NONPRECEDENTIAL DISPOSITION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 November 19, 2014*
Decided December 4, 2014
Before
DIANE P. WOOD, Chief Judge
MICHAEL S. KANNE, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 14‐1692
DONEL R. GULLY, JR., Appeal from the United States District
Plaintiff‐Appellant, Court for the Southern District of Illinois.
v. No. 12‐cv‐1063
CAROLYN W. COLVIN, Michael J. Reagan,
Acting Commissioner of Social Security, Chief Judge.
Defendant‐Appellee.
O R D E R
Donel Gully, a 50‐year‐old who suffers from leg pain and mental illness, appeals
the district court’s judgment upholding the denial of his application for supplemental
security income. He argues that the administrative law judge erred by finding him not
credible and by overstating his residual functional capacity. Because the ALJ’s credibility
determination is not patently wrong and substantial evidence supports the RFC
determination, we affirm the district court’s judgment.
* We granted the parties’ joint motion to waive oral argument. See FED. R. APP.
P. 34(f). Thus, the appeal is submitted on the briefs and the record.
No. 14‐1692 Page 2
Gully was shot several times in the right leg by a police officer in October 2007.
The bullets shattered his thigh bone just above the knee and fractured his shinbone. He
underwent multiple surgeries at St. Louis University Hospital; plates were attached to
both of the fractured bones. When Gully returned to the hospital the following month to
have the surgical staples removed, he reported that he was experiencing unbearable
pain—burning and aching in his leg and foot that kept him up at night. A doctor
examined Gully, noted that the wounds were healing normally, and prescribed pain
medication.
During the next couple of months, Gully had two more follow‐up visits to the
hospital and complained of pain each time. Both times the doctor prescribed pain
medication and physical therapy. At the second visit, the doctor noted that Gully would
“be seen back in 3 months,” but Gully never returned for a checkup.
Gully applied for supplemental security income almost two years later, in
October 2009, alleging that he was disabled because he had been shot and thus had “no
use of [his] right leg.” His application contained conflicting information about the onset
date of his disability: he answered on the application that this injury “first interfere[d]”
with his ability to work in “10/2007,” but stated later on the same page that he “became
unable to work” because of the injury a year earlier—on “11/08/2006.” Gully also stated
that he had never worked, but tax records obtained by the agency show that Gully has
reported income for 11 years since 1986.
Gully later supplemented his application with a completed “function report”
form describing his leg pain. He wrote that he soaked his leg in hot water every day to
ease the pain, that he was unable to stand for more than 20 minutes or walk more than a
couple of blocks at a time because of the pain, and that he sometimes did chores like
making his bed or washing the dishes but usually did not make his own meals.
Gully also reported on the form that he had mental limitations related to his leg
injury. He stated that, although he had “no problem pay[ing] attention” or managing
his finances, the pain from the injury affected his concentration and ability to complete
tasks. Gully explained that, because of the pain, he was depressed, he spent many days
“recovering from crying spells,” and he had problems getting along with people.
In October 2009, an agency field officer interviewed Gully and noticed no
physical or mental difficulties. The officer wrote that Gully alleged having “no use” of
No. 14‐1692 Page 3
his right leg, yet he “was able to walk away from the interview and across the street
with no trouble.”
Two months later, Gully was examined by a state‐agency physician, internist
Vittal Chapa, who concluded that Gully had several limitations from his leg injury.
Dr. Chapa noted in his report that Gully’s right leg and ankle were swollen and had
limited range of motion, and that he had an antalgic gait (meaning that he walked so as
to avoid pain). Dr. Chapa also observed that Gully could not tandem walk, walk on his
toes or heels, or squat and arise, but that he had only mild difficulty getting on and off
the exam table. Gully told Dr. Chapa that he “occasionally” smoked marijuana but that
he didn’t smoke tobacco, abuse alcohol, or use any prescription drugs.
The following month, Gully was examined by a second state‐agency physician,
psychologist Harry Deppe, who diagnosed him with cannabis abuse, adjustment
disorder with mixed emotional features, and personality disorder with antisocial
features. Gully told Dr. Deppe that he had been incarcerated seven times, most recently
for possessing marijuana, and that he was last released from prison three months
before.1 He reported that he had last used marijuana two weeks before and that he had
a history of using the drug, but that he did not use alcohol and had never been treated
for substance abuse or any mental illness. Gully also recounted that he had last worked
in 2006 and had “been a mechanic off and on for years.” Based on the interview,
Dr. Deppe opined that Gully had only a fair ability to complete tasks on time, relate to
others, understand and follow simple instructions, maintain attention, and withstand
work‐related stress. He rated Gully’s Global Assessment of Functioning (GAF) score2 as
50; this score indicates serious symptoms such as suicidal ideation or a “serious
impairment in social, occupational, or school functioning.” AM. PSYCHIATRIC ASS’N,
DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM‐IV‐TR) 34 (4th ed.
2000); see Campbell v. Astrue, 627 F.3d 299, 307 (7th Cir. 2010) (noting that a GAF score of
50 reflects “serious symptoms or any serious impairment in functioning, for example,
being unable to keep a job”).
1 We note that a claimant may not receive any SSI for any months during which
he was imprisoned for a felony. See 42 U.S.C. § 1382(e)(1); 20 C.F.R. § 404.468.
2 Although the American Psychiatric Association no longer uses this metric,
see AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS
16 (5th ed. 2013), the GAF score was still in use at the time of the psychiatric evaluations
recounted in this record.
No. 14‐1692 Page 4
Glen Pittman, a psychiatrist consulting for the Social Security Administration,
reviewed Gully’s medical records and concluded that he had only “mild” functional
limitations. Dr. Pittman opined that Gully’s impairments—including antisocial
personality disorders, affective disorders, and an addiction to marijuana—were not
severe.
The Social Security Administration denied Gully’s application for benefits in
February 2010 and in June 2010 upheld the decision on reconsideration, concluding that
Gully was able to do sedentary work. Gully, who by this time was represented by an
attorney, requested a hearing before an ALJ.
Nine months before the hearing, Gully was examined in connection with his
application by psychiatrist S. A. Raza, who diagnosed him with post‐traumatic stress
disorder (caused by his having been shot), cannabis dependence, and major depressive
disorder. Dr. Raza reported that Gully had only fair cognitive abilities and that his
emotional and social abilities were poor. Dr. Raza rated Gully’s GAF score as 55,
indicating either moderate symptoms such as occasional panic attacks or “moderate
difficulty in social, occupational, or school functioning.” DSM‐IV‐TR at 34. Gully told
Dr. Raza that he already had seen three psychiatrists, most recently during the past
year. When asked about his education and employment history, Gully told Dr. Raza that
he was an “11th grade dropout” and that he used to have a lawn‐mowing service.
Dr. Raza noted that Gully “became tearful” during their conversation.
At his hearing before the ALJ in October 2011, Gully testified about his physical
and mental impairments.3 He said that he had been shot in the leg, back, ribs, and
spine; that he had rods and screws in his right leg; that he had sharp and burning pain
in his leg “every day, all day”; and that he had calluses on his left foot and pain in his
back from the way he had to walk. Gully testified that he could walk for 10 or 15
minutes, stand for 5 or 10 minutes, and lift about 75 pounds. He never stated how long
he could sit, but did say that he had to lie down “to get rid of the pain” when he sat for
a longer period. He also stated that he spent 13 to 14 hours a day lying down. Gully
said, as he had in his application, that he was shot in October 2007 but that he became
disabled a year earlier (he did not say how). He was able to shower independently, he
testified, but his father did all of the household chores. Gully explained that he never
had physical therapy because he couldn’t afford it and that, although pain medications
3 At the beginning of the hearing, Gully apparently became distraught, began
crying, and had to leave the room.
No. 14‐1692 Page 5
(like Vicodin) didn’t help the pain, he did soak his leg in the bathtub every day. He
testified that he couldn’t sleep because of the pain and that he used marijuana to fall
asleep but hadn’t used it recently because he had no money. He often had crying spells,
he said, and could not deal with crowds or strangers. The ALJ asked whether Gully had
tried to get treatment for his mental illness at a free clinic, and his lawyer replied that
there were no free clinics in the area. When questioned by the ALJ about his
employment history, Gully acknowledged for the first time that he had worked as a
janitor in 2002.
The ALJ asked a vocational expert about the work available to a hypothetical
claimant of Gully’s age who could do only light work involving simple, routine,
repetitive tasks that required only occasional contact with the public, co‐workers, and
supervisors. The vocational expert testified that such a claimant would be able to work
as a janitor, a cafeteria attendant, and an assembler of small products. When asked
whether there were any sedentary jobs with the same limitations, the vocational expert
responded that the only such job available was as an assembler of small products. The
vocational expert explained that, if the hypothetical claimant had no ability to follow
work rules, a poor ability to deal with co‐workers, the public, or supervisors, and a poor
ability to understand, remember, and carry out complex job instructions, the claimant
would be unable to do any of the jobs. She also stated that a person who needed to
spend 20 percent of the workday lying down would be unable to do even sedentary
work.
The ALJ applied the five‐step evaluation process and denied Gully’s application
for benefits. See 20 C.F.R. § 416.920. The ALJ concluded that Gully had not worked since
his application date (Step 1); that the injury to his leg was a severe impairment but that
his psychological disorders were not (Step 2); that his impairments did not meet or
equal a listed impairment (Step 3); that he was unable to perform his past relevant work
(Step 4); and that he could perform the full range of sedentary work (Step 5). In
assessing Gully’s residual functional capacity, the ALJ determined that Gully was not
credible because he had provided inconsistent information regarding the date he
became disabled, his work history, and his prior mental‐health treatment. The ALJ also
gave little weight to Dr. Raza’s opinion because, among other things, it relied heavily on
Gully’s subjective complaints and was inconsistent with Dr. Deppe’s report.
No. 14‐1692 Page 6
After the Appeals Council denied his request for review,4 Gully sued in federal
court. He argued that the ALJ had failed to provide a rational basis for his RFC
determination and that the ALJ’s credibility findings were “improper and insufficient.”
The district court upheld the ALJ’s decision. The court reasoned that the ALJ’s
use of boilerplate language did not warrant remand because the ALJ had supported his
conclusion “with reasons derived from the evidence.” Specifically, the ALJ had
thoroughly discussed Gully’s testimony and identified “obvious” discrepancies that cast
doubt on his credibility. The district court also concluded that the ALJ had a good
reason for giving little weight to Dr. Raza’s opinion regarding Gully’s mental and
psychological impairments: it was inconsistent with other evidence, it was inconsistent
with Gully’s daily activities, and it was based largely on Gully’s subjective complaints,
which were not credible.
On appeal, Gully repeats his argument that the ALJ made “improper and
insufficient credibility findings regarding Gully’s testimony.” He maintains that the
ALJ’s explanation of his credibility findings was inadequate because the findings were
not “specific,” and because the ALJ used boilerplate language when he wrote that
Gully’s “statements concerning the intensity, persistence, and limiting effects of such
symptoms ‘are not credible to the extent they are inconsistent with’ the ALJ’s RFC
determination.”
As the Commissioner points out, we have previously rejected similar arguments.
The use of boilerplate language does not undermine the ALJ’s credibility findings if the
ALJ otherwise justifies his conclusion. See Pepper v. Colvin, 712 F.3d 351, 367–68 (7th Cir.
2013); Shideler v. Astrue, 688 F.3d 306, 311–12 (7th Cir. 2012). The ALJ here gave a
legitimate reason for finding that Gully was not credible: Gully’s inconsistent statements
regarding the date he became disabled (asserting on his application both that he was
shot in October 2007 but that he became disabled in November 2006), his work history
(saying that he had never worked, when his earnings history showed that he had), and
his prior mental‐health treatment (telling Dr. Deppe that he had never received
4 Gully had asked the Appeals Council to review new evidence of a hand injury,
the result of being shot in the right hand two weeks after the ALJ denied his application.
The Council refused to consider the evidence because it did not affect the ALJ’s
determination that he was not disabled on or before December 1, 2011. The Council told
Gully that he could file a new claim if he wished to try to establish disability based on
the hand injury. On appeal, Gully makes no argument related to the hand injury.
No. 14‐1692 Page 7
treatment for mental illness but telling Dr. Raza that he had). See SSR 96‐7p, 1996 WL
374186, at *5 (“One strong indication of the credibility of an individual’s statements is
their consistency, both internally and with other information in the case record.”).
Because the ALJ provided support for his credibility determination, the determination is
not “patently wrong” and does not merit reversal. See Elder v. Astrue, 529 F.3d 408,
413–14 (7th Cir. 2008).
Gully next argues that, in assessing residual functional capacity, the ALJ failed to
consider all of his limitations—specifically, the mental illnesses diagnosed by Dr. Raza
and the leg swelling and limited range of motion noted by Dr. Chapa. But this argument
falters because the ALJ need only “minimally articulate” his reasoning for the weight
assigned to a physician’s opinion. See Filus v. Astrue, 694 F.3d 863, 869 (7th Cir. 2012);
Elder, 529 F.3d at 415. The ALJ’s explanation cleared this low bar. The ALJ noted that
Dr. Raza’s “report shows heavy reliance” on Gully’s subjective complaints. Given that
the ALJ had determined Gully was not credible, the ALJ logically assigned little weight
to Dr. Raza’s opinion. Moreover, the ALJ concluded that Dr. Raza’s opinion conflicted
with the opinion of Dr. Deppe, whose assessment reflected a higher ability to perform
work‐related activities. Gully does not argue that the ALJ’s conclusion was improper. As
for Dr. Chapa’s report, Gully contends that it supports “additional limitations,”
including “the need to lie down more than 20 percent of the workday, and more limited
standing and walking.” But Dr. Chapa never opined that Gully needed to spend so
much time lying down, and Gully does not explain how the ALJ’s assessment—that he
could, with normal breaks, lift 10 pounds occasionally, stand or walk for 2 hours a day,
and sit for 6 hours a day—didn’t adequately account for the limitations noted in
Dr. Chapa’s report.
In closing, we note that there are some problems with the ALJ’s analysis, but they
cannot serve as the basis for remand because Gully does not identify these
shortcomings in his brief (and thereby waives any such challenges). See Ramos v. City of
Chicago, 716 F.3d 1013, 1020 (7th Cir. 2013). The ALJ reasoned, for example, that the GAF
scores assessed by both Dr. Deppe and Dr. Raza were entitled to little weight because
Gully was using marijuana and not undergoing any treatment for his mental health. It
may be reasonable to assume that lack of treatment affected Gully’s GAF scores, but
neither doctor stated that the score was affected by his marijuana use, so the ALJ
arguably was playing doctor when he concluded that Gully’s marijuana use invalidated
the scores. See Browning v. Colvin, 766 F.3d 702, 705 (7th Cir. 2014) (ALJ was
impermissibly “playing doctor” by concluding that claimant’s ability to use sarcasm
invalidated her low IQ test score). And the ALJ was misguided when questioning
No. 14‐1692 Page 8
Gully’s assertion that he could not afford treatment despite being able to buy marijuana.
Gully had testified that other pain medications he tried didn’t work, and the ALJ never
considered the possibility that marijuana may be cheaper than prescription medications
or physical therapy. See McClesky v. Astrue, 606 F.3d 351, 353 (7th Cir. 2010). Gully does
allude to this problem with the ALJ’s analysis when he says that “[t]he ALJ
insufficiently accounted for [his] financial circumstances and his inability to afford
treatment and medications.” But he waived this argument by not developing it. See Bass
v. Joliet Pub. Sch. Dist. No. 86, 746 F.3d 835, 841 n.1 (7th Cir. 2014); Jordan v. Binns, 712
F.3d 1123, 1134 (7th Cir. 2013).
AFFIRMED.