IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS

WESTERN DIVISION

John B., ) 

 ) 

 Plaintiff, ) 

 ) Case No.: 20-cv-50137 

v. ) 

 ) Magistrate Judge Margaret J. Schneider 

Kilolo Kijakazi, ) 

Commissioner of Social Security,1

 ) 

 ) 

 Defendant. ) 

MEMORANDUM OPINION AND ORDER

Plaintiff John B. (“Plaintiff”) appeals the decision of the Commissioner of the Social 

Security Administration (“Commissioner”) denying his application for supplemental security 

income. The parties have filed cross motions for summary judgment. [37, 42]. As detailed below, 

Plaintiff’s motion for summary judgment [37] is denied and the Commissioner’s motion for 

summary judgment [42] is granted.

BACKGROUND

A. Procedural History

On December 27, 2012, Plaintiff filed an application for Social Security disability 

insurance benefits under Title II of the Social Security Act, alleging a disability beginning on 

December 20, 2012. R. 18. The Commissioner denied his application on June 14, 2013, and upon 

reconsideration on March 26, 2014. Id. Plaintiff filed a written request for a hearing on April 14, 

2014. Id. On September 29, 2015, a hearing was held by Administrative Law Judge (“ALJ”) 

Cynthia Bretthauer where Plaintiff and a vocational expert appeared and testified. R. 33–65. On 

November 25, 2015, the ALJ issued her written opinion denying Plaintiff’s claims for disability 

insurance benefits. R. 18–28. Plaintiff appealed the decision to the Appeals Council and the 

Appeals Council denied Plaintiff’s request for review. R. 1–6. Plaintiff then sought judicial review 

of the ALJ’s decision. 

On August 22, 2017, then-Magistrate Judge Johnston entered a memorandum opinion and 

order remanding the case on the grounds that the ALJ fail to appropriately address Plaintiff’s 

treatment history. [14]. This opinion advised the ALJ to—on remand—call an impartial medical 

expert on remand to evaluate Plaintiff’s treatment history and to consider the opinion of Plaintiff’s 

treating physician, Howard Weiss M.D., provided after the ALJ’s decision. Id., at 12. The ALJ 

followed this instruction. On April 11, 2019, the ALJ held a new hearing where Plaintiff, medical 

1 Kilolo Kijakazi has been substituted for Andrew Saul. Fed. R. Civ. P. 25(d).

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expert Steven Goldstein, M.D., and vocational expert James Radke appeared and testified. R. 426–

57. 

On April 22, 2019, the ALJ issued a new written decision denying Plaintiff’s applications

for disability insurance benefits. R. 404–19. Again Plaintiff appealed the decision to the Appeals 

Council and the Appeals Council denied Plaintiff’s request for review. R. 392–95. Plaintiff now 

seeks judicial review of the ALJ’s decision on remand, which stands as the final decision of the 

Commissioner. See 42 U.S.C. § 405(g); Schmidt v. Astrue, 496 F.3d 833, 841 (7th Cir. 2007). The 

parties have consented to the jurisdiction of this Court. See 28 U.S.C. § 636(c); [9]. Now before 

the Court are Plaintiff’s motion for summary judgment [37] and the Commissioner’s cross-motion 

for summary judgment and response to Plaintiff’s motion for summary judgment [42].

B. The ALJ’s Decision

The ALJ conducted the statutorily required five-step analysis to determine whether 

Plaintiff was disabled under the Social Security Act. See 20 C.F.R. § 404.1520(a)(4). At step one 

of the five-step analysis, the ALJ found that Plaintiff had not been engaged in substantial gainful 

activity between December 20, 2012, when Plaintiff alleges his disability arose, and June 30, 2015, 

his date last insured. R. 406. At step two, the ALJ found that during this period Plaintiff suffered 

from the severe impairments of degenerative disc disease of the cervical spine; chronic obstructive 

pulmonary disease (“COPD”) with tobacco use disorder; and right shoulder arthralgia. R. 406. At 

step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments 

that met or medically equaled the severity of the impairments listed in 20 C.F.R. § 404, Subpart P, 

Appendix 1. R. 409.

