claimant did not waive his right to
appear at the hearing by failing to appear in Virginia because it was clear that his financial
circumstances prevented him from doing so. Jd. The court found it significant that the ALJ, who
had seen and heard the claimant, had found his complaints to be genuine and found him disabled.
The court noted that the supplementary evidence could have been heard in Chicago, in front of an
ALJ, in order to afford the claimant the opportunily to appear. /d. at 715. In those
circumstances, "the opportunity to submit material or comments in writing did not fulfill
[claimant's] right to a decision based on ‘evidence adduced at the hearing." /d.; see also Oyen v.
Shalala, 865 F. Supp. 497, 510 (N.D. Ill. 1994) (finding that pro se claimant was deprived right
(o cross-examine the author of adverse post-hearing evidence when not informed of this right
pursuant to HALLEX 1-2-730).

In this case at hand, we first note that Plaintiff was represented by counsel at the hearing
in front of the ALJ and by the same attorney when the post-hearing evidence was received, unlike
the plaintiffs in Lonzollo and Oyen. The rights of pro se claimants are of course no different than
those of claimants who are represented by counscl, but at times special assistance is given to
ensure that pro se litigants are aware of their rights, Fi.g., of HALLEX I-2-7-35 B (when
post-hearing evidence is not proffered "the ALJ must ensure on-the-record that the claimant
(especially a pro se claimant) is fully informed” of the effects of waiver). We also note that there

was no indication that the ALJ was going to rule in favor of Plaintiff, or any indication that she

-3R-



had found Plaintiff's complaints of debilitating pain 1o be particularly credible due to her
testimony, unlike in Lonzollo. Furthermore, also unlike Lonzollo, the possibility of a
supplemental hearing in front of an ALJ in Chicago was available to Plaintiff, had she chosen to
request it. Instead, her attorney reviewed the reports of Drs. Long and Marquis, and responded to
the new evidence in a written letter to the ALJ. (R. at 290-91.)

The Ictter from Plaintiffs attorney recognizes that Dr. Marquis concluded that Plaintiff
could perform some type of gainful employment, but responded to this conclusion on several
fronts. First, it points out that Dr. Long only recommended "simple repetitive tasks under
supervision" for Plaintiff. (R. at 290.) Dr. Long also found that Plaintiff is only poorly able to
behave in an emotionally stable manncr and is unreliable. The letter suggests that Plaintiff may
need closer than normal supervision, based on the conclusion of Dr. Marquis that Plaintiff
requires supervision. (Id.) The mental RFC completed by Dr. Long, which was properly
disregarded by the AT.J as discussed above, is also referenced by the letter. (Id.) The letter
discusses the Factitious Disorder diagnosis, and contrasts it to malingering. (Id.) In conclusion,
the Icttcr states that "the evidence herein clearly supports a finding that claimant has met her
burden of showing that she cannot perform her past work or any oiher work ...." (R. at 291.)
Plaintiff requests a favorable decision “at your earliest convenience." (Id.)

‘The letter indicates that the evidence was reviewed throughly, and from the circumstances
it is apparent that Plaintiff waived her right to request a supplemental hearing and the opportunity
to cross-examine. Plaintiff appears to be arguing that if she knew the ALJ was going to disregard
Dr. Long's mental RFC, she would have challenged the ALJ's perception that the report contained

evidence adverse to her. However, it is apparent that the letter addressed the negative aspects of

~39-



18, 30.) Plaintiff had only slight difficulties in maintaining social functioning, as exhibited by
her interaction with her friend and outings that they took together. (Id.) While Plaintiff
exhibited deficiencies of concentration, persistence and pace, test results also revealed that she
was able to repeat five digits forward and four digits in reverse, and perform serial sevens which
demonstrated her concentration abilities and memory. (Id.); see 20 C.F.R. Pt. 404, Subpt. P,
App. 1, § 12.00 ("concentration is assessed by tasks such as having you subtract scrial sevens or
serial threes from 100 [or] through tasks requiring short-term memory").

