Virgil L. Kelley v. CAROLYN COLVIN, Commissioner of Social Security

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 19, 2024
Decided January 3, 2025
Before
AMY J. ST. EVE, Circuit Judge
JOHN Z. LEE, Circuit Judge
JOSHUA P. KOLAR, Circuit Judge
No. 24-1587
VIRGIL L. KELLEY,
Plaintiff-Appellant,
v.
CAROLYN COLVIN, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District
Court for the Southern District of
Indiana, Indianapolis Division.
No. 1:23-cv-00285-MKK-RLY
M. Kendra Klump,
Magistrate Judge.
ORDER
Virgil Kelley suffers from anxiety, depression, and intermittent explosive
disorder (IED) and applied for Disability Insurance Benefits and Supplemental Security
Income. An administrative law judge (ALJ) denied his application after determining
that none of his impairments were severe. Kelley appeals, arguing that the ALJ
erroneously disregarded both his reports about his angry outbursts and the opinion
from a neuropsychologist. But because any error in the ALJ’s omission of the doctor’s
opinion was harmless, her assessment of Kelley’s subjective symptoms was not patently
wrong, and substantial evidence supports the decision, we affirm.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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Background
Kelley’s arguments relate only to his mental impairments, so we limit the
medical summary to these issues where possible. This appeal concerns Kelley’s second
application for benefits. He filed the first one pro se in August 2019, alleging disability
from various conditions including depression, anxiety, OCD, and IED. The application
was denied upon initial review, and Kelley did not request reconsideration.
Kelley applied for benefits again in December 2020 based on the same mental
health impairments as before—anxiety, depression, OCD, and IED. This time, he
alleged an onset date of March 1, 2020. He also complained of chronic back pain, trouble
sleeping, and memory loss.
Prior to filing his first application, Kelley saw Dr. Meghana Bhat for outpatient
psychiatric treatment. In November 2018, they discussed his depression, anxiety, and
IED. At the time, Kelley reported that he was “good” but that he would become angry
at times. He said that his way of dealing with his anger issues was by walking away (if
he was at work) or letting his family members know how he felt.
Furthermore, in October 2019, Kelley met with a neuropsychologist, Dr. Kenneth
McCoy, for a consultative exam in connection with his first application for benefits.
Kelley told Dr. McCoy that he experienced significant feelings of depression and
anxiety and that “he used to have trouble with anger but ha[d] learned how to control
[it].” Kelley also noted that he assisted with some household tasks and could take care
of daily basic needs like showering, dressing, and grooming. Dr. McCoy observed that
Kelley’s mood was “anxious and mildly depressed,” but his affect was “normal,” he
was “cooperative throughout the evaluation,” and his thought processes were “intact.”
He further noted that Kelley exhibited “a mild level of difficulty with inattention and
distractibility.”
Dr. McCoy also conducted a mental status examination. He wrote that Kelley
was cooperative, could work at a pace “[w]ithin normal limits” without supervision,
and could manage funds without impairment. In response to the question, “Can this
person attend to a simple, repetitive task continuously for a two-hour period?”
Dr. McCoy wrote: “Based on mental status examination, [Kelley’s] depression may
interfere with this task.” He did not elaborate.

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No. 24-1587 Page 3
Meanwhile, Kelley continued seeing Dr. Bhat. In November 2020, Dr. Bhat noted
that Kelley’s mood was “overwhelmed” but observed that Kelley’s thought processes
were coherent and organized, his insight and judgment were fair, and he was
cooperative. Dr. Bhat prescribed new medication for anxiety, and in January 2021,
Kelley reported that the medication was helping and his mood was “alright.” Dr. Bhat
found that Kelley’s cooperation level, judgment, and thought processes had not
changed since his last visit. Dr. Bhat arrived at the same conclusion after meeting with
Kelley in June, September, and November 2021. Of note, during their June and
September meetings, Kelley denied that he had any depression and reported looking
forward to his part-time job as a stagehand at concerts.
Kelley also met with a licensed clinical therapist, Sharon Troxell, in February and
March 2021 for talk therapy. During these sessions, Kelley reported that his medication
helped his depression and anger, but he still experienced daily feelings of frustration,
anger, and anxiety. He also had “difficulty controlling his anger” and would “blow up.”
Kelley eventually stopped seeing Troxell, and she noted that he was “good to go” on
medication only. (According to Kelley’s hearing testimony, he was “kicked out” of talk
therapy because he had reacted strongly when his therapist “disrespected” his father.)
The agency conducted its first level of review of Kelley’s second disability
application in March 2021. Dr. Donna Unversaw, a reviewing state-agency psychologist,
opined that Kelley’s mental impairments were nonsevere. In so doing, she evaluated his
impairments against the four broad areas of functioning specified in the federal
regulations: understanding, remembering, and applying information; interacting with
others; concentrating, persisting, or maintaining pace; and adapting or managing
oneself. See 20 C.F.R. § 404.1520a(c)(2); Subpt. P, App’x 1 § 12.00(E). Dr. Unversaw noted
that Kelley’s anxiety was benefiting from medication, his mood was “alright,” and he
continued to drive, shop, pay bills, and leave home independently. She found Kelley’s
impairments to be “mild.”
Kelley (with the assistance of counsel) requested reconsideration, and in August
2021, Dr. Ken Neville, another state-agency psychologist, reviewed the records. He
agreed with Dr. Unversaw’s conclusion that Kelley’s psychological symptoms were
nonsevere. Dr. Neville noted that Kelley alleged no new changes and that, at his last
appointment in the record, he had reported having a “pretty good” mood, denied
depression, and had mentioned that he was happy to be returning to work.

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Kelley then requested a hearing before the ALJ, where he, his counsel, and a
vocational expert all appeared. Kelley testified that he had a long history of behavioral
issues that caused fights at work (resulting in repeated job loss) and in public (such as
in a grocery store parking lot). He also experienced problems getting along with friends
and family and had trouble motivating himself to leave the house. He further stated
that he could not remember how to play a guitar part five minutes after learning it or
recall a television show right after it ended. He, however, had little trouble answering
the ALJ’s questions about his daily activities, medical care, and work history.
After the hearing, the ALJ issued a decision denying Kelley’s application for
benefits, noting that the period relevant to Kelley’s claim was March 1, 2020, when he
alleged that he became disabled, through the date of her decision, May 2, 2022. She
undertook the five-step sequential analysis for determining whether an individual is
disabled. See 20 C.F.R. § 404.1520(a). At step one, the ALJ found that Kelley had not
engaged in substantial gainful activity since the alleged onset of his disability. And in
the first part of step two, the ALJ determined that Kelley had the medically
determinable impairments of lumbar scoliosis, depression, anxiety, IED, and obesity.
In the second part of step two, however, the ALJ concluded that none of Kelley’s
impairments were severe. In arriving at this conclusion, the ALJ considered the four
broad areas for evaluating mental disorders set out in the disability regulations—
referred to as the “paragraph B” criteria—and accepted the opinions of the state-agency
psychologists that Kelley had no more than mild impairments in each of them. The ALJ
deemed these opinions “persuasive” based on the psychologists’ detailed summaries
and analyses of the evidence.
On the other hand, the ALJ found Kelley’s hearing testimony about the severity
of his symptoms less credible. The ALJ contrasted Kelley’s complaints about his
memory problems with his ability to answer detailed questions about his medical
treatment, past work, and daily tasks. She acknowledged that Kelley had been formally
diagnosed with depression, anxiety, and IED, but pointed out the findings from
Kelley’s own mental healthcare providers that his thought processes were coherent and
organized, he was cooperative, and he exhibited normal speech. The ALJ further
observed that Kelley’s statements regarding the efficacy of his anxiety prescription
medication indicated that his “symptoms were well-controlled with regular medication
and treatment.” (The ALJ also found that Kelley’s allegations regarding the severity of
the symptoms caused by his physical impairments, lumbar scoliosis and obesity, were
inconsistent with the objective medical evidence in the record.)

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The Appeals Council rejected Kelley’s request for review, rendering the ALJ’s
determination final. Kelley next sought review in the district court, arguing among
other things that the ALJ erroneously omitted any discussion of Dr. McCoy’s medical
opinion and Kelley’s self-reports about his anger, both of which he contended
supported findings of disability. The district court disagreed, concluding that
Dr. McCoy’s opinion was not so inconsistent with the ALJ’s report that her failure to
address it was erroneous, and that, regardless, any error was harmless. The district
court also concluded that the ALJ’s analysis of Kelley’s symptoms was reasoned and
that the decision was supported by substantial evidence.
Analysis
On appeal, Kelley maintains that the ALJ failed to address evidence that his
mental health impairments are severe. (There is no dispute on appeal that Kelley has
the medically determinable impairments of IED, depression, and anxiety.) He seeks a
remand ordering the ALJ to further explain her decision.1
We review the district court’s decision de novo and directly assess the ALJ’s
decision. Butler v. Kijakazi, 4 F.4th 498, 501 (7th Cir. 2021). In the process, we will reverse
an ALJ’s decision “only if it is the result of an error of law or it is not supported by
substantial evidence.” Crowell v. Kijakazi, 72 F.4th 810, 813 (7th Cir. 2023). At a
minimum, however, an ALJ must still adequately support her decision and “provide a
‘logical bridge’ between the evidence and [her] conclusions.” Butler, 4 F.4th at 501
(quoting O’Connor-Spinner v. Astrue, 627 F.3d 614, 618 (7th Cir. 2010)).
I. Dr. McCoy’s Opinion
Kelley first argues that the ALJ erred by not discussing Dr. McCoy’s opinion that
Kelley’s depression “may interfere” with his ability to manage a simple task
continuously for a two-hour period. Kelley contends that this opinion could support a
1 At the administrative hearing, counsel in the opening statement conceded—with
respect to all impairments, physical and mental—that the evidence does not allow for a
step-two finding in Kelley’s favor. And the agency record contains no opinions relevant
to a residual functional capacity (step four). So any remand would entail not only more
explanation from the ALJ but, if the ALJ found any impairment “severe,” further
development of the record regarding the next steps of the inquiry.

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finding that his depression was severe and the ALJ was required to address it. The
Commissioner responds that the ALJ was not required to discuss Dr. McCoy’s opinion
because Dr. McCoy examined Kelley before the period in which Kelley claimed
disability in his second application.
The Commissioner’s argument is incorrect. The regulations require the ALJ to
consider “all of the medical opinions … in [the] case record,” and to explain the
“supportability and consistency factors” for a medical source’s medical opinions.
See 20 C.F.R. § 404.1520c(b), (c). Certainly, in those instances when a prior medical
opinion is too stale to move the needle one way or the other, the ALJ is not required to
address it. See, e.g., Stepp v. Colvin, 795 F.3d 711, 719 (7th Cir. 2015) (observing that the
value of a doctor’s opinion was time-limited because it concerned a patient’s recovery
from surgery over a period of months); Crowell, 72 F.4th at 816 (opinion was mentioned,
but discounted, for reasons including its age). But when a prior medical opinion—even
one issued prior to the alleged onset of disability—is probative of contested issues, we
have required it to be considered. See Roddy v. Astrue, 705 F.3d 631, 634, 636 (7th Cir.
2013). Here, Dr. McCoy gave his opinion only five months before the alleged onset date,
and it pertained to a longstanding and ongoing condition, Kelley’s depression.
The Commissioner also argues that the ALJ was not required to address
Dr. McCoy’s opinion because it was largely consistent with the ALJ’s conclusion, and it
is error only if the ALJ ignores evidence “contrary to” the conclusion. This might be true
as a general matter, but not when the evidence is a medical opinion that is recent
enough to be probative. The plain meaning of the regulation requires an ALJ to discuss
the consistency and supportability of every medical opinion in the record. 20 C.F.R.
§ 404.1520c(b). Still, whether and to what degree Dr. McCoy’s opinion is consistent with
the other evidence in the record is pertinent to this appeal, for if “we are convinced that
the ALJ [would] reach the same result,” the ALJ’s failure to consider it would be
harmless. Butler, 4 F.4th at 504 (quotation omitted).
When read holistically, Dr. McCoy’s report indicates that Kelley’s impairments
were mild. For example, he observed that Kelley’s mood was “mildly depressed” and
that Kelley exhibited a “mild level of difficulty with inattention and distractibility.”
Dr. McCoy further wrote that Kelley’s affect was “normal,” he was cooperative on
exam, his thought processes were intact, and he could work at a pace within normal
limits without supervision. To be sure, as Kelley points out, Dr. McCoy did note that
Kelley’s depression “may interfere” with his ability to attend to a task for a two-hour
period, but such a tenuous conclusion cannot negate the numerous unqualified findings

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noted above, especially when Dr. McCoy provided neither elaboration nor grounds to
support it.
Furthermore, Dr. McCoy’s findings were consistent with the totality of the
record. Just like Dr. McCoy, the other medical professionals intimated that Kelley’s
impairments were mild and not severe. For example, Dr. Bhat, who treated Kelley for
his depression, anxiety, and IED for over two years, observed that Kelley coherently
processed and organized information, possessed fair insight and judgment, and
cooperated on the exam. Troxell, his licensed clinical therapist, concluded that Kelley
was fine with only medication after their two sessions. And both Dr. Unversaw and
Dr. Neville found that Kelley’s impairments were mild after reviewing the record and
Kelley’s own statements about his daily activities and summer employment. Indeed,
Kelley can point to no objective evidence in the record “aligning with [or] reinforcing”
the severity he believes Dr. McCoy’s opinion suggests. Karