United States District Court, N.D. Illinois, Eastern Division
September 13, 2004.
MICHAEL W. NESBITT, Plaintiff,
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.
The opinion of the court was delivered by: MORTON DENLOW, Magistrate Judge
MEMORANDUM OPINION AND ORDER
This case comes before this Court on the parties' cross-motions
for summary judgment. Plaintiff Michael W. Nesbitt ("Claimant")
challenges the decision of Defendant Jo Anne B. Barnhart,
Commissioner of Social Security ("Commissioner"), claiming that
her denial of his disability insurance benefits ("DIB") should be
reversed or remanded because the decision contains errors of law
and is not supported by substantial evidence. For the reasons
that follow, this Court affirms the Commissioner's decision.
I. BACKGROUND FACTS
A. PROCEDURAL HISTORY
Claimant filed an application for DIB on December 14, 1999, R.
93-95, alleging that he became unable to work due to back pain
with an onset date of February 6, 1998. R. 115. Claimant was
insured for DIB through June 25, 2002. R. 16. His claim was
denied initially, R. 29-32, and upon reconsideration. R. 34-36.
Plaintiff timely requested a hearing, R. 37, which was held first on July 17, 2001 before Administrative Law
Judge ("ALJ") Alan Jonas. R. 239-69. Following that hearing, the
ALJ received additional information from a vocational expert that
prompted a supplemental hearing. R. 271. The supplemental hearing
was held on February 27, 2002. R. 270-310. On June 25, 2002, the
ALJ issued an unfavorable decision, denying Claimant DIB and
finding him not disabled. R. 11-26. On September 26, 2003, the
Appeals Council denied Plaintiff's timely request for review,
making the ALJ's decision the final decision of the Commissioner,
R. 6-7. Claimant then filed this action against the Commissioner
pursuant to 42 U.S.C. § 405(g). The parties have consented to
this Court's jurisdiction to decide this case pursuant to
28 U.S.C. § 636(c)(1).
B. HEARING TESTIMONY
The ALJ held two hearings in this case. At the July 17, 2001
hearing, the ALJ heard testimony from a medical expert and from
Claimant, who appeared with counsel. R. 239-69. At the
supplemental hearing on February 27, 2002, the ALJ heard
testimony from two vocational experts. R. 270-310.
1. Claimant's Testimony
Claimant, who was born on November 7, 1954, was forty-seven
years old at the time of the first hearing, R. 93, and had
completed high school and one year of college. R. 121. Prior to
his alleged disability date, Claimant worked first as an auto
mechanic and then as a sheet metal worker. R. 116. As a sheet metal worker, Claimant, who was a shop foreman,
constructed and installed heating and air conditioning units and
performed duct work. Id. This work entailed stooping, kneeling,
crouching, and crawling for at least two hours every day, and
walking or standing for seven hours every day. Id. He
frequently lifted fifty pounds or more. Id.
Claimant's injury occurred when he fell from a ladder at work
and consequently sustained multiple disc annular tears, resultant
intractable back pain, and an inability to ambulate. R. 169. At
the emergency room, he was diagnosed with acute back pain strain
versus disc herniation, and appeared very uncomfortable. R.
158-59. After being transferred to another hospital, Claimant
underwent six days of bed rest and treatment. R. 169. He was
discharged after achieving some improvement and minimal pain.
He now claims to suffer from back and right leg pain and to be
limited from overhead work and bending. R. 244-45. Daily nerve
pinches limit his walking, sitting, and sleeping abilities. R.
245. In order to relieve his pain, Claimant moves around by
switching his sitting or standing positions. R. 248-49. He takes
pain relievers. R. 243.
Since he suffered his injuries, Claimant has lived alone in a
trailer, R. 246, performing some household chores. R. 247.
However, he can not perform house maintenance or stand up long
enough to wash dishes. R. 248. He drives a pick-up truck with an
automatic transmission, although he frequently pulls over or
stops driving because of his pain. R. 245-46, 250. He works at
his home computer, though he spends no more than an hour doing
that work. R. 248. Claimant, however, believes that he may be able to
perform a desk job involving computer work if he were allowed to
move around. R. 249.
2. Irwin Rich, M.D. Medical Expert
At the July 17, 2001 hearing, Dr. Irwin Rich, an orthopedic
surgeon, testified as the Medical Expert ("ME"). R. 252-67. After
reviewing the files and interviewing Claimant, the ME determined
that Claimant has an impairment, R. 255, which limits Claimant's
work capacity as follows:
may lift 10 pounds occasionally at table height, may
carry 10 pounds 15 feet, four times an hour in an
eight hour day, sit and stand option is desirable, no
bending, squatting, kneeling, reaching above mid
chest height, or climbing ladders, may push 10 pounds
total, wield device 15 feet, four times an hour
R. 256. Additionally, Claimant cannot stand for a couple of hours
and sitting would depend on the comfort of the chair. R. 258. The
limitations are based upon a reduction in the cushioning effect
of the lumbar interadibal discs, R. 264-65, although the
impairment is a result of mild disclogenic sclerosis in the
lumbar sacral spine, deficiency of the shock-absorbing action of
the lumbar discs, and mild disc bulges, which limit back
function. R. 257. There are, however, no impingements on any of
the lumbar nerves. Id. The ME concluded that the degree and
frequency of pain Claimant complained of is greater than expected
and not consistent with the objective evidence. R. 262.
3. Vocational Experts
a. Grace Gianforte
Vocational Expert ("VE") Grace Gianforte reported that 4,500
jobs exist in the Chicago metropolitan area that conform to
Claimant's limitations. R. 24. She derived her statistics from the State of Illinois Department of Employment
Security Economic Information and Analysis Division from 1990
through 2005. R. 295.
b. Susan Entenberg
Vocational Expert Susan Entenberg classified Claimant's job as
a sheet metal worker as heavy and skilled, from which there are
no transferable skills to sedentary or light work. R. 281. She
testified that Claimant essentially should be restricted to
sedentary sit/stand work, which includes cashier-type positions,
some clerk jobs, but not a lobby attendant. R. 282. Using the
Occupational Employment Statistics and Wages Estimates from the
Department of Labor, VE Entenberg found a total of 18,790
sit/stand jobs suitable for Claimant. R. 283-85. The VE testified
that her assessment would not change even if Claimant could do
light work while restricted from repetitive bending, twisting,
turning, pulling, pushing, gripping, and grasping, and is allowed
a sit/stand option consistent with light work. R. 294-95.
C. MEDICAL EVIDENCE
1. Dr. Spiros Stamelos Treating Physician
Dr. Spiros Stamelos, an orthopedic surgeon, treated Claimant
from February 7, 1998 until March 18, 2002, during which time
Claimant's condition worsened. R. 226. Claimant's injury was
"very serious" and was consistent with an acute annular tear or a
herniated disc. R. 169-72. Although Claimant may need surgery,
Dr. Stamelos recommended conservative treatment. Id.. Dr. Stamelos noted that as of March 18, 2002, Claimant had a
vetebrogenic (spinal) disorder and significant limitation of
spinal motion that medicine, injective therapy, physical therapy,
rehabilitation, and time failed to improve. R. 226-27. Claimant's
combined impairments are medically equivalent to the severity of
conditions in the vertobrogenic disorder impairment. R. 228.
However, Claimant had normal neurological functioning with no
reflex loss and no sensory loss. R. 226. Dr. Stamelos opines that
Claimant could lift five pounds safely during one-third of an
eight-hour work day and safely lift 2.5 pounds during two-thirds
of an eight-hour work day. Id. He concluded that there were no
objective findings to match the findings required for listing
1.05C Other Vertebrogenic Disorders. R. 228.
2. Dr. Arvind K. Goyal Treating Physician
Dr. Arvind Goyal evaluated Claimant on February 9, 1998 and
determined that Claimant had severe low back pain with right
sciatica. R. 175. Claimant's pain was likely associated with
local contusion, sprain and multiple small bulging discs, and
possibly an acute herniated nucleus pulposus. Id. Additionally,
Claimant had not responded well to the conservative treatment
prescribed by Dr. Stamelos. Id.
3. Dr. David L. Spencer Examining Physician
In September 1998, Dr. David L. Spencer, an orthopedic surgeon,
stated that Claimant was his patient, who he had believed to be
credible and sincere about complaints of pain. R. 229. However,
on his most recent visit, Claimant had demonstrated flagrant
displays of symptom magnification, which changed Dr. Spencer's opinion about
Claimant's credibility and sincerity. Id. Consequently, Dr.
Spencer declined to recommend back surgery and instead
recommended a Minnesota Multiphasic Personality Inventory. Id.
4. Dr. Sid Shafer Examining Physician
On October 5, 1998, Dr. Sid Shafer, an orthopedic surgeon,
examined Claimant. R. 190-91. Claimant complained of back and leg
pain, but did exercises at home and performed household chores.
R. 190. Dr. Shafer noted that Claimant had gross abnormal
movements that prevented him from standing up straight or sitting
comfortably, though Claimant eventually stood and walked with
good posture. R. 191. Although Claimant writhed and complained of
pain in various areas of his back during range of motion tests,
Dr. Shafer found that Claimant's ranges of hip motion were
excellent, his knee motions were satisfactory, and his leg
reflexes, circulation, and sensory responses were normal. Id.
Dr. Shafer noted that straight leg raising was normal to ninety
degrees when seated, but was limited on the right and left when
supine. Id. There was limited motion of the lumbosacral spine
in all directions, but Dr. Shafer noted inconsistencies within
that range of motion testing. Id.
In addition to noting his test results, Dr. Shafer reported
that he viewed a surveillance video of Claimant, which showed
that Claimant had an excellent gait, was able to drive and to
move around quite well, and did not have the functional
disabilities that he presented during his examination. Id. Dr.
Shafer opined that Claimant could engage in gainful employment.
R. 192. 5. Dr. Michael Kornblatt Examining Physician
Dr. Michael Kornblatt, an orthopedic surgeon, reported on March
1, 1999, that Claimant had a history of magnifying his symptoms.
R. 193-94. He noted that Claimant's gait was slow. R. 194. Dr.
Kornblatt concluded that Claimant had degenerative disc disease
of the lumbar spine, with chronic lower back pain and right leg
pain. R. 195. During the examination, Claimant complained of
constant low back pain and the inability to perform any prolonged
activities. R. 194. Nonetheless, Dr. Kornblatt stated that
Claimant could not perform his normal gainful employment but
could perform light and sedentary duties. R. 195.
6. Dr. Stephen Marshall Examining Physician
On March 8, 2000, Dr. Stephen Marshall examined Claimant on
behalf of the Illinois Department of Human Services. R. 201-03.
He found that Claimant was unable to work because of low back and
right leg pain, and that Claimant was unable to drive his pick up
truck because sitting up straight and hitting bumps caused him
back pain. R. 147, 201-03.
Dr. Marshall noted that Claimant appeared uncomfortable sitting
and could walk on his toes, but could not walk on his heels
without pain. R. 203. Dr. Marshall also found that Claimant could
walk down a hall without assistance, though he listed toward the
left and had an unusual hopping gait, pushing off a straight,
stiff, right leg, which was surprising because that was
Claimant's more painful leg. Id. D. THE ALJ'S DECISION
On June 25, 2002, the ALJ issued an unfavorable decision,
finding Claimant not disabled. R. 11-26. The ALJ followed the
familiar five-step analysis to determine disability. R. 16-24. At
step one, the ALJ determined that Claimant had not engaged in
substantial gainful activity during the relevant period. R. 16.
At step two, the ALJ found that Claimant has sprains and strains,
which constitute a severe impairment. R. 16-17. At step three,
the ALJ determined that Claimant's impairment, though severe,
does not meet or equal the requirements of a listed impairment.