Afler discussing Plaintiff's physical limitations that affected her ability to perform
work-related activities, the ALJ discussed Plaintiff's mental limitations as they impacted her
ability to perform work-related tasks. (R. at 19.) The ALJ determined that the opinions of
Dr. Marquis and Dr, Long should be given great weight, while the consultative examination by
Dr. Rodos was not valid. (R. at 19-20.) The ALJ detailed the tests performed by Dr. Long,
which revealed that Plaintiff exhibited an ability to concentrate, exaggerated her symptoms,
demonstrated an adcquate grip on reality, and exhibited extreme impulsivity and dependancy.
See SSR 85-16 (ALJ bears responsibility to "identify the pertinent evidence from medical and
nonmedical reports" and to determine the RFC). Drs. Long and Marquis both agreed that
Plaintiff retained the residual functional capacity to perform simple unskilled tasks. The AT.J's
determination that Plaintiff can perform simple unskilled work is consistent with these findings.
Her assessment satisfies the requirements of 20 C.F.R. § 1520a(d)(3) and SSR 85-16 and is

supported by the substantial evidence in the record.

-27-



pain as a result of the accident, Since that time, Plaintiff has tried to work at a number of
unskilled jobs, but testified that her back pain forced her to quit each job. (R. at 45-46.) ‘The
ALJ gave Plaintiff the benefit of the doubt and found that she has not engaged in substantial

gainful activity since her alleged onset date.! (R. at 17.)

B. Medical Evidence

After her accident, Plaintiff was treated at Holy Cross Hospital. (R. at 149-57.) X-rays of
her spine were normal, (R. at 153-54.) She was diagnosed with cervical-lumbar strain and a
sprain of her left ankle. (R. at 152.) Plaintiff subsequently sought treatment from the Beverly
Chiropractic Clinic where she was diagnosed with posttraumatic strains of the cervical spine,
shoulder, and low back. (R. at 161.) In April of 1996, Plaintiff consulted orthopedic surgeon
Jordan Trafimow, M.D., at Midwest Orthopaedics. (R. at 175.) Dr. Trafimow found marked
deconditioning of the erector spinae muscles. (R. at 176.) He recommended that Plaintiff start a
vigorous program of back stretching exercises. (Id,) One month later the physician reported that
Plaintiff had not improved and that she "must be willing to do more." (R. at 174.)

Plaintiff returned to Midwest Orthopaedics in April 1997. (R. at 173.) She reported pain
in her whole back which had gotten progressively worse. (Id.) She denied numbness, tingling,
or tadiation of pain into either of her lower extremities. (Id.) Shc had normal deep tendon
reflexes, voluntary weakness, and a negative straight leg test. (Id.) The physician noted that

Plaintiff displayed “virtually all" of Waddell's signs of non-organic symptoms. (Id.) He also

' An earnings report showed that Plaintiff earned $4,005.50 in 1997 and $6,739.75 in
1998. (R. at 111.)

~3-



framework for consideration of how much the individual's work capability is further diminished
when the claimant suffers from both exertional and nonexertional limitations. SSR 85-15. An
ALI may find a vocational resource, such as a vocational expert's testimony, helpful or even
necessary depending on the complexity of the case when a claimant suffers from both exertional
and noncxertional limitations. SSR 83-14.

Plaintiff argues that the testimony of a vocational expert was required because the ALJ
found that she had a functional limitation of deficiencies of concentration, persistence or pace,
resulting in failure to complete tasks (in a work sctting or elsewhere) in a timely manner. (R. at
30.) The ALJ rated Plaintiff's degree of limitation as "often," which was the middle of a five
point scale from "never" to "constant" on the Psychiatric Review Technique Form. (Id.) The
ALJ also found that Plaintiff suffered from mild depression and a mild personality disorder.

(R. at 26, 29.) Relying upon New7on v. Chater, 92 F.3d 688 (8th Cir. 1996), in which the court
found that the testimony ofa vocational expert was necessary where the claimant "often" had
deficiencies of concentration, persistence or pacc, Plaintiff argues that her significant
nonexertional impairments require the ALJ to consult a vocational expert.

