JEFFREY COLE, Magistrate Judge.
Michael Hobbs seeks review of the final decision of the Commissioner ("Commissioner") of the Social Security Administration ("Agency") denying him Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("Act"), 42 U.S.C. Act, 42 U.S.C. § 1382c(a)(3)(A). Mr. Hobbs asks the court to reverse and remand the Commissioner's decision, while the Commissioner seeks an order affirming the decision.
Mr. Hobbs received SSI as a child. But once a recipient reaches age 18, his case is reassessed under the standards applicable to adults. It was determined that Mr. Hobbs did not meet those standards as of June 1, 2009. (R. 20). That determination was upheld on reconsideration and Mr. Hobbs requested a hearing. An administrative law judge ("ALJ") convened a hearing on November 7, 2012, at which Mr. Hobbs, represented by counsel, appeared and testified, along with his mother. In addition, Dr. Larry Kravitz testified as a medical expert, and Susan Entenberg testified as a vocational expert. (R. 490-535). On April 12, 2010, the ALJ issued a decision finding that Mr. Hobbs was not disabled because he retained the capacity to perform work that was limited to simple, one- to three-step tasks in a routine, predictable environment, with limited supervision, and did not involve joint tasks, and only incidental contact with the general public. (R. 20-31). As such, he would be able to perform jobs like dishwasher or janitor. (R. 31). This became the final decision of the Commissioner when the Appeals Council denied Mr. Hobbs's request for review of the decision on June 24, 2013. (R. 5-7). See 20 C.F.R. §§ 404.955; 404.981. Mr. Hobbs has appealed that decision to the federal district court under 42 U.S.C. § 405(g), and the parties have consented to the jurisdiction of a Magistrate Judge pursuant to 28 U.S.C. § 636(c).
Mr. Hobbs was twenty-two years old at the time of his hearing. (R. 496). He quit school in the middle of tenth grade. (R. 496). He was hoping to get his GED, but had no transportation. (R. 497). He has never worked. He'd like to work at a fast food restaurant, but claims there are none close enough to his house. (R. 522-23). He lived with his mother and older brother, both of whom were drawing SSI. (R. 497-98, 505). According to his mother, he spent his days smoking marijuana, perusing internet pornography, watching TV, and partying with his friends. (R. 428).
There is very little medical evidence in the record. In his brief, Mr. Hobbs focuses on old grammar school records. In general, they showed he did not perform at his expected grade level, needed extra support and attention from teachers, was easily distracted, required more time than normal to complete tasks, but also did not apply himself and wanted to quit school. (R. 232, 235, 255-56, 281, 288, 291, 308, 337-38, 352, 360, 363, 401). He was held back in third grade and then put in special education classes. (R. 319-20, 514).
The disability agency arranged a consultative examination for Mr. Hobbs with psychologist Jeffrey Karr, on June 10, 2009. He went to the exam with his mother. She said that he generally slept until 1 pm and needed regular reminders about hygiene. His principal daily activity was smoking marijuana, for which she gave him money. He got mad if she didn't. He started his marijuana use at age 12. He visited with friends and his girlfriend, who would bring their baby along. He watched TV and went to bed between 2 and 4 a.m. (R. 428). He was able to use a microwave to prepare food and could use public transportation. He could use a computer, mostly to look at pornography. He refused to do chores. (R. 428). His mother claimed that she was on drugs when pregnant and Mr. Hobbs had drugs in his system when he was born. (R. 428). She said he had multiple arrests and was on probation for burglary. (R. 429).
Mr. Hobbs met separately with Dr. Karr. He told the doctor he quit school in 10th grade as a special education student. He said he had a job for 5 months at a nearby store doing stock work. He said he was able to cook, shop, do laundry, travel, and use a computer. He went to parties with friends and enjoyed TV. He said he had been arrested three times, but couldn't recall what for. (R. 429).
Dr. Karr noted Mr. Hobbs appeared neat and clean, alert, responsive, and a quick study. He did not exhibit overt oppositional behavior. Mood and affect were congruent. He made limited eye contact and sometimes responded slowly. For the most part, he was able to persist. (R. 429). Testing revealed an ability to use trial and error methodology, alertness, ability to attend to task, but difficulty with response time. (R. 430). Full scale IQ was 76; verbal was 76; perceptual reasoning was 86; working memory was 86; processing speed was 74. (R. 427). Diagnosis was learning disorder, cannabis abuse, and borderline intellectual functioning. (R. 430).