Before moving to step four, the ALJ found that Plaintiff had a residual functional capacity 

(“RFC”) to perform light work subject to frequently stooping, crawling, crouching, climbing ramps 

and stairs, and reaching overhead with the right upper extremity; never climbing ladders, ropes, 

and scaffolds; and avoiding concentrated exposure to dust, odors, fumes, and gases. R. 409. At 

step four, the ALJ found that Plaintiff could not perform any past relevant work. R. 417. Finally, 

at step five, the ALJ found that considering Plaintiff’s age, education, work experience, and RFC, 

there were a significant number of jobs in the national economy that Plaintiff could perform, 

including cashier, cafeteria attendant, and mail clerk. R. 419. For these reasons, the ALJ concluded 

that Plaintiff was not disabled under the Social Security Act from December 20, 2012, to June 30, 

2015, the date last insured. Id.

STANDARD OF REVIEW

The Court reviews the ALJ’s determination to establish whether it is supported by 

“substantial evidence,” meaning “‘such relevant evidence as a reasonable mind might accept as 

adequate to support a conclusion.’” Moore v. Colvin, 743 F.3d 1118, 1120–21 (7th Cir. 2014) 

(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Substantial evidence is “more than a 

mere scintilla.” Wright v. Kijakazi, No. 20-2715, 2021 WL 3832347, at *5 (7th Cir. 2021) (quoting 

Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019)). “Whatever the meaning of ‘substantial’ in other 

contexts, the Supreme Court has emphasized, ‘the threshold for such evidentiary sufficiency is not 

high.’” Id. (quoting Biestek, 139 S.Ct. at 1153). The Court “will not reweigh the evidence, resolve 

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debatable evidentiary conflicts, determine credibility, or substitute [its] judgment for the ALJ's 

determination so long as substantial evidence supports it.” Gedatus v. Saul, 994 F.3d 893, 900 (7th 

Cir. 2021).

The Court is obligated to “review the entire record, but [the Court does] not replace the 

ALJ’s judgment with [its] own by reconsidering facts, re-weighing or resolving conflicts in the 

evidence, or deciding questions of credibility. [The Court’s] review is limited also to the ALJ’s 

rationales; [the Court does] not uphold an ALJ’s decision by giving it different ground to stand 

upon.” Jeske v. Saul, 955 F.3d 583, 587 (7th Cir. 2020). “An ALJ need not mention every piece of 

medical evidence in her opinion, but she cannot ignore a line of evidence contrary to her 

conclusion.” Thomas v. Colvin, 745 F.3d 802, 806 (7th Cir. 2014) (citing Arnett v. Astrue, 676 

F.3d 586, 592 (7th Cir. 2012). Nor can ALJs “succumb to the temptation to play doctor and make 

their own independent medical findings,” Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996). As 

“the harmless error standard applies to judicial review of administrative decisions,” the Court will 

not remand a case to the ALJ if “convinced that the ALJ will reach the same result.” Wilder v. 

Kijakazi, 22 F.4th 644, 654 (7th Cir. 2022) (quoting Butler v. Kijakazi, 4 F.4th 498, 504 (7th Cir. 

2021)). The Court will only reverse the decision of the ALJ “if the record compels a contrary 

result.” Gedatus, 994 F.3d at 900 (citations and quotations omitted).

DISCUSSION

Plaintiff argues that the ALJ erred in her evaluation of Plaintiff’s subjective symptom

allegations and by failing to give appropriate weight to the opinion of Plaintiff’s treating physician, 

Dr. Weiss. The Court finds neither of these arguments persuasive. As the ALJ’s determination that 

Plaintiff’s subjective symptom allegations were not wholly credible stems in part from her 

crediting of Dr. Goldstein’s testimony over that of Dr. Weiss, the Court will address that argument 

first.

Opinion Evidence

Plaintiff contends that the ALJ erred in favoring Dr. Goldstein’s reviewing expert opinion 

over Dr. Weiss’s treating physician opinion in determining Plaintiff’s RFC. “For claims filed 

before March 2017, a treating physician’s opinion on the nature and severity of a medical condition 

is entitled to controlling weight if it is well-supported by medical findings and consistent with 

substantial evidence in the record.” Johnson v. Berryhill, 745 F. App’x 247, 250 (7th Cir. 2018) 

(citing 20 C.F.R. 404.1527(c)(2)). The treating physician rule can be understood as a two-step 

process. Wallace v. Colvin, 193 F. Supp. 3d 939, 946 (N.D. Ill. 2016). First, the ALJ must 

determine whether to give the treating physician’s opinion “controlling weight,” by evaluating if 

the opinion is both well supported by medically acceptable clinical and laboratory diagnostic 

techniques and is not inconsistent with other substantial evidence in the record. 20 C.F.R. § 