"The use of the grid is inappropriate where the claimant's nonexertional impairments arc
so severe as to limit the range of work he can perform.” Herron, 19 F.3d at 336. When the
impairments reach this level of severity, "determination of disability is made through the
‘testimony of vocational experts who can indicate what work, if any, the claimant is capable of
performing." Id. at 336-37 (quoting Nelson v. Sec'y of Health & Human Servs., 770 F.2d 682,
684 (7th Cir. 1985)). Whether an impairment is severe is a question of fact. Clark v. Sullivan,

901 F.2d 175, 178-79 (7th Cir. 1989).

-14-



persistence or pace does not create a per se rule that a vocational expert must be consulted.
Newton docs not convince us otherwise. In Newton, an Eighth Circuit case, the claimant also
suffered from deficiencies of concentration, persistence, or pace. 92 F.3d at 695. The Eighth
Circuit held that the ALJ erred by failing to include these limitations in the hypothetical question
to the VE because the VE could not be expected to remember all of the claimant's nonexertional
limitations from the record alone. /d. Thus, New/on mercly instructs that when a VE is called to
testify, the VE must consider all of the claimant's impairments as found in the record in order to
adequately give an opinion as to job availability. But see Herron, 19 F.3d at 337 (hypothetical
question to the VE need not take into consideration every detail of the claimant's impairments
especially where VE has reviewed the evidence).

The Court disagrees with Plaintiff's contention that the ALJ's finding that her
nonexerlional impairments were not severe was not supported by substantial evidence. ‘The ALJ
found that Plaintiff "often" suffered from deficiencies of concentration, persistence or pace, but
did not find that she suffered from either of the next two highest and more serious ratings,
"frequent" or "constant." (R. at 30.) The ALJ also found that Plaintiff had a “mild personality
disorder" and "mild depression." (R. at 26, 29.) Neither of these are so severe as to require a
VE's testimony. Dr. Altman determined that Plaintiff was moderately limited in her ability to
perform activities within a schedule, maintain regular attendance, and be punctual, but also noted
that Plaintiff exhibited "questionable credibility" and might be "presenting herself as impaired for
secondary gain.” (R. at 211,213.) After two cxaminations Dr. Long found that Plaintiff did not
present a convincing case for depression or other mental illness, and opined that Plaintiff would

be capable of performing simple repetitive tasks under supervision. (R. at 244, 281.) She had

-16-



AL] Bonny Barezky conducted the hearing on October 19, 1999, where Plaintiff, who was
represented by counsel, Dr. Robert Marquis, a psychiatrist, and Mary Jennings, a friend and
caretaker of the claimant testified, (R. at 32-81.) After the hearing, Plaintiff underwent an
additional consultative psychological examination. (R. at 278-81.) Dr. Marquis reviewed the
report of the examination and offered additional comments regarding Plaintiff's condition. (R. at
287-89.) Plaintiff responded to the additional comments before the ALJ issued her decision. (R.
at 290-91.) On March 31, 2000, the AT.J rendered an unfavorable decision finding that Plaintiff
was not disabled because she could perform a significant number of jobs in the national
economy. (R. at 16-31.) This decision became the final decision of the Commissioner when the
Appeals Council denied Plaintiff's request for review. (R. at 6-7.) See 20 C.F.R. § 422.210(a).

Plaintiff now seeks judicial review of that decision.

Il. Background Facts

A Plaintiff's Background

Plaintiff was born on January 15, 1966, and is currently thirty-eight years old. (R. at
108.) After high school, Plainti!f earned an associate's degree and subsequently completed
approximately one more year of college. (R. at 40.) Plaintiff's work experiences include
accountant, bookkeeper, supervisor and data entry clerk. (R. at 116.) Her most recent position
was as a program manager for the llinois Department of Children and Family Services. (Id.)
While employed in this position, Plaintiff was involved in a car accident in which she was
rear-ended by a drunk driver in March of 1996. (R. al 43, 159-60.) Plaintiff sustained injuries to

her leg, knee, back, and left hand. (R. at 149-50.) She complains of constant persistent back

-2-



Barnhart, 2003 WL 21919191, at *3 (N.D. Ind. July 30, 2003) (finding that Federal Regulations
control over HALLEX); but see Newron y. Apfel, 209 F.3d 448, 459 (Sth Cir. 2000) (finding that
administrative agencies should follow their own internal procedures where the rights of
individuals are affected but also finding the result may stand unless there is prejudice to the
claimant). However, Plaintiff must be given the opportunity to respond to post-hearing evidence
and request a supplemental hearing to ensure that the requirements of 42 U.S.C. § 405(b) are
met. Therefore, the question remains, that if Plaintiff's attorney was not provided with the
standard suggested proffer letter, were Plaintiff's duc process rights violated.