State disability agency psychologist Thomas Low reviewed the file on June 23, 2009. He noted diagnoses of learning disorder and cannabis abuse. (R. 461). He noted that reports indicated that Mr. Hobbs did poorly in school but had not applied himself and wanted to quit. He was not psychotic and his cognitive functions were intact. He could perform simple work, but would need a job with limited contact with co-workers and supervisors. (R. 434). Dr. Low felt that Mr. Hobbs was moderately limited in his ability to remember, understand, and carry out detailed instructions. He was not significantly limited with regard to simple instructions. He was moderately limited in his ability to respond appropriately to supervisors and get along with co-workers. His was moderately limited in the ability to set realistic goals. (R. 433).
That was about the time Mr. Hobbs's child's disability benefits were terminated and his status was to be reassessed. The next time Mr. Hobbs saw Dr. Karr, less than two years later on May 2, 2011, he and his mother were trying to get him back on the SSI roles. Their presentation changed. Incredibly, when asked about her son's marijuana use this time, Ms. Walker — who funded her son's cannabis habit — said, "he has never used any to my knowledge." (R. 457). Mr. Hobbs also denied any marijuana use past or present. (R. 457). His mother had with her some unfilled prescriptions for him for Abilify and Xanax. He had run out of Abilify after a month. (R. 457). He had previously had prescription for Prozac and Zyprexa. (R. 57). She said he was argumentative and rude, and had not showered for 10 days. (R. 456). Dr. Karr, however, noted there was no apparent hygiene problem at the exam. (R. 456). He was able to use a computer, travel by public transportation, and use a microwave. (R. 456). He slept most of the day and stayed out most of the night. (R. 456). She claimed he had trouble keeping friends. (R. 456).
Once again, Dr. Karr interviewed Mr. Hobbs separately from his mother. He said he got up at 4 pm, went to bed at 6 am, and had multiple interests and friendships. He went on Facebook, was able to use a microwave, and use public transportation. (R. 457). Contrary to what his mother had reported, he denied ever having taking any prescription medication. (R. 457). He admitted he had a temper and would get angry when his mother told him to do something more than once. (R. 457).
Dr. Karr saw no signs of substance abuse, muscle tremor, restlessness, or physical discomfort. Mr. Hobbs seemed uncomfortable with the interview, and reluctant to participate. His answers were succinct, coherent, blunt, and accompanied by limited eye contact. His mood was grossly intact, but he gave minimal effort and had a low frustration level. (R. 458). Dr. Karr noted more than once that both Mr. Hobbs and his mother were poor or questionable historians. (R. 458-59). Diagnoses were cannabis abuse history and learning disorder per history. (R. 459). Dr. Karr noted that a mood disorder should be ruled out. (R. 459).
State disability agency psychologist Richard Havens reviewed the file on May 25, 2011. He noted diagnoses of borderline intelligence and learning disability. (R. 461). Mr. Hobbs did not have a condition severe enough to meet any of the listed mental impairments. (R. 462-469). He had only mild restrictions of daily activities and social functioning, and moderate limitations in concentration, persistence, and pace. He had no episodes of decompensation. (R. 470). Dr. Havens discussed the medical record and noted the inconsistent statements from Mr. Hobbs and his mother and stated that their allegations about Mr. Hobbs's limitations were only minimally credible. (R. 472). Dr. Havens felt that Mr. Hobbs was moderately limited in his ability to remember, understand, and carry out detailed instructions. He was not significantly limited with regard to simple instructions. He was moderately limited in his ability to maintain attention and concentration for extended periods. (R. 452). He could perform repetitive, routine work, and had adequate ability to interact with co-workers and supervisors. He could adjust to minor routine changes in a work setting. (R. 454).
Mr. Hobbs first went to see Dr. Chou on January 31, 2011 "for depression and SSI." (R. 478). The clinical note from Dr. Chou is all but illegible. Mr. Hobbs complained of mood swings. The doctor's diagnosis was "bipolar and schizo disorder." She prescribed ten mg of Abilify. (R. 478). On March 11, 2011, Dr. Chou jotted a note to the disability agency on Mr. Hobbs's behalf. She said he had been under her care since January 2011, and was "totally disabled" due to "schizo affective disorder." This was despite her having him "on the maximum dosage of antipsychotics." (R. 474). Notably, the Abilify website advises that the maximum diagnosis of the drug for a schizophrenic of Mr. Hobbs's age is 30 mg — three times the dosage Dr. Chou prescribed. https://www.abilify.com/pdf/dosing-guide.pdf.
Dr. Chou next saw Mr. Hobbs and his mother on March 23, 2011. Again, her note is a challenge to decipher. His mother said he had not bathed in a week. Mr. Hobbs had no complaints, but exhibited a blunted affect. He admitted he was a smoker. Dr. Chou increased the Abilify dosage to 20 mg. (R. 479). On May 27, 2011, Dr. Chou wrote another note for Mr. Hobbs and his mother to the disability agency stating that she had seen Mr. Hobbs on a few occasions and he was in denial and could not "comply with any treatment." She added that he would need intensive treatment. (R. 475).
On June 27
Mr. Hobbs testified that he lives with his mother and twenty-five-year-old brother. (R. 497). The entire family was drawing Social Security disability benefits. (R. 498, 505). Mr. Hobbs had a three-year-old son that he saw once a month and played games with. (R. 498). Mr. Hobbs said he got free medical treatment from Dr. Chou at Jackson Park Hospital. (R. 499).
Mr. Hobbs said he could read and follow a shopping list, play video games, and play board games like Monopoly. (R. 498-99). He could focus on games for hours. (R. 499). He also liked to take electronic equipment apart and make things with the pieces. (R. 500-01). He knew how to cook simple meals. (R. 502). He said he tried to take showers regularly but he was too busy and only took them every couple of days. (R. 503). He was out with his friends, playing basketball, talking to girls. (R. 503). He wanted to get a job in electronics because he was very good with his hands. (R. 504). He said he could cook, and could get a fast food job but there were none in walking distance and he had no transportation. (R. 522-23). He smoked marijuana a couple of times a week with friends. (R. 517). Mr. Hobbs testified that he had never been in trouble with the police. (R. 501).
Mr. Hobbs's mother, Ms. Walker, testified that her son had no insurance, but she took him to see Dr. Chou when she went to see her. She said she got free sample medications for him there. Ms. Walker said she didn't know where to go to get her son free treatment. She said they wouldn't take him at the county hospital, because "at the time they wanted him to see their doctors." (R. 507). Basically, all Ms. Walker wanted to do there was get her son's prescription filled, but the doctors at county hospital wouldn't do that without seeing her son. (R. 507). She didn't think her son could see the doctors, though, without a referral. (R. 508). Later, Ms. Walker changed her story. She explained that she had no time to take her son to the free clinic because she had to care for his older brother and take him for treatment:
(R. 531). Ms. Walker claimed that sometimes Dr. Chou would see her son and sometimes she wouldn't. (R. 531).
Ms. Walker said her son had episodes every few days, whenever he had no medicine. (R. 508). He would lock himself in his closet or hide under his bed. She never took him to the emergency room, though. (R. 508-09). She just tried to calm him down and give him one of her pills, which worked very quickly. (R. 509). She testified that he had been arrested for burglary, but then said it was trespassing. (R. 511). Ms. Walker said the case was thrown out when he "did supervision." (R. 512). All he had to do was check in at the police station once a month for a year. (R. 512). She said she had to remind him to shower and change clothes. He would wear the same clothes for two weeks and shower only once a week. (R. 514-15). There were two fast food restaurants nearby that he could walk to if he had a job there. She didn't think he could get one because he was rarely presentable. (R. 523). The ALJ noted that Mr. Hobbs looked fine, but Ms. Walker defended her assessment:
(R. 523).
Dr. Kravitz then testified as a medical expert. Noting that there was very little evidence of treatment in the record, he interviewed Mr. Hobbs briefly. The doctor noted there was very little evidence of treatment, and the diagnosis on record of schizophrenia was problematic due to lack of support. (R. 524-25). There was no indication of schizophrenic symptoms like hallucinations, delusions, severe agitation, or inappropriate affect. (R. 526). Dr. Kravitz has to harken back to school records for some evidence to put his finger on, and noted that Mr. Hobbs had "always been a limited kid." (R. 528). The question, for Dr. Kravitz, was one of credibility of Mr. Hobbs and his mother. (R. 526). The doctor was hesitant to give an opinion as to whether Mr. Hobbs could work and his testimony went back and forth. He thought Mr. Hobbs would be capable of understanding and carrying out short, simple instructions and dealing with superficial contact with co-workers and supervisors, and incidental contact with the public. He could do a job like cleaning tables at a fast-food restaurant. (R. 528). He thought Mr. Hobbs could work in a competitive environment, but then hedged and said maybe he couldn't. (R. 529). He might not be able to do so once he was outside the home on his own. (R. 529). In the end, Dr. Kravitz said he probably could not work in a competitive environment. (R. 529).
Finally, Ms. Entenberg testified as a vocational expert. She testified that a person of Mr. Hobbs's age and educational background who had the capacity to perform simple 1-2-3 step tasks, no joint tasks, but could work around other employees and have incidental exposure to the public, and deal with limited supervision in a routine, predictable environment could do a job like dishwasher, of which there were 10,000 in the Chicago regional economy. (R. 532). At this point, Ms. Walker interrupted and said she couldn't get Mr. Hobbs to wash dishes at home. (R. 532). Continuing with her testimony, Ms. Entenberg said he could also do janitorial work; there were 40,000 such jobs in the regional economy. (R. 532-33). Ms. Entenberg assured the ALJ that her testimony was in conformity with the Dictionary of Occupational Titles. (R. 534). Mr. Hobbs's counsel noted there might be a hygiene issue, but the VE said that was a vague question. And the ALJ pointed out that Mr. Hobbs looked fine at the hearing, but at the same time acknowledged what Ms. Walker had said about cleaning him up especially for the hearing. (R. 533-34).
The ALJ found that Mr. Hobbs suffered from the following severe impairments: cognitive disorder, schizophrenic disorder, cannabis abuse. (R. 22). The ALJ next determined that he did not have an impairment or combination of impairments that met or equaled a listed impairment. (R. 20). She specifically found that Mr. Hobbs's mental impairments did not meet or equal the criteria for schizophrenic disorders (12.02), affective disorders (12.04), or substance addiction disorders (12.09). (R. 22). The ALJ determined that Mr. Hobbs had only a mild restriction in activities of daily living, moderate difficulties in social functioning, moderate difficulties in concentration persistence and pace, and no episodes of decompensation. (R. 22-23).
The ALJ went on to determine that Mr. Hobbs had the residual functional capacity to perform work at any exertional level that was limited to simple, one- to three-step tasks; with incidental exposure to the public; he should not perform joint tasks, but could work around other employees with limited supervision in a routine, predictable environment. (R. 24). Here, the ALJ summarized Mr. Hobbs's testimony and his mother's, and the medical evidence. (R. 25-30). Along the way, she noted that the testimony of Mr. Hobbs and his mother was inconsistent, as were their statements to the consultative examiner. (R. 27-28). Mr. Hobbs lied about his arrest record and drug abuse. (R. 28). The ALJ found his testimony and that of his mother not fully credible. (R. 27)
The ALJ accorded little weight to the opinion of Mr. Hobbs's treating psychiatrist, noting it was inconsistent with her treatment notes, was rather conclusory and unsupported by the medical record, and she had a limited treatment relationship with him. (R. 28). The ALJ accorded great weight to the opinions of the agency reviewing psychologists because they were consistent with the credible evidence in the record. (R. 29). She accorded limited weight to the opinion of the medical expert, Dr. Kravitz, because he relied too heavily on subjective reports from Mr. Hobbs and his mother despite acknowledging credibility issues with their claims. (R. 29). Finally, the ALJ relied on the vocational expert's testimony to determine that Ms. King could perform work that existed in significant numbers in the regional economy and, therefore, found her not disabled and not entitled to SSI under the Act. (R. 33).
The applicable standard of review of the Commissioner's decision is a familiar one. The court must affirm the decision if it is supported by substantial evidence. 42 U.S.C. §§ 405(g). Substantial evidence is such relevant evidence as a reasonable mind might accept to support a conclusion. Berger v. Astrue, 516 F.3d 539, 544 (7
While the standard of review is deferential, the court cannot act as a mere "rubber stamp" for the Commissioner's decision. Scott v. Barnhart, 297 F.3d 589, 593 (7
As occurs so often where catch phrases are involved, the phrase, "logical bridge" has taken on a life of its own as though it were some self-defining and exacting test, which requires that an ALJ's decision be viewed grudgingly. But, as Justice Holmes warned, courts must be wary of the uncritical and indiscriminate use of labels and catch phrases: "It is not the first use but the tiresome repetition of inadequate catch words upon which I am observing—phrases which originally were contributions, but which, by their very felicity, delay further analysis...." Holmes, Law and Science and Science and Law, 12 Harv. L.Rev. 443, 455 (1899). See also Lorenzo v. Wirth, 170 Mass. 596, 600, 49 N.E. 1010 (1898) (Holmes, J.)("Too broadly generalized conceptions are a constant source of fallacy").
Indeed, Judge Posner, who first used the phrase in a Social Security context in his opinion in Sarchet, would be the first to acknowledge that it was not meant as a self-defining test or formula. Compare, e.g., United States v. Edwards, 581 F.3d 604, 608 (7th Cir.2009)("We recall Holmes's admonition to think things not words...."); Peaceable Planet, Inc. v. Ty, Inc., 362 F.3d 986, 990 (7th Cir.2004). The point Judge Posner sought to make in Sarchet was that unexplained conclusions by Administrative Law Judges, as with federal judges, are not persuasive and preclude meaningful appellate review. But there is nothing particularly novel about that conclusion, as Sarchet, itself, recognized with its reliance on Herron v. Shalala, 19 F.3d 329 (7th Cir.1994). There, the court said: "Our cases consistently recognize that meaningful appellate review requires the ALJ to articulate reasons for accepting or rejecting entire lines of evidence.
Although a written evaluation of each piece of evidence or testimony is not required, neither may the ALJ select and discuss only that evidence that favors his ultimate conclusion. We have repeatedly stated that the ALJ's decision must be based upon consideration of all the relevant evidence, and that the ALJ `must articulate at some minimal level his analysis of the evidence.' "Id. at 333-334 (citations omitted). Thus, Sarchet never intended that the "logical bridge" requirement compel or warrant a hypercritical approach to an ALJ's decision. The "logical bridge" requirement is not about elegantia juris or aesthetics. The ALJ need not build the Pont Neuf. Any span will suffice so long as it allows the reviewing court to traverse the path from the evidence to the conclusions. The ALJ's explanations in this case do that.
The Social Security Regulations provide a five-step sequential inquiry to determine whether a plaintiff is disabled:
20 C.F.R. §§ 404.1520; Simila v. Astrue, 573 F.3d 503, 512-13 (7
Mr. Hobbs has four complaints about the ALJ's decision: the ALJ's treatment of Dr. Chou's opinion that he is totally disabled; a supposed conflict between the VE's testimony and the Dictionary of Occupational Titles ("DOT"); a supposed flaw in the ALJ's hypothetical to the VE; and the ALJ's assessment of his credibility. We will take that last one first because this case turns on the credibility of Mr. Hobbs and his mother, from their allegations to the ALJ, to their presentations to the only two mental healthcare professionals on record as having examined Mr. Hobbs. Any other argument that Mr. Hobbs might have made is deemed waived. Thompson v. Colvin, 575 Fed.Appx. 668, 675 (7
This case shows that Social Security hearings are not exempt from the basic axiom of experience that parties will exaggerate when it is to their advantage. Schmude v. Tricam Industries, Inc., 556 F.3d 624, 628 (7th Cir.2009); Johnson v. Barnhart, 449 F.3d 804, 805 (7th Cir.2006); Brown v. Chater, 87 F.3d 963, 965-66 (8th Cir.1996).
An ALJ does not have to believe an applicant for benefits. Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir.1996), and a reviewing court must give special deference to an ALJ's credibility determination. Schomas v. Colvin, 732 F.3d 702, 708 (7
Thus, the undeviating rule to be applied in reviewing an ALJ's credibility determination is that review is deferential. Schaaf v. Astrue, 602 F.3d 869, 875 (7th Cir.2010); Simila v. Astrue, 573 F.3d 503, 517 (7th Cir.2009). We look to whether the ALJ's reasons for discrediting testimony are unreasonable or unsupported, and we "`give the opinion a commonsensical reading rather than nitpicking at it.' Accordingly, we will overturn the ALJ's credibility determinations only if they are `patently wrong.'" Murphy v. Colvin, 759 F.3d 811, 816 (7th Cir.2014); Bates v. Colvin, 736 F.3d 1093, 109-8 (7th Cir.2013); Castile v. Astrue, 617 F.3d 923, 929 (7th Cir.2010). That occurs only when the determination "lacks any explanation or support." Murphy, supra; Elder, 529 F.3d. at 413-14; Berger, 516 F.3d at 546; Allord v. Barnhart, 455 F.3d 818, 821 (7th Cir.2006). Demonstrating that a credibility determination is patently wrong is a "high burden." Turner v. Astrue, 390 Fed.Appx. 581, 587 (7th Cir.2010). See also Milliken v. Astrue, 397 Fed.Appx. 218, 225 (7th Cir.2010)(describing the burden as "heavy.").
All an ALJ need do is minimally articulate legitimate reasons for disbelieving a claimant. Carter v. Colvin, 556 Fed.Appx. 523, 527 (7
Mr. Hobbs does not attack the balance of the ALJ's reasoning, at least not until his reply brief, but that is too late. "Arguments raised for the first time in a reply brief, however, are waived." Favela v. Vicari, ___ Fed.Appx. ___, ___, 2014 WL 1891137, 2 (7
The ALJ noted that, despite alleging a crippling psychological impairment, Mr. Hobbs sought treatment on just a few occasions, which were confined to a single year, 2011. (R. 27). Given Ms. Walker's allegations that her son's condition was so severe that he would hide under his bed or in his closet every few days and not come out, the ALJ understandably and properly questioned why there was no record of at least emergency room treatment. See Shauger v. Astrue, 675 F.3d 690, 696 (7
Ms. Walker first said it was because she couldn't afford it and she had no idea that free treatment was available at the county hospital, Stroger Hospital, or elsewhere. She oddly testified that they would not see her son at the Stroger Hospital because they wanted him to see their doctors. If they wanted him to see their doctors, why not take him there to see them? Free or low cost treatment is available there; the website for the hospital clearly states that "[n]o patient will be denied cook County Health and Hospitals Services based on ability to pay. http://www.cookcountyhhs.org/patient-services/billing-financial-assistance/. Of course, Ms. Walker and her family can access that website. We know they have a computer and internet service because Ms. Walker has said that Mr. Hobbs spends much of his time using it to watch porn.