404.1527(c)(2); Scott v. Astrue, 647 F.3d 734, 739 (7th Cir. 2011). A treating physician has 

“greater familiarity with the claimant’s condition and circumstances,” such that an ALJ may only 

discount a treating physician’s opinions based on good reasons “supported by substantial evidence 

in the record.” See Campbell v. Astrue, 627 F.3d 299, 306 (7th Cir. 2010); Gudgel v. Barnhart, 

345 F.3d 467, 470 (7th Cir. 2003). A treating physician’s opinion is “entitled to controlling weight 

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only if it is supported both by medical findings and a consistent record.” Gebauer v. Saul, 801 F. 

App’x 404, 409. (7th Cir. 2020).

If the ALJ decides not to give controlling weight to a treating physician’s opinion, she must 

proceed to the second step and evaluate certain checklist factors to determine the amount of weight 

to give the opinion. Moss v. Astrue, 555 F.3d 556, 562 (7th Cir. 2009). These factors include

examining relationship; treatment relationship (length and nature of treatment relationship and 

frequency of examinations, as well as nature and extent of the treatment relationship); 

supportability; consistency; specialization; and other factors. 20 C.F.R. § 404.1527(c). While the 

Court “will not vacate or reverse an ALJ’s decision based solely on a failure to expressly list every 

checklist factor, we do expect the ALJ to analyze the treating source’s medical opinion within the 

multifactor framework delineated in the regulation.” Ray v. Saul, 861 F. App’x 102, 105 (7th Cir. 

2021) (internal citation omitted). 

Dr. Weiss provided his opinion of Plaintiff’s restrictions in a physical RFC medical source 

statement completed on December 30, 2015, more than a month after the ALJ’s initial decision. In 

this opinion, Dr. Weiss listed Plaintiff’s diagnoses as cervical radiculopathy, lumbar radiculopathy, 

and failed neck syndrome and his symptoms as neck pain, arm pain, shoulder pain, and hand 

numbness. R. 385. He opined that Plaintiff could lift five pounds or less only rarely (for 5% of the 

day) and that he could never lift ten pounds or more. Id. Dr. Weiss indicated that Plaintiff could 

walk a city block or more without rest or severe pain, but that he had problems with stooping, 

crouching, and bending and could only reach or handle objects for 1-2% of the day with either 

hand. R. 385–86. He stated that Plaintiff would need to lie down or recline for about two hours 

and could not sit or stand and walk for more than an hour during an eight-hour work period. R. 

385. He indicated that Plaintiff would need to take five to six unscheduled 20-minute breaks during 

the day to lie down or sit quietly. Id. And that for between 10% and 20% of an eight-work day, 

Plaintiff’s legs should be elevated at a 20-degree angle. Id. Dr. Weiss estimated that Plaintiff would 

be off task for more than 30% of the workday; absent from work for five or more days a month; 

and unable to complete a full workday for five or more days a month. Id. Finally, Dr. Weiss stated 

that Plaintiff had exhibited his current level of symptoms, impairments, and limitations for 21 

years. Id.

In her decision, the ALJ gave Dr. Weiss’s opinion’s little weight finding that “the 

inconsistencies and disproportionate character of [Dr. Weiss’s] assigned limitations materially 

detract from any weight that the [ALJ] could assign to [his] opinion.” R. 416. In summarizing Dr. 

Weiss’s opinion, the ALJ specifically noted that his statement that Plaintiff has exhibit the same 

level of symptoms, impairments, and limitations for 21 years was “inconsistent with the medium 

to heavy work that the claimant performed during that time.” Id. The ALJ also found that the 

opinion was not supported by Dr. Weiss’s own treatment notes and “inconsistent with the more 

persuasive opinion of” Dr. Goldstein “who testified that Dr. Weiss’s opinion is not supported by 

the objective medical evidence.” R. 416. 

At the hearing, Dr. Goldstein testified that Plaintiff suffered from degenerative disc disease 

in his neck and chronic pulmonary disease during the relevant period. R. 441–50. Dr. Goldstein 

opined that Plaintiff was limited to a light level of physical activity (which the ALJ clarified as 

meaning only lifting ten pounds frequently and twenty pounds only occasionally), and that he 

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should “avoid concentrated pulmonary irritants,” and not “climb ladders, ropes, or scaffolds.” R. 