R. 17. Pursuant to step four, the ALJ determined Claimant's
residual functional capacity.
The ALJ determined the following:
[T]he claimant retains the residual functional
capacity for all work activity except for work which
involves lifting and/or carrying more than 10 pounds
occasionally or 5 pounds frequently; performing tasks
that do not allow sit/stand option; repetitive
bending; twisting and turning; repetitive pushing,
pulling, gripping or grasping; using air or vibrating
tools; and working around machinery/unprotected
The ALJ found that the objective medical evidence failed to
provide strong support for Claimant's purported symptoms and
limitations. R. 18. After reviewing the medical evidence and
considering the reports of the many doctors who examined
Claimant, the ALJ determined that, with the exception of Dr.
Stamelos, there are no treating or examining physician opinions
indicating that Claimant is disabled or has limitations greater
than those listed in his residual functional capacity finding. R.
21. The ALJ points out that Drs. Shafer, Kornblatt, and Spencer note that Claimant is over-dramatizing his
problems and that they concluded that Claimant's condition was
not completely disabling. Id. Finally, the ALJ refused to give
controlling weight to the opinion of Dr. Stamelos because that
opinion lacks substantial support from the other evidence of
record and is "quite conclusory, providing very little
explanation of the evidence relied on in forming that opinion."
R. 21. Instead, the ALJ relied upon the statements from the
various doctors who released Claimant to return to work, though
with some restrictions. Id.
The ALJ also relied heavily on the testimony of ME Dr. Rich.
Id. He adopted and accepted the opinion of the ME as reflective
of the record as a whole. R. 22. Furthermore, the ALJ discredited
Claimant's testimony. Id. The ALJ found that the "record
includes evidence strongly suggesting that the claimant has
exaggerated symptoms and limitations." Id.
Thus, pursuant to the fourth step in the sequential evaluation,
the ALJ found that no greater or additional limitations beyond
the previously determined residual functional capacity are
justified. R. 23. As a result, Claimant can not return to any of
his past relevant work, which required heavy exertion. Id.
Acknowledging that the burden now shifts to the Commissioner at
step five, the ALJ noted that Claimant is capable of performing a
significant range of sedentary work as defined in
20 C.F.R. § 404.1567. Id. Additionally, the ALJ determined that a
significant number of jobs in the national economy exist that
claimant can perform given his residual functional capacity and other vocational factors. R. 24. To reach this
conclusion, the ALJ relied on the opinions of VEs Entenberg and
Gianforte. Id. Based on their opinions, he noted that there are
sit/stand option jobs that Claimant could perform. Id. Although
the total number of such jobs was either 4,500 or 18,790, the ALJ
found that both numbers are significant. Id.
The ALJ concluded that Claimant is capable of successfully
adjusting to work that exists in significant numbers in the
national economy. Id. As a result, the ALJ found Claimant to be
"not disabled." Id.
III. LEGAL STANDARDS
A. STANDARD OF REVIEW
The "findings of the Commissioner of Social Security as to any
fact, if supported by substantial evidence, shall be conclusive."
42 U.S.C. § 405(g). An ALJ's decision becomes the Commissioner's
final decision if the Appeals Council denies a request for
review. Wolfe v. Shalala, 997 F.2d 321, 322 (7th Cir. 1993).
Under such circumstances, the decision reviewed by the district
court is the decision of the ALJ. Eads v. Sec'y of the Dep't of
Health & Human Servs., 983 F.2d 815, 816 (7th Cir. 1993).
Judicial review is limited to determining whether the ALJ
applied the correct legal standards in reaching his decision and
whether there is substantial evidence in the record to support
the findings. Scivally v. Sullivan, 96 F.2d 1070, 1075 (7th
Cir. 1992). Substantial evidence is "such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion." Diaz v. Chater, 55 F.3d 300, 306 (7th Cir. 1995)
(citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). A mere scintilla of
evidence is not enough. Id. Even if there is adequate evidence
in the record to support the decision, the findings will not be
upheld if "the reasons given by the trier of fact do not build an
accurate and logical bridge between the evidence and the result."
Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996). If the
Commissioner's decision lacks evidentiary support or adequate
discussion of the issues, it can not stand Steele v. Barnhart,
290 F.3d 936, 940 (7th Cir. 2002).
A reviewing court must conduct a "critical review" of the
evidence before affirming the Commissioner's decision, Clifford
v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000), but does not
re-evaluate the facts, re-weigh the evidence, or substitute its
own judgment for that of the Social Security Administration,
Diaz, 55 F.3d at 305-06. Thus, judicial review is limited to
determining whether the ALJ applied the correct legal standards
in reaching a decision and whether there is substantial evidence
to support the findings. Id.; Scivally, 966 F.2d at 1075. The
reviewing court may enter a judgment "affirming, modifying, or
reversing the decision of the [Commissioner], with or without
remanding the cause for a rehearing." 42 U.S.C. § 405(g).
B. DISABILITY STANDARD
Disability insurance benefits are available to claimants who
can establish "disability" under the terms of the Social Security
Act. Brewer v. Carter, 103 F.3d 1384, 1390 (7th Cir. 1997). An
individual is disabled if that individual has the "inability to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to last for a continuous period
of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). However, a
disabled individual is eligible for DIB only if that individual
is under a disability. Id. § 423(a). An individual is under a
disability if she is unable to do her previous work and can not,
considering her age, education, and work experience, partake in
any gainful employment that exists in the national economy. Id.
The Commissioner uses a five-step sequential process in order
to determine if an individual is disabled.
20 C.F.R. § 404.1520(a). The sequential evaluation ends if, at any step of
the process, the ALJ finds that the claimant is not disabled.
Id. The ALJ must inquire: (1) whether the claimant is working
in any substantial gainful activity; (2) whether the claimant's
impairment is severe; (3) whether the impairment meets or equals
a listed impairment in 20 C.F.R., pt. 404, subpt. P, App. 1; (4)
whether the claimant is able to perform her past relevant work;
and (5) whether the claimant's age, education, and past relevant
work experience in reference to her residual functional capacity,
enable her to do other work. Id. § 404.1520(a)(4)(i)-(v). In
order to determine whether the claimant can perform any past
relevant work (step 4), the ALJ assesses the claimant's residual
functional capacity ("RFC"). Id. § 404.1520(e). The RFC is
defined as the most an individual can do after considering the
effects of physical and mental limitations that affect her
ability to perform work-related activities. Id. § 404.1545. The
burden of proof is on the claimant through step four; the burden
shifts to the Commissioner only at step five. Clifford v.
Apfel, 227 F.3d 863, 868 (7th Cir. 2000). At step five of the disability
analysis, the Commissioner has the burden of proving that
Plaintiff has the ability to engage in other work existing in
significant numbers in the national economy. Young v. Sec'y of
Health & Human Servs., 957 F.2d 386, 389 (7th Cir. 1992).
Claimant raises five issues for review: (1) whether the ALJ
made an incomplete RFC finding; (2) whether Claimant is able to
perform a significant range of sedentary work; (3) whether the
ALJ made an improper credibility determination; (4) whether the
ALJ improperly disregarded evidence that Plaintiff has trouble
driving his truck; and (5) whether Claimant is disabled under a
subjective complaints theory. The Court will address each issue
A. THE ALJ DID NOT MAKE AN INCOMPLETE RFC FINDING
In this case, it is undisputed that Claimant requires a
sit/stand option. In other words, while doing sedentary work,
Claimant must alternate between sitting and standing
periodically. According to Social Security Ruling 96-9p, where
this need can not be accommodated the occupational base for a
full range of unskilled sedentary work will be eroded. SSR 96-9p,
1996 WL 374185, at *7. The extent of the erosion, however,
depends upon the facts of the case, such as the frequency of the
need to alternate between sitting and standing and the duration
of the need to stand Id. "The RFC assessment must be specific
as to the frequency of the individual's need to alternate sitting
and standing." Id. Claimant argues that the ALJ in this case failed to specify the
frequency as to the sit/stand option in the RFC finding. The
Court agrees that the frequency of the sit/stand option was not
explicitly set forth in the ALJ's RFC discussion. However, it was
clearly understood by the VEs, upon whose determination the ALJ's
decision ultimately rests, that the sit/stand option means that a
person can either sit or stand whenever he or she wants. R. 24,
297-98. Therefore, the frequency and duration of the sit/stand
option implicitly is an indefinite period of time Claimant
could either sit or stand as often as he would like and for
however long he would like. Any change to that limitation would
only increase the number of jobs Claimant could perform.
Therefore, the ALJ did not make an improper RFC determination.
Next, Claimant argues that the ALJ gave an inaccurate
hypothetical to the VE because the ALJ stated that Claimant could
not do repetitive bending when the evidence shows that Claimant
can not bend at all. If the ALJ gives an inaccurate hypothetical
to the VE, remand is warranted. Kasarsky v. Barnhart,
335 F.3d 539, 544 (7th Cir. 2002). This issue made no difference because
the ALJ presented both hypotheticals to the VE.
Initially, the ALJ presented several limitations to the VEs at
the hearing. R. 281. Those limitations where contained in a
letter that was submitted in response to a July 18, 2001 letter
from Claimant's attorney to VE Gianforte. See Nesbitt v.
Barnhart, No. 03 C 8308 (N.D. Ill. minute order dated Sept. 13,
2004) (granting Claimant's motion to supplement the record with
the July 18, 2001 letter). One of those limitations is that Claimant could not bend. Based upon those limitations, VE
Entenberg testified that Claimant could do sedentary sit/stand
work. R. 294. The ALJ then asked VE Entenberg whether her
assessment would change from sedentary sit/stand work to light
sit/stand work even if hypothetically Claimant could do light
work while restricted from repetitive bending, twisting, turning,
pulling, pushing, gripping, and grasping, and is allowed a
sit/stand option consistent with light work. R. 294-95. She said
that her opinion would not change. R. 295.
Claimant asserts that the change from no bending to repetitive
bending is inaccurate and requires remand because the inability
to bend will eliminate the jobs identified by the VE. This Court
disagrees. The ALJ's hypothetical merely served to clarify that,
even if Claimant had slightly more ability than he alleged, his
ability to do nothing more than sedentary sit/stand work would
B. CLAIMANT IS ABLE TO PERFORM SEDENTARY WORK
An ALJ may not "play doctor" by making independent medical
findings. Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996).
Claimant asserts that the ALJ impermissibly played doctor when he
ignored the opinion of the ME that Claimant can not stoop and is
limited to lifting up to ten pounds occasionally at table height
for fifteen feet. These two conditions potentially render
Claimant unable to perform most sedentary jobs. See Luna v.
Shalala, 22 F.3d 687, 690 (7th Cir. 1994).
The Court finds that the ALJ's determination that Claimant
could perform sedentary work is supported by substantial
evidence. In reaching his decision, the ALJ relied on the opinions and findings of a medical expert, a treating physician,
and several examining physicians. For example, the ME found that
Claimant had normal neurological functioning and only mild spinal
abnormalities, making Claimant able to perform a range of
sedentary work with a sit/stand option that did not require
bending, squatting, reaching, or climbing ladders. R. 256-57. Dr.
Stamelos, Claimant's own treating physician, reported that
Claimant had normal neurological functioning despite his
complaints about pain. R. 226. Dr. Shafer, an examining
physician, found that Claimant had normal neurological
functioning, good posture, and the abilities to stand and to
walk. R. 191. Dr. Kornblatt, another examining physician, opined
that Clamant could perform light or sedentary work. R. 195.
Finally, Dr. Marshall, an examining physician, noted that
Claimant could walk unassisted and had no sensory or reflex
deficit. R. 147, 203.
C. THE ALJ MADE A PROPER CREDIBILITY DETERMINATION
The Social Security regulations require the Commissioner to
consider a claimant's statements about his or her symptoms and
how they affect the claimant's daily life and ability to work.
20 C.F.R. §§ 404.1529(a), 416.929(a). There is a two-part test for
determining whether complaints of pain contribute to a finding of
disability. First, the claimant must provide objective medical
evidence of a medically determinable impairment or combination of
impairments that reasonably could be expected to produce the
symptoms alleged. 20 C.F.R. §§ 404.1529(a)-(b), 416.929(a)-(b).
Second, if the ALJ finds an impairment that reasonably could
cause the symptoms alleged, he must consider the persistence and
intensity of these symptoms. 20 C.F.R. §§ 404.1529(c), 416.929(c). However,
neither the ALJ nor this Court must give "full credit to every
statement of pain, and require a finding of disabled work."
Bucker v. Chater, 92 F.3d 492, 496 (7th Cir. 1996). A court
will not set aside an ALJ's credibility determination unless it
is "patently wrong." Herron v. Shalala, 19 F.3d 329, 335 (7th
There is ample independent support for the ALJ's credibility
determination. First, Claimant "demonstrated such flagrant
findings of symptom magnification" that Dr. Spencer altered his
opinion concerning the authenticity of Claimant's subjective
complaints of pain. R. 229. Second, Claimant demonstrated actions
that were inconsistent with his alleged pain when he limped by
pushing off his theoretically more painful leg. R. 203. Third,
Dr. Kornblatt noted that Claimant magnified his symptoms. R.
193-94. Therefore, the ALJ's credibility determination was not
patently wrong and will not be reversed.
D. THE ALJ'S FAILURE TO DISCUSS CLAIMANT'S TROUBLE DRIVING IS
NOT LEGAL ERROR
Claimant argues that the ALJ committed legal error by
determining that Claimant "owns a pick up truck and has no
problem driving it," R. 17, without considering Dr. Marshall's
report that Claimant could not drive much because "it causes back
pain when he has to sit up straight or when he hits a bump," R.
203, or the fact that he has to pull over or stop due to back
pain whenever he drives the truck. R. 250. This lack of
consideration of the evidence, according to Claimant,
demonstrates that the ALJ's decision was not based upon all of
the relevant evidence in the record. See Garfield v. Schweiker,
732 F.2d 605, 609 (7th Cir. 1984). Claimant's challenge fails, however, because the
ALJ is not required to discuss every piece of evidence in the
record. Rohan v. Chater, 98 F.3d 966, 971 (7th Cir. 1996).
E. CLAIMANT IS NOT DISABLED UNDER A SUBJECTIVE COMPLAINTS
Finally, Claimant avers that his subjective complaints prove
that he is "disabled" within the meaning of the Social Security
Act because he has shown "1) evidence of an objectively adduced
abnormality and, either 2) objective medical evidence supporting
the subjective complaints issuing from that abnormality, or 3)
that the abnormality is of a nature in which it is reasonable to
conclude that the subjective complaints are a result of that
condition." Veal v. Bowen, 833 F.2d 693, 698 (7th Cir. 1987).
Whether Claimant actually can establish the three prongs of the
subjective complaints theory is immaterial because a necessary
element of the subjective complaints theory is the existence of
credible subjective complaints. See id. In this case, the ALJ
found that Claimant lacks credibility, and this Court has
concluded that the record substantially supports that
determination. Therefore, Claimant's subjective complaints
reasonably have been rejected by the ALJ. Consequently,
Claimant's challenge under the subjective complaints theory
fails. V. CONCLUSION
The ALJ's opinion was complete and was supported by substantial
evidence. The ALJ's determinaiton that Claimant can perform
sedentary work has a substantial basis in the record. For the
reasons set forth in this opinion, Claimant's motion for summary
judgment is denied and the Commissioner's motion for summary
judgment is granted. The Commissioner's decision to deny
Claimant's disability insurance benefits is affirmed.
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