NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 23, 2014*
Decided May 27, 2014
Before
ANN CLAIRE WILLIAMS, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 13-2755
ROBERT CARTER, Appeal from the United States District
Plaintiff-Appellant, Court for the Central District of Illinois.
v. No. 12-1129
CAROLYN W. COLVIN, Michael M. Mihm,
Acting Commissioner of Social Security, Judge.
Defendant-Appellee.
ORDER
Robert Carter, a 56 year-old who suffers from depression and abuse of alcohol
and cocaine in remission, appeals the district court’s judgment upholding the denial of
his application for Disability Insurance Benefits and Supplemental Security Income.
Carter argues that the record belies the administrative law judge’s determination that
*
After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
No. 13-2755 Page 2
he was “malingering”1 before his date last insured and that the ALJ improperly
discredited his testimony regarding the severity of his impairments. Because substantial
evidence supports the ALJ’s conclusion that Carter was not disabled, we affirm.
The earliest reports in the administrative record of Carter’s mental health date
back to 1998, when he was transferred from Cook County Jail to Chester Mental Health
Center for an evaluation of his fitness to stand trial on charges of burglary, escape, and
violating probation. He reported to doctors at Chester that he had five prior psychiatric
hospitalizations and that he was hallucinating. But a prison psychiatrist discredited
Carter’s reports of hallucinations and concluded that, although he had a history of
polysubstance dependence and antisocial personality disorder, he was “obviously”
malingering. He was found fit for trial.
In 2006 Carter, released on parole just days earlier, was hospitalized after
reportedly experiencing a nervous breakdown and a “major relapse” in substance
abuse. He was diagnosed with a mood disorder induced by alcohol and cocaine,
dependence on alcohol and cocaine, and antisocial personality disorder, and prescribed
anticonvulsant and antipsychotic medications.
Back in prison a year and a half later, Carter reported hallucinations and
depression. A prison psychiatrist discounted Carter’s “report of psychotic features” as
“somewhat self serving and strongly suggestive of exaggeration” and speculated that
Carter’s “motivation for partial malingering might be to obtain hypnotic medication” or
Supplemental Security Income. For the next several months until his release from
prison, Carter was prescribed an antidepressant, which he later told medical staff was
“doing me a lot of good.”
Soon after his release, Carter applied for Social Security benefits, alleging that he
had become disabled as of January 1997 because of depression, a nervous breakdown,
and “emotional instability.” He completed and submitted a report in support of his
application describing his difficulty concentrating and following instructions. In
connection with his application, Carter underwent a mental status examination and
1
“Malingering” is defined in the DSM-V as the “intentional production of false
or grossly exaggerated physical or psychological symptoms, motivated by external
incentives such as avoiding military duty, avoiding work, obtaining financial
compensation, evading criminal prosecution, or obtaining drugs.” American Psychiatric
Association, Diagnostic and Statistical Manual of Mental Disorders 726 (5th ed. 2013).
No. 13-2755 Page 3
reported experiencing “severe depression” and frequent hallucinations (several per
day). The state-examining psychologist concluded that Carter had severe major
depressive disorder, alcohol and cocaine abuse in remission, and antisocial personality
disorder.
In 2009 Carter’s application for benefits was denied initially and on
reconsideration.
Later that year a psychologist consulting for the Social Security Administration
assessed Carter’s functional limitations and concluded that there was insufficient
evidence to assess the severity of Carter’s impairments before 2000, his date last
insured. The psychologist described Carter’s impairments after 2000 as severe but noted
that “several sources have questioned the veracity” of Carter’s symptoms and that
Carter had the mental residual functional capacity to perform unskilled tasks on a
sustained basis.
Carter was again incarcerated in 2011, when he had a video hearing before an
ALJ and testified about his mental limitations. He said that he could not function
without his medication, which helped stabilize his mood and control his anger. Because
he was depressed, he told the ALJ, he had a “hard time getting up and moving around
sometimes.” He testified further that he did construction work in 2007 until his
employer discovered his criminal background and fired him. Testimony was also
presented by a vocational expert, who was asked about work available to a hypothetical
claimant of Carter’s age with a high school education and no past relevant work, who
could perform simple tasks, interact superficially with coworkers and supervisors but
not with others, and tolerate minor changes in routine. The vocational expert opined
that such a claimant would be able to work as a machine feeder, marker, or fastener.
However, the vocational expert added that this claimant would not be competitively
employable if he could not concentrate or work persistently throughout a two-hour
period.
The ALJ applied the five–step evaluation process and denied Carter’s application
for Disability Insurance Benefits and Supplemental Security Income. See 20 C.F.R.
§§ 404.1520, 416.920. The ALJ concluded that Carter had not worked since his alleged
onset date (step 1); his major depressive disorder and abuse of alcohol and cocaine in
remission were severe impairments, but he did not show that he had those impairments
No. 13-2755 Page 4
before his date last insured2 (step 2); his impairments or combination of impairments
did not meet or equal a listed impairment (step 3); he did not have any past relevant
work, but had the residual functional capacity to work at all exertional levels with some
limitations (that he perform simple, routine, repetitive tasks; make simple decisions;
interact only superficially with coworkers and supervisors but not with the public; and
experience only minor changes in routine) (step 4); and suitable jobs were available in
the national economy, including work as a machine feeder and fastener (step 5). In
addressing step 4, the ALJ discredited Carter’s allegations of disabling limitations,
pointing out that Carter was able to work for several months as a construction laborer
until being fired for non-medical reasons; he was able to participate in the hearing
closely and fully without being distracted; he had been malingering, in the opinion of
treating psychiatrists; and his symptoms had significantly improved with routine and
conservative treatment.
After the Appeals Council denied review, Carter sought judicial review, 42
U.S.C. §§ 405(g), 1383(c)(3), arguing that the ALJ erred at step 2 by finding him not
disabled before his date last insured. Carter asserted that the record contained nearly
200 pages of medical evidence and that the ALJ failed to consider submissions from
either the state-examining psychologist or a prison counselor corroborating that he was
depressed.
The district court upheld the ALJ’s decision. The ALJ did not err at step 2, the
court determined, because the only record evidence predating Carter’s date last insured
showed that—despite his history of mental-health issues—he had been found to be
malingering and fit to stand trial. Further, neither the psychologist’s report nor the
counselor ‘s submission (which was not part of the administrative record) suggested
that Carter had disabling limitations or otherwise undermined the ALJ’s conclusion that
Carter was not disabled.
Carter maintains on appeal that the ALJ erred at step 2 in finding that the
evidence predating his date last insured did not show that he was disabled. In one of his
appellate briefs, he attaches new documents—hospital-discharge summaries and a
psychiatric evaluation—showing that in 1985, 1988, and 1994 he was diagnosed with
2
This finding rendered him ineligible for Disability Insurance Benefits but not
Supplemental Security Income, which is available to people with disabilities who have
low income and few assets, regardless of their work history or insured status. See 42
U.S.C. § 1382(a).
No. 13-2755 Page 5
bipolar disoder, hallucinosis, schizoaffective disorder, and schizophrenia. But we will
not review evidence that was not before the ALJ. See 42 U.S.C. § 405(g); Rice v. Barnhart,
384 F.3d 363, 366 n.2 (7th Cir. 2004). As the district court found, the only record
evidence predating Carter’s date last insured was medical reports confirming his fitness
to stand trial. Although those reports also reflect Carter’s diagnoses of substance
dependency and antisocial personality disorder, they do not suggest that those
impairments were disabling. Substantial evidence thus supports the ALJ’s
determination that Carter is not entitled to Disability Insurance Benefits. See 42 U.S.C.
§ 416(I).
Carter next argues, for the first time on appeal, that the ALJ’s credibility
determination was flawed because the ALJ used “boilerplate” that we have repeatedly
criticized: “[T]he claimant’s statements concerning the intensity, persistence and
limiting effects of these symptoms are not credible to the extent they are inconsistent
with the above residual functional capacity assessment.” See, e.g., Bjornson v. Astrue, 671
F.3d 640, 644–46 (7th Cir. 2012); Martinez v. Astrue, 630 F.3d 693, 694 (7th Cir. 2011);
Parker v. Astrue, 597 F.3d 920, 921–22 (7th Cir. 2010). But this boilerplate does not
necessarily undercut the ALJ’s decision; we will uphold the ALJ’s credibility
determination if the ALJ provided specific and legitimate reasons for discrediting the
claimant’s testimony. See Filus v. Astrue, 694 F.3d 863, 868 (7th Cir. 2012). The ALJ here
disbelieved Carter’s testimony for a number of legitimate reasons, including the
repeated opinions of psychiatrists that Carter was malingering; Carter’s demeanor at
the video hearing; and Carter’s request to a doctor—two months after applying for
Social Security benefits—seeking medical verification that he was “mentally cleared to
work.” See Bates v. Colvin, 736 F.3d 1093, 1098 (7th Cir. 2013) (demeanor); Powers v. Apfel,
207 F.3d 431, 435–36 (7th Cir. 2000) (same).
Finally, Carter has filed a motion to supplement the record with a document
from the Cook County Department of Corrections verifying that, contrary to his
testimony that he worked in 2007, he was in fact incarcerated at that time and thus
unable to have worked. But again, we will not review evidence that was not before the
ALJ. See 42 U.S.C. § 405(g); Rice, 384 F.3d at 366 n.2. Thus, we DENY Carter’s motion to
supplement the record.
We have reviewed Carter’s remaining contentions, and none has merit.
AFFIRMED.