443–44. He stated that Plaintiff could frequently stoop, crouch, and climb stairs. R. 444. When 

asked by the ALJ to explain why his RFC opinion differed from that of Dr. Weiss, Dr. Goldstein 

stated that he was “looking at the objective findings of the pulmonary function test, and . . . the 

range of motion of the neck and the back” and that “Dr. Weiss’ notes are kind of sketchy in terms 

of those things.” Id. He opined that Plaintiff’s treatment with “chronic narcotics” is “one of the 

things that can make spinal conditions worse over time and actually cause more pain” explaining 

that the drugs can relieve pain to the degree that sufferers perform activities that in the long term 

may cause “chronic strain of the muscles in the neck and back.” R. 444–45. Dr. Goldstein testified 

that he did not see evidence in the record supporting Dr. Weiss’s conclusion that Plaintiff could 

only rarely lift five pounds and never lift ten pounds. R. 445. He referred to Plaintiff’s testimony 

regarding babysitting his two-year old grandchild in stating that “obviously, [Plaintiff] was doing 

it if he had to lift the baby up to change a diaper . . . or move the baby around. That’s more than 5 

pounds.” Id. Dr. Goldstein further stated that there was no support in the examination notes for Dr. 

Weiss’s opinion that Plaintiff could only sit or stand and walk for one hour a day or that he would 

need to lie down for two hours during the workday. R. 445–46.

On cross-examination by Plaintiff’s counsel, Dr. Goldstein stated that he was surprised to 

see the range of motion of Plaintiff’s cervical spine was recorded as normal at the consultative 

examination conducted on June 30, 2013. R. 446. He would have expected to find “some 

diminished range of motion of the neck”, yet nowhere in the record did he see anything limiting 

his ability to look up or down. R. 447. He opined that while Plaintiff’s range of motion was not 

normal, it “might be closer to normal than somebody who can’t move his neck.” Id. Dr. Goldstein 

stated that he could not opine as the extent of his neck restrictions without more evidence of 

Plaintiff’s range of motion, but that while “[i]t may be minimal or mild” he did not believe “[i]t 

would be severe or moderate” based on his review of the record. Id. Dr. Goldstein confirmed that 

the record shows failed back syndrome and stated that “[i]t’s contraindicated to use chronic pain 

medicine for a condition like that.” R. 448. Dr. Goldstein explained that while possible that the 

narcotics could cause an individual to be off task, “people tend to get used to taking narcotics” and 

he “did not see in this record any examples” of Plaintiff having difficulty concentrating because 

of his medication. R. 450. 

The ALJ gave great weight to Dr. Goldstein’s opinion and found “[h]is explanation of the 

inconsistences in Dr. Weiss’[s] opinion, citing to the object[ive] medical evidence was very 

persuasive.” R. 417. In summarizing Dr. Goldstein’s testimony, the ALJ noted as indicators of 

credibility his status as a board-certified neurologist, review of the full record and observation of 

Plaintiff’s hearing testimony, and experience with Social Security disability claims. R. 417. 

Comparing Dr. Goldstein’s opinion with Dr. Weiss’s opinion, the ALJ concluded that “Dr. 

Goldstein’s opinion [was] well-supported by the objective medical evidence, while Dr. Weiss’[s] 

opinion [was] not.” R. 417. 

In addition to Dr. Goldstein’s expert opinion, the ALJ also considered the opinions of the 

state agency medical consultants, Charles Wabner, M.D., and Young-Ja Kim, M.D. In an 

assessment dated June 13, 2013, Dr. Wabner found that Plaintiff was capable of medium work and 

could occasionally lift or carry 50 pounds, frequently lift or carry 25 pounds, and stand and/or 

walk for six hours in an eight-hour workday. R. 67–76. On reconsideration, Dr. Kim confirmed 

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Dr. Wabner’s RFC findings. R. 79–90. While the ALJ also gave significant weight to these state 

agency medical consultants opinions, she found that Dr. Goldstein’s opinion merited more weight 

than theirs because “he is a specialist in neurology, had the opportunity to review the entire medical 

record, and thoroughly supported his opinion with citation to the medical record.” R. 417.

While the ALJ’s decision does not explicitly acknowledge the treating physician rule, any 

error in failing to do so is harmless because the ALJ followed the spirit of the rule by establishing

good reason to not give Dr. Weiss’s opinion controlling weight and considering the checklist 

factors in connection with her determination that his opinion merited little weight. The ALJ 

acknowledged Dr. Weiss’s lengthy treating relationship with Plaintiff, but found his opinion to be 

inconsistent with his treatment notes and unsupported by the medical record. These findings were 

supported by Dr. Goldstein’s testimony that the medical record did not support Dr. Weiss’s opined 

limitations. Dr. Goldstein provided specific examples to support this conclusion, including that 

Dr. Weiss’s finding that Plaintiff could rarely lift less than five pounds and never lift more than 

ten pounds was not consistent with Plaintiff’s testimony that he was babysitting his two-year 

grandchild multiple days a week. See R. 445. Dr. Goldstein noted that despite lower back pain 

being one of Plaintiff’s major complaints, there was no lumber spine MRI in the record before 

2017 and the 2017 lumbar spine MRI showed “[n]o disc herniation or spinal canal stenosis.” R. 

442. “[I]f the ALJ [made] a reasoned choice between the disparate medical findings,” that 

determination is “beyond our review because of the deference afforded the ALJ's decisions.” 

Gaylor v. Astrue, 292 F. App'x 506, 512 (7th Cir. 2008). See Wilson v. Berryhill, 737 F. App'x 

286, 290 (7th Cir. 2018) (finding that when medical providers disagree, “[a]n ALJ has substantial 

discretion regarding which doctor to believe” so long as “the ALJ gave suitable reasons for acting 

within that discretion”). Here, the ALJ found good reason to deny Dr. Weiss’s opinion controlling 

weight and then determined based on the checklist factors that Dr. Goldstein’s opinion was more 

credible. The Court defers to the ALJ’s reasoned choice.

Plaintiff concedes that Dr. Weiss’s statement that Plaintiff has exhibited the same 

symptoms for 21 years is “confusing”, but contends that the ALJ’s other rationales for dismissing 

Dr. Weiss’s opinions are erroneous. [See 37, at p. 14]. This concession is significant, because this 

finding alone is wholly inconsistent with other evidence in the record, including Plaintiff’s work 

history. Plaintiff specifically takes issue with Dr. Goldstein’s failure to note and the ALJ’s failure 

to factor into her analysis that Dr. Weiss observed that Plaintiff’s neck pain was becoming less

responsive to injections. See R. 332.2 The ALJ discussed these notes elsewhere in her opinion. R. 

413. Dr. Goldstein answered the questions he was asked by both the ALJ and Plaintiff’s counsel. 

He explained that his findings were based on his review of the medical records which would have 

included the treatment notes in question. Just as ALJs are not “required to provide a ‘complete 

written evaluation of every piece of testimony and evidence’” in their decisions, Wright, 2021 WL 

3832347, at *5 (quoting Rice v. Barnhart, 384 F.3d 363, 370 (7th Cir. 2004)), medical experts 

2 Plaintiff also argues that the ALJ erred in relying on Dr. Weiss’s treatment notes from 2016 and 2017 after the 

alleged period of disability in finding that Dr. Weiss’s opinion was inconsistent with his own treatment notes, since 

they came from after the relevant period and the ALJ failed to explain how they were inconsistent with Dr. Weiss’s 

opinion. In doing so, Plaintiff refers to the ALJ’s statement that “Dr. Weiss’ opinion is also not supported by his 

own treatment notes, including the new evidence at Exhibit 17F, summarized above.” See R. 416. As Exhibit 17F 

contains all the post-2015 treatment records provided from Dr. Weiss’s office, this reference is reasonably read as a 

statement that this new evidence was also considered, not necessarily that the ALJ gave it equal let alone greater 

weight than the evidence dating to the relevant period.

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cannot be required to provide an exhaustive accounting of the entire medical record in their hearing 

testimony. 

Plaintiff alleges several faults in Dr. Goldstein’s testimony, but fails to show that the ALJ 

erred in giving his expert opinion great weight. For example, while Dr. Goldstein did, as Plaintiff 

argues, testify that deconditioning could explain some restrictions like those found in Dr. Weiss’s 

opinion, he did not state that he saw evidence in Plaintiff’s medical record that deconditioning 

caused symptoms sufficient to justify those restrictions. Dr. Goldstein testified that while narcotics 

could lead to deconditioning and that it was possible that taking too many narcotics could cause 

an individual to be off task or need a nap, he saw no examples in his review of Plaintiff’s medical

record to support applying these restrictions to the Plaintiff. R. 445–49. 

The inconsistencies in Dr. Weiss’s opinion—including his assertion that Plaintiff’s 

symptoms have remained the same for 21 years despite his employment within that period —

provided good reason for the ALJ to not afford Dr. Weiss’s opinion controlling weight. The ALJ 

then properly considered these inconsistences and other checklist factors in determining that Dr. 

Weiss’s opinion merited little weight. This determination was supported by substantial evidence. 

Subjective Symptoms

In evaluating Plaintiff’s subjective symptom allegations, the ALJ found that “a review of 

the overall record does not support the extent to which [Plaintiff] alleges he is limited.” R. 415.

Plaintiff alleges severe back and neck pain. “A claimant's assertions of pain, taken alone, are not 

conclusive of a disability.” Zoch v. Saul, 981 F.3d 597, 601 (7th Cir. 2020). “To determine the 

credibility of allegations of disabling pain, an ALJ may consider several factors, including 

objective medical evidence and any inconsistencies between the allegations and the record.” Id. 

“As long as an ALJ gives specific reasons supported by the record, we will not overturn a 

credibility determination unless it is patently wrong.” Grotts v. Kijakazi, 27 F.4th 1273, 1279 (7th 

Cir. 2022). 

The ALJ concluded that Plaintiff’s “statements about the intensity, persistence and limiting 

effects of his symptoms” were inconsistent with the evidence in the record, “because the alleged 

pain severity is not supported by the medical records, including multiple MRIs, EMG and pain 

management treatment notes.” R. 410. For example, in March 2015, Dr. Weiss noted that he “did 

not detect a clear suggestion as to the etiology of this pain on exam” and ordered an MRI of 

Plaintiff’s cervical spine to compare with his MRI from 2013. R. 366. This MRI showed “mild 

degenerative changes without focal disc herniation or cord abnormality” without any “acute 

findings or significant change from 11/27/13.” R. 363. Plaintiff does not challenge Defendant’s 

contention that the ALJ’s findings are consistent with the objective medical evidence, but argues 

that a lack of objective medical evidence cannot be the sole rationale for discrediting Plaintiff’s 

testimony. [43, at p. 1]. However, the ALJ’s determination regarding the intensity of Plaintiff’s 

symptoms is also supported by other evidence, including the testimony of Dr. Goldstein, the 

opinions of the state agency medical consultants who found him to be capable of medium work, 

and the ALJ’s assessment of his daily activities. R. 76, 89, 411, 444–46. It is not the Court’s role 

to “substitute its judgment for the ALJ's by reweighing the evidence.” Beardsley v. Colvin, 758 

F.3d 834, 836–37 (7th Cir. 2014). 

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Plaintiff alleges many errors in the ALJ’s discrediting of his symptom allegations. While 

the allegations are not wholly lacking in merit, “[n]ot all of the ALJ's reasons must be valid as long 

as enough of them are,” and here the alleged flaws in the ALJ’s reasoning are simply not enough 

to undermine the ALJ's determination that Plaintiff’s subjective symptom allegations were not 

credible. See Halsell v. Astrue, 357 F. App'x 717, 722 (7th Cir. 2009). The ALJ’s decision to not 

credit the full extent of Plaintiff’s alleged symptoms was supported by substantial evidence.

Plaintiff asserts that the ALJ erred in discounting the seriousness of Plaintiff’s pulmonary 

limitations on the grounds that his reported habit of smoking a pack of cigarettes a day was “not 

consistent with that of a person who believes his disability is from a pulmonary impairment.” See

R. 411. “[C]ourts in this Circuit have found the rejection of a claimant's subjective symptom 

allegations based on smoking to be erroneous.” Charles B. v. Saul, No. 19 C 1980, 2020 WL 

6134986, at *10 (N.D. Ill. Oct. 19, 2020) (collecting cases). Defendant contends that the error here 

is harmless given that the ALJ also cited to descriptions in the medical record of Plaintiff’s COPD 

being stable and controlled, and Plaintiff’s lungs being clear on examination. See R. 411. While 

Plaintiff is correct that an individual’s condition may be both stable and disabling, the ALJ refers 

in his decision to provider’s notes stating not only that his condition was stable, but “wellcontrolled on current medications.” R. 411 (internal quotations omitted). As the ALJ also relied 

on the evidence in the record that Plaintiff’s COPD was controlled, any error in referencing his 

smoking was harmless. See Regina P. v. Saul, No. 19 CV 3155, 2020 WL 4349888, at *7 (N.D. 

Ill. July 29, 2020). 

Next, Plaintiff takes issue with the ALJ’s finding that the daily activities Plaintiff described 

in his testimony suggested “a greater functional ability than alleged.” R. 411. The activities noted 

by the ALJ include personal care, meal preparation, driving, shopping, household chores, 

babysitting his grandchildren, and performing minor repairs. Id. “[I]t is proper for the Social 

Security Administration to consider a claimant's daily activities in judging disability, but [the 

Seventh Circuit has] urged caution in equating these activities with the challenges of daily 

employment in a competitive environment, especially when the claimant is caring for a family 

member.” Beardsley v. Colvin, 758 F.3d 834, 838 (7th Cir. 2014) (finding that the ALJ erred in 

relying on the care a plaintiff provided to her mother as the “main reason for discounting the 

evidence of [her] physical limitations” and that the ALJ's reliance on this rationale was “especially 

troublesome” because most of the tasks performed by plaintiff at her mother's house were

sedentary tasks that “differed dramatically from the type of jobs the ALJ believed [the claimant]

was capable of performing” (internal quotations omitted)). Here, the ALJ did not equate Plaintiff’s 

daily activities with a full-time job, she found his activities to be inconsistent with his alleged 

symptoms. See Bertha M. v. Saul, 395 F. Supp. 3d 963, 973 (N.D. Ill. 2019) (“[A]n ALJ is free – 

is supposed to – assess a claimant's statements for consistency.”). The ALJ did not err in factoring 

Plaintiff’s activities, including babysitting his grandchildren, into her analysis. 

Plaintiff testified at the 2019 hearing that in 2015 he babysat his two-year-old grandchild 

for four to five hours a day, three to four days per week and other grandchildren on occasions when 

they were not in school. R. 431.Though Plaintiff’s babysitting may have greatly benefitted his 

family, his situation is not comparable to those cases cited to by Plaintiff in which a custodial 

parent had to take care of their minor children to retain custody of those children. Gentle v. 

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Barnhart, 430 F.3d 865, 867 (7th Cir. 2005) (“Gentle must take care of her children, or else 

abandon them to foster care or perhaps her sister, and the choice may impel her to heroic efforts.”); 

see also Brown v. Colvin, 845 F.3d 247, 253-54 (7th Cir. 2016). Nor should it be analogized to the 

Seventh Circuit’s finding in Stage v. Colvin that the claimant’s need to ensure her two teenage

grandchildren “would be supervised before scheduling major surgery shows nothing about the 

legitimacy of her claim of pain that was disabling and called for a hip replacement.” 812 F.3d 

1121, 1125 (7th Cir. 2016). In that case, the Court found that in inferring the claimant’s care for 

her grandchildren to be inconsistent with her pain allegations “the ALJ overlooked testimony that 

[the claimant] performed only very limited tasks—with great difficulty—and that her teenage 

grandchildren and her sister helped her with most tasks of daily living.” Id. at 1126. Supervising 

teenagers and caring for a toddler have very different physical requirements. As Dr. Goldstein 

identified in his testimony, caring for a two-year old would have required repeated lifting of thirty

pounds, a fact inconsistent with Dr. Weiss’s opinion that he could never lift more than ten pounds. 

R. 444–45. 

The ALJ also noted Plaintiff’s capability to clean and perform minor repairs in her 

assessment of his daily activities. R. 411. As the ALJ notes elsewhere in her opinion, these tasks 

were performed outside the home for pay during the relevant period. See R. 410. Plaintiff testified

that, in 2014, he worked for six months as a temporary part-time maintenance manager for an 

apartment complex. R. 410, 433. While in this position, he cleaned floors, coordinated with service 

providers, and completed various odd jobs including some painting and plastering. R. 434. “The 

ALJ is entitled to consider Plaintiff's part-time work after [his] alleged onset date.” Dorothy B. v. 

Berryhill, No. 18 CV 50017, 2019 WL 2325998, at *4 (N.D. Ill. May 31, 2019). It was not 

unreasonable for the ALJ to find Plaintiff’s ability to clean and perform minor repairs in the course 

of his part-time employment to be inconsistent with his allegedly disabling symptoms. 

Plaintiff takes issue with the ALJ’s assertions that frequent notations that Plaintiff was “in 

no acute distress” suggested that Plaintiff’s pain was not as severe as he alleged. R. 416. While a 

number of courts have found “a finding of ‘no acute distress’ [to be] a relevant factor for an ALJ 

to consider in a symptom evaluation, especially when accompanied by other findings,” John J. v. 

Kijakazi, No. 20 CV 50118, 2021 WL 3910750, at *5 (N.D. Ill. Sept. 1, 2021), others have found 

ALJs to have “read too much into the notations that [a claimant] did not appear to be in acute 

distress” since the term “refers to a disease, health effect, or symptom having a sudden, abrupt 

onset and a short, but severe, course, as opposed to a chronic condition or symptom having a slow 

development and a protracted but mild course.” See Wanserski v. Colvin, No. 1:14-CV-1033-DKLJMS, 2015 WL 5692521, at *7 (S.D. Ind. Sept. 28, 2015). Here given the chronic nature of 

Plaintiff’s alleged pain symptoms, observations that he was not in acute distress were “not a 

particularly compelling reason to discount [his] statements about the severity of [his] symptoms.” 

See Michelle M. L. v. Kijakazi, No. 20 C 6793, 2022 WL 3297619, at *12 (N.D. Ill. Aug. 11, 2022). 

Plaintiff additionally contends that Dr. Weiss’s suggestion that Plaintiff implant a pain pump 

supports his allegations of severe pain and that the ALJ erred by inferring that his decline of the 

offer suggested pain less severe that alleged. Indeed, “an ALJ must not draw inferences about a 

claimant’s lack of treatment without exploring the reasons for the inaction.” Ray v. Berryhill, 915 

F.3d 486, 490–91 (7th Cir. 2019). Here, the ALJ should have considered the concerns Plaintiff 

expressed about pain pump implantation, including the risk of infection. R. 339. Ultimately, 

however, the ALJ’s decision does not promote either the lack of acute distress or pain pump 

Case: 3:20-cv-50137 Document #: 46 Filed: 07/26/23 Page 9 of 10 PageID #:984
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declination as particularly decisive. Even if she erred in her evaluation of these two pieces of 

evidence, her other reasons for discounting Plaintiff’s symptom allegations are sufficient. See 

Michelle M. L., 2022 WL 3297619, at *12.

The ALJ speculated that Plaintiff’s “impairments may not be the sole reason for his 

inability to sustain full-time competitive employment,” because the accident which led to the back 

pain occurred in 1991, Plaintiff earned significant wages since that time with his impairments at 

approximately the same level of severity, and his earnings decreased in the years immediately 

preceding the period for which he is claiming disability. R. 412. Plaintiff argues that this analysis 

constituted a character assessment prohibited by SSR 16-3p. Defendant contends that this 

assessment was not of character, but of Plaintiff’s prior work record and efforts to work pursuant 

to SSR 16-3p. While the ALJ’s assessment based on his work history may appear to cast aspersions 

on his character, interpreting SSR 16-3p as prohibiting any analysis which implies a claimant was

less than forthright in alleging disabling symptoms would effectively compel ALJs to accept all

symptom allegations. As the ALJ rooted her suggestion in her analysis of Plaintiff’s work history, 

the Court does not find that this paragraph crossed the line into an impermissible character 

assessment. 

The Court’s role is not to re-do the ALJ’s analysis, but to determine if her determination 

was supported by substantial evidence. Here, the ALJ’s determination that Plaintiff’s subjective 

symptom allegations were only partially reliable was supported by substantial evidence.

CONCLUSION

For the reasons stated above, Plaintiff’s motion for summary judgment [37] is denied and 

the Commissioner’s motion for summary judgment [42] is granted. 

Date: 07/26/2023 ENTER:

_______________________________

 United States Magistrate Judge

Case: 3:20-cv-50137 Document #: 46 Filed: 07/26/23 Page 10 of 10 PageID #:985