In the 1976 Seventh Circuit case of Lonzolfo, the court held that where post-hearing
evidence is received and subsequently reviewed by the claimant, the claimant may waive the
right to rebut and cross-examine if "the waiver is clearly expressed or strongly implied from the
circumstances.” 534 F.2d at 714. In Lonzollo, waiver was not found, but the facts arc
distinguishable from the instant case. In Lonzollo, the Appeals Council, sua sponte, reviewed
and reversed an ALJ's decision, relying upon evidence that was not presented at the hearing in
front of the ALJ. /d, at 713. The Appeals Council initially informed the claimant, who resided
in Chicago, that it required additional medical evidence and informed him that he could provide
further evidence or a statement and also gave him the opportunity to attend a hearing in Virginia
in front of the Council. The claimant submitted to the requested medical examination. The
Appeals Council then provided the results of the medical exam to the claimant, along with a
letter informing him that it intended to include the evidence in the record of the case, and gave
him the "opportunity to comment upon it if you wish." /d. at 714. The claimant, representing

himself, responded to the medical report, disputing parts of it that did not favor him. The

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§ 404.1520a(d). The Summary Review Report, which was completed by the ALJ, mects these
requirements as does the ALJ's narrative discussion at pages 18-19.” (R. at 24-31.) Plaintiff does
not argue otherwise. After performing these steps, the ALJ concluded that Plaintiff has a severe
mental impairment but her impairment did not meet or equal any of the listings. (R. at 24.) She
found that an RFC assessment was necessary. (Id.) This comports with 20 C.F.R. §
404.1520a(d)(3), which requires an assessment of residual functional capacity if the claimant
suffers from a severe non-listing level impairment. 20 C.F.R. § 404.1520a(d)(3) ("If we find that
you have a severe mental impairment(s) that neither meets nor is equivalent in severity to any
listing, we will then assess your residual functional capacity.") Plaintiff faults the ALJ's
assessment of her mental RFC,

Residual functional capacity is the most the claimant can still do despite her mental and
physical limitations. 20 C.F.R. § 404.1545(a)(1); SSR 96-8p. When assessing the claimant's
mental abilities, the ALJ will "first assess the nature and extent of [her] mental limitations and

restrictions and then determine [her] residual functional capacity for work activity on a regular

7 The ALJ's assessment of the severity of the claimant's impairment and the residual
functional capacity assessment may be set forth in the ALJ's decision. 20 C.F.R. § 404.1520a(c).
Plaintiff acknowledges that "a specific form is not required," but then argues that the standard
Mental Residual Functional Capacity Assessment form would satisfy the requircments of this
regulation whereas a mere narrative assessment does not satisfy the requirements. (PIf.'s Resp. at
4-5.) Plaintiff cites to Walton v. Chater, No. 94 C 1484, 1995 WL 579535, at *12 (N.D. Il.
1995), in which the court found that the ALJ was required to complete the standard mental RFC
assessment form and append it to his opinion. That opinion, however, interpreted an analogous
earlier version of the regulations covering applications for SSI, which stated that in "all cases
involving mental disorders at the administrative law judge hearing . . . the standard document
will be appended to the decision." /d. (citing 20 C.F.R. § 416.920a(d)). The current regulations
state that while the standard document must be completed at the initial and reconsideration levels
of the administrative review process, the applications of the technique may be documented
within the decision at the administrative law judge hearing level. 20 C.F.R. § 404,1520a(e).

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

FELICIA J. GARDNER, )
)
Plaintiff, ) Case No. 02 C 4578
)
v. ) Magistrate Judge
) Martin C, Ashman
JO ANNE B. BARNHART, )
Commissioner of Social Security, ) Ny
)
Defendants. ) & ay
Se”
MEMORANDUM OPINION AND ORDER Ss

Plaintiff, Felicia J. Gardner, seeks judicial revicw, pursuant to 42 U.S.C. § 405(g), of the
final decision of the Commissioner of the Social Security Administration that she was not
entitled to Disability Insurance Benefits. The parties have consented to have this Court conduct
any and all proceedings in this case, including the entry of final judgment. See 28 U.S.C.

§ 636(c); Local R. 73.1(a). Presently before this Court are both Plaintiff's and Defendant's
motions for summary judgment. For the reasons set forth below, this Court grants Defendant's

motion and denies Plaintiff's motion.

I, Procedural History

On May 5, 1998, Plaintiff filed an application for Disability Insurance Benefits ("DIB"),

alleging disability due to low back pain as of March 9, 1996. (R. at 16.) Her initial application

for benefits was denied and, upon review, her reconsideration request was also denied. (R. at 16,

3Y

86, 94.) Plaintilf requested a hearing before an administrative law judge ("ALJ"). (R. at 97.)



Dr. Long diagnosed Plaintiff as appearing to have Factitious Disorder with Combined
Psychological and Physical Signs and Symptoms. (R. at 280.) He also noted that the results of
the MMPI-II were “invalid and suggest|ed] malingering." (R. at 278.) The results indicated
nothing morc than her level of distress at that point in time, or her efforts to express her feclings
in the most dramatic and negative manner. (R. at 279.) Dr. Long concluded that she did not
clearly present as having a severe mental illness and could perform simple repetitive tasks under
supervision. (R. at 281,) In an earlier evaluation, Dr. Long noted that Plaintiff's expressions of
depression on the Beck Depression Inventory-II did not seem consistent with her overall
situation, (R. at 244.) He concluded that she "is obviously seeking assistance and seems to
endorse all items during the mental status cxam and other administered tests that would lead to a
conclusion that she is incapable of working.” (Id.) He recommended that the MMPI-II and
Rorschach test be given to Plaintiff. (Id.)

Dr. Marquis reviewed the additional tests performed by Dr, ong, and found it significant
that the results of the MMPI-II were invalid and suggestive of malingering. (R. at 287.) He also
noted that Plaintiff endorsed items that were suggestive of severe psychopathology, but other
evidence did not support the severity of such an illness. (Id.) In addition to Dr. Long's
suggestion of malingering, Dr. Altman noted that Plaintiff "seems to be presenting herself as
impaired for secondary gain." (R. at 213.) Although the ALJ did not rely upon this report in her
credibility findings, and the Court does not normally rely upon arguments not set forth by the
ALJ, in this case, the Court takes notice of Dr. Altman's report as contradicting Plaintiff's bald
assertion that the “only time malingering has been suggested is in the post-hearing evidence

submitted by Dr. Long and reiterated by Dr. Marquis... ." (PIf.'s Mem. at 20.) The suggestion

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D. The ALJ's Credibility Determination Was Not Patently Wrong.

Plaintiff next allacks the ALJ's finding that Plaintiff was not entirely credible on several
fronts regarding her restrictions of daily activities. Shc argues that she can be disabled even if
she cngages in limited general life activities. She also argues that the ALJ placed too much
emphasis on her failure to seek medical attention, her use of medication, and the reports that
suggested malingering. Furthermore, she argues that the ALJ did not place great enough weight
on the testimony of Plaintiff's carctaker. Finally, she argues that certain words used in the ALJ's
opinion demonstrate the ALJ's bias against her.

The ALJ is in the best position to see and hear the witnesses, and therefore her credibility
determination is afforded special deference. See Powers v. Apfel, 207 F.3d 431, 435 (7th Cir.
2000), The credibility determination should only be reversed if Plaintiff can show it was
“patently wrong.” See id. (quoting Herr v, Sullivan, 912 F.2d 178, 181 (7th Cir, 1990)).
However, if the determination rested "on objective factors or fundamental implausibilities rather
than subjective considerations," the Court has greater freedom to review the ALJ's decision. See
Herron, 19 1'.3d at 335.