The story was, as the ALJ indicated, a difficult one to buy. This is especially so given the fact that Ms. Walker later changed her story, claiming that she couldn't take her son for treatment at the clinic because she was busy with her older son, walking him to the clinic. (She therefore knew the clinic gave free care, contrary to her initial claim). Of course, without a job, it is unclear why Ms. Walker did not have the time to take advantage of treatment at the clinic for Mr. Hobbs, who suffered from the same impairment as her older son — or why she couldn't take them together for treatment. Her story was implausible, and implausibility, like prior inconsistencies, can be considered in making credibility determinations. See Tijani v. Holder, 628 F.3d 1071, 1089 (9
Mr. Hobbs argues that the Seventh Circuit in Hughes v. Astrue, 705 F.3d 276, 278 (7
Mr. Hobbs also criticized the ALJ's consideration of his daily activities in her credibility assessment, even though such an assessment is perfectly appropriate Warren v. Colvin, 565 Fed.Appx. 540, 545 (7
While the ability to perform limited daily activities does not warrant the conclusion that the applicant is able to perform full-time work, Bjornson v. Astrue, 671 F.3d 640, 647 (7
Finally, and most significantly, there is the record of inconsistent statements from Mr. Hobbs and his mother and the ALJ's consideration of them in finding the witnesses not credible. Even minor discrepancies in testimony can form the basis of a valid, adverse credibility finding. Bates v. Colvin, 736 F.3d 1093, 1098 (7
In his reply brief — again, that's too late, Appert v. Morgan Stanley Dean Witter, Inc., 673 F.3d 609, 622 (7
(Dkt. #23, at 6). This is a significant distortion of the record. First of all, the exchange between the ALJ and Mr. Hobbs was not so cryptic. It actually went like this:
(R. 501(emphasis supplied)).
The ALJ gave Mr. Hobbs four chances to come clean, and she made it clear she meant absolutely no trouble — not just recent trouble. Mr. Hobbs himself said he had had "no trouble at all." Moreover, Mr. Hobbs did not, as his brief asserts, explain — at least not exactly — that he thought the ALJ's question was confined to current trouble with the police. It was more that he didn't think his arrest was serious and didn't count because it was only once:
(R. 512)(Emphasis supplied).
So the explanation in Mr. Hobbs's brief rings hollow. Mr. Hobbs's mother even said he had been lying, not confused — and that's quite a concession coming from her. She even went so far as to indicate that he had no qualms about lying under oath. (R. 512). That's really not the kind of person that should be quibbling about the ALJ's adverse credibility determination in this case.
But Mr. Hobbs presses on, complaining about the ALJ having pointed out that he lied about his drug use to the consulting psychologist. Here is Mr. Hobbs's explanation for the obvious and highly significant impeachment:
(Dkt. #23, at 6-7).
The difficulty with Mr. Hobbs's rendition of his examination with Dr. Karr is that it is false. It mischaracterizes the record in violation of a lawyer's most basic duty to a tribunal — namely the duty of candor. See United States Dep't of Hous. and Urban Dev. v. Cost Control Mktg. & Sales Management of Va., Inc., 64 F.3d 920, 925 (4th Cir.1994) ("a lawyer's duty of candor to the court must always prevail in any conflict with the duty of zealous advocacy"); United States v. Shaffer Equip. Co., 11 F.3d 450, 458 (4th Cir.1993) ("the lawyer's duties to ... advocate vigorously are trumped ultimately by a duty to guard against the corruption that justice will be dispensed on an act of deceit"); Beam v. IPCO Corp., 838 F.2d 242, 249(7th Cir.1988).
Contrary to the speculation in Mr. Hobbs's brief, the record reveals that Dr. Karr reported that he specifically asked Mr. Hobbs about past and present marijuana use. There is simply no basis to warrant the brief's insinuation that maybe Dr. Karr was less than precise, thereby sanitizing Mr. Hobbs's palpably false assumption that Dr. Karr might have been less than exact. There's no evidence of any mistake on the part of Dr. Karr — in contrast to the wealth of evidence that undermines Mr. Hobbs's credibility. Not surprisingly, Mr. Hobbs prefers the speculation to proof, even though "hypothesis is not proof," Lauth v. McCollum, 424 F.3d 631, 634 (7th Cir.2005) (Posner, J.), and speculation can never be an adequate substitute for proof. United States v. Landry, 257 F.2d 425, 431 (7th Cir.1958). Accord In re Cohen, 507 F.3d 610, 614 (7th Cir.2007) (speculation is not evidence); United States v. Holland, 445 F.2d 701, 703 (D.C.Cir.1971) ("The trouble with absence of evidence is that it is consistent with any hypothesis.")(Emphasis in original).
The record is replete with what the ALJ could quite properly find were Mr. Hobbs's mother's dissimulations, which his brief carefully puts out of view. She unabashedly lied to Dr. Karr as well. At the first exam, she said smoking marijuana was one of her son's number one activities, that he did it every day, and that she gave him the money for it. The next time she had her son see Dr. Karr, she said that her son had never used marijuana to her knowledge. This is stark mendacity, not confusion about timeframes. There was absolutely no reason for the ALJ to doubt Dr. Karr given what he could find were the obvious distortions of Mr. Hobbs and his mother. An ALJ is not forced to look for zebras to explain the presence of hoofprints.
Mr. Hobbs closes his attack on the ALJ's well-reasoned and unsurprisingly adverse credibility finding by asserting that it does not make sense that he would deny his drug use to the same doctor he had admitted it to before. Well, it makes sense if he is willing to lie to obtain benefits, as he and his mother appeared to the ALJ to have done. See Johnson v. Barnhart, 449 F.3d 804, 805 (7
In short, the record provided ample reasons for the ALJ to disbelieve Mr. Hobbs and his mother and she used them. But their dishonesty infects not only their testimony before the ALJ, but their reports to mental healthcare professionals as well. And this provides a segue to Mr. Hobbs's complaints about the ALJ's treatment of the medical opinions in this case.
The ALJ accorded the opinion of Mr. Hobbs's treating doctor, Dr. Chou, little weight because it was a conclusory statement unsupported by the record, was inconsistent with her own treatment notes, and because she had just a brief treatment history with Mr. Hobbs. (R. 28). An ALJ need not accept the opinion of a treating physician that a claimant is disabled as long as she can provide good reasons for rejecting it. Punzio v. Astrue, 630 F.3d 693, 698 (7th Cir.2011); Larson v. Astrue, 615 F.3d 744, 749 (7th Cir.2010). The ALJ did just that here, and each of the reasons she offered was a valid one. See Schmidt v. Astrue, 496 F.3d 833, 842 (7
Mr. Hobbs finds fault with the ALJ's determination that Dr. Chou's opinion was inconsistent with the medical evidence, including Dr. Chou's own treatment notes. But, it clearly was. The worst Dr. Chou's treatment notes indicated was that, on some occasions, Mr. Hobbs had a blunt affect. On others his affect was positive — euthymic. From there it is quite a leap to disabling schizophrenia. There was, as the medical expert testified, no workup to support a diagnosis of schizophrenia, let alone a disabling level of that impairment. (R. 524, 525-26). Dr. Chou said that Mr. Hobbs was on the maximum dosage of medication, and it did no good. But, she actually had not prescribed the maximum dose and also said he was not taking it.
But Mr. Hobbs was apparently complying with treatment and that treatment was effective when his mood was euthymic and neither he nor his mother had any complaints. Indeed, one might say treatment was effective if the only reported symptom was a blunt affect. There were certainly contradictions and inconsistencies in Dr. Chou's reports, and the ALJ didn't have to ignore them.
Mr. Hobbs contends that the medical expert testified that Dr. Chou's opinion and diagnosis were supported by objective findings. But Dr. Kravitz actually testified to the contrary. He said, based on the evidence, Dr. Chou's diagnosis was "problematic." (R. 524). He couldn't say for sure what prompted the diagnosis, but his "best guess" was Mr. Hobbs presenting with a blunt affect. But the diagnosis was "not really supported by the [inaudible] file." (R. 525). There were no symptoms like hallucinations, delusions, severe agitation, inappropriate affect, so the diagnosis was "not really correct." (R. 525-26).
The ALJ also noted that Dr. Chou offered some conflicting statements as well. Again, she said that Mr. Hobbs was disabled despite being on the highest possible dosage of medication, but also said he wasn't taking it. It can't have been both. And, as the ALJ said, she did have a limited treating relationship with Mr. Hobbs. As such, she did not have the "longitudinal" perspective on Mr. Hobbs that treating physicians often bring to the table. "It would be exceedingly illogical to credit a doctor's opinion because he is more likely to have a detailed and longitudinal view of the claimant's impairments when in fact, there is no detail or longitudinal view." Scheck v. Barnhart, 357 F.3d 697, 702-03 (7th Cir.2004); Dornseif v. Astrue, 499 Fed.Appx. 598, 600 (7
Dr. Chou's briefly jotted notes are a good example of why treating physician's opinions that their patients are disabled may sometimes be regarded with suspicion. As the Seventh Circuit has repeatedly held, a treating physician may want to do a favor for his patient seeking benefits and too quickly find disability. Schmidt v. Astrue, 496 F.3d 833, 842 (7
Mr. Hobbs's brief argues that the ALJ cited no medical evidence to support his assessment of Dr. Chou's opinion. (Dkt. # 17, at 9). But the ALJ discussed the medical evidence fairly thoroughly. (R. 25-27). It's just that there wasn't much of it. If Mr. Hobbs is arguing that the ALJ had go back and reiterate the medical evidence in connection with his discussion of Dr. Chou's opinion, that's going a bit too far with the logical bridge requirement. All that is needed is that the ALJ articulate his decision adequately enough to allow for a meaningful review. Kastner v. Astrue, 697 F.3d 642, 648 (7
Mr. Hobbs also argues that the ALJ should have attributed great weight to Dr. Kravitz's opinion. But the ALJ properly rejected it because it relied too heavily on subjective reports. (R. 29). Like the reasoning the ALJ provided in connection with her rejection of Dr. Chou's report, this is a perfectly acceptable rationale under Seventh Circuit precedent. See Filus v. Astrue, 694 F.3d 863, 868 (7
In the end, even when Dr. Kravitz uncritically accepted the allegations of Mr. Hobbs and his mother, as already discussed, the doctor's opinion was rather equivocal. On the one hand he said Mr. Hobbs could do a simple job like clean tables at a restaurant. On the other, he couldn't do competitive work. The ALJ did not err by refusing to assign his opinion great weight.
Next, Mr. Hobbs argues that the ALJ failed to resolve a conflict between the VE's testimony and the DOT. Notably, the ALJ specifically asked the VE whether her testimony conflicted with the DOT. She said no. (R. 534). If a vocational expert's testimony "appears to conflict with the dictionary," SSR 00-4p requires an ALJ to obtain "a reasonable explanation for the apparent conflict." Overman v. Astrue, 546 F.3d 456, 463 (7
Indeed, Mr. Hobbs does not even attempt to make such a showing. He submits that the DOT indicates that the jobs of janitor and dishwasher have reasoning levels of 2, which require the ability to "apply commonsense understanding to carry out detailed but uninvolved written or oral instructions." (Dkt. # 17, at 11) (emphasis supplied). According to Mr. Hobbs, if he is limited to simple one- to three-step tasks, he does not have the capacity to carry out detailed instructions. (Dkt. #17, at 11). Mr. Hobbs does not explain how this purported conflict could be obvious when he did not notice it at the hearing and later had to go through some effort to unearth it.
Indeed, Mr. Hobbs's reference to the DOT begs the question of whether there is a conflict at all. He certainly has the capacity to carry out uninvolved instructions. He ignores the "uninvolved" portion of the DOT's definition, but detailed but uninvolved instructions would certainly seem to be within the grasp of someone capable of simple one- to three-step work. Cf. Terry v. Astrue, 580 F.3d 471, 478 (7
Finally, Mr. Hobbs complains that the ALJ's hypothetical to the VE limited him to simple one- to three-step tasks did not adequately account for his moderate limitations in concentration, persistence, or pace. (Dkt. # 17, at 12-13). Mr. Hobbs relies exclusively on O'Connor-Spinner v. Astrue, 627 F.3d 614, 619 (7
While the most effective way to ensure that the VE is apprised fully of the claimant's limitations is to include them directly in the hypothetical, there is no requirement that the terminology "concentration, persistence, or pace" be used. 627 F.3d at 619. Here, the ALJ translated her finding that Mr. Hobbs was moderately limited in concentration, persistence, or pace into a limitation to simple, one- to three-step jobs. By doing so, she offered the VE a more concrete idea of Mr. Hobbs's limitations than had the state agency physician, Dr. Havens, who had expressed Mr. Hobbs moderate limitation as a restriction to "simple assignments . . . repetitive, routine tasks." (R. 454).
Dr. Havens' articulation is the kind that the Seventh Circuit found wanting in O'Connor-Spinner. 627 F.3d at 620 (". . . limiting a hypothetical to simple, repetitive work does not necessarily address deficiencies of concentration, persistence and pace."). The ALJ improved upon it and, while not perfect, her articulation was adequate.
Beyond that, Mr. Hobbs confusingly argues that, in order to compensate for his moderate difficulties in concentration in this manner, the ALJ had to find that those difficulties "were due to performing tasks which were more than three steps." (Dkt. #17, at 13). It is unclear how performing tasks of more than three steps would result in concentration deficiencies, and had the ALJ made such a finding, one would have to question her logic. The argument makes no sense.
The plaintiff's motion for summary judgment or remand [Dkt. #16] is DENIED, and the Commissioner's motion for summary judgment [Dkt. # 21] is GRANTED.