Plaintiff's argument that she may be disabled even if she can perform limited daily
activities is unavailing. The disability determination is a five step process that should rely on the
totality of the evidence in the record and it does not hinge on whether or not the claimant can
perform daily activities. 20 C.F.R. § 404.1520; Herron, 19 F.3d al 333 n.8, At no time did the
ALJ determine that merely because Plaintiff only experienced slight limitations in the activities
of daily living that she automatically was not disabled. Rather, this was only one of many factors

that she took into consideration in the final disability determination.

~28 -



other work within her residual functional capacity in the national economy. Plaintiff contests the
ALJ's finding that she was not disabled.

Section 205(g) of the Social Security Act grants federal courts the authority to review
final decisions of the Commissioner with the power to affirm, modify, or reverse, with or without
remand to the Commissioner for a rehearing. 42 U.S.C. § 405(g). However, the scope of review
this Court must use is quite limited; the Commissioner's decision must be affirmed so long as it
is supported by substantial evidence.

Substantial cvidence is "such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion... ."" Dray v, R.R. Ret. Bd., 10 F.3d 1306, 1310 (7th Cir. 1993)
(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). The ALJ's finding must be
supported by more than a scintilla of evidence, but may be supported by less than the full weight
of the evidence. Young v, Sec'y of Health & Human Servs., 957 F.2d 386, 389 (7th Cir. 1992);
Delgado v. Bowen, 782 F.2d 79, 83 (7th Cir. 1986). ‘The reviewing court must consider all
evidence on the record; however, it may not decide the facts anew, reweigh the evidence, or
substitute ils judgment for that of the ALJ, because the ALJ must resolve all factual issues and
evidentiary conflicts, Jones y. Shalala, 10 F.3d 522, 523 (7th Cir. 1993); Delgado, 782 F.2d at
82. Therefore, the critical question for this Court is not whether Plaintiff was disabled, but
whether there is substantial evidence in the record to support the Commissioner's decision. If
reasonable minds could disagree on whether Plaintiff is disabled, we must affirm the ALJ's
decision denying benefits. See Schmidt v. Apfel, 201 F.3d 970, 972 (7th Cir. 2000).

Plaintiff argues that the ALJ made several errors in her determination that Plaintiff is not

disabled. First, sho argues that the ALJ committed legal error by failing to seek the testimony of

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The Court rejects Plaintiff's invitation to create a rule that any time a claimant is rated as
“often” exhibiting deficiencies of concentration, persistence or pace, a vocational expert must be
consulted. See Myles v. Apfel, No. 95 C 3929, 1998 WL 473940, at *4 (N.D. Ill. Aug. 3, 1998)
("the use of VEs is not mandatory in cases involving ‘often’ deficiencies of concentration"). This
rule would go against the language and spirit of the regulations and the case law. It is only afler
the ALJ determines that the nonexertional impairments are sufficiently scvere that a vocational
expert must be consulted. The mere fact (hat Plaintiff suffers from a nonexcrtional impairment
does not “immediately preclude utilization of the grid." See Nelson, 770 F.2d at 685. According
to the regulations, if the issue in the disability determination is whether the claimant can use her
work skills in other work and in which specific occupations the claimant may be employed, then
the ALJ "will decide whether to use a vocational expert or other specialist." 20 C.F.R.

§ 404.1566(e) (emphasis added); SSR 83-14 (noting that use of a vocational resource "may be
helpful" in obvious cases or "may be necessary" in more complex situations). See also Luna v.
Shalala, 22 F.3d 687, 691-92 (7th Cir, 1994) (claimant's nonexertional impairments of pain and
hand restrictions were not sufficiently severe as to require the testimony of a VE); Johnson v.
Bowen, 648 F. Supp. 443, 449 (N.D. IIL. 1986) (claimant's pain was not so severe as to restrict a
full range of light work and use of the grid was not precluded), Singleton v, Heckler,

No. 84 C 6490, 1989 WL 157999, at *4 (N.D. TI. Dec. 13, 1989) (substantial evidence supported
finding that claimant's nonexertional impairments of a nervous condition and pain were not so
severe as to require the testimony of a VE).

Thus, the usc of a VE is discretionary unlcss the claimant's nonexertional impairments are

sufficiently severe. A finding that Plaintiff suffered from difficulty with concentration,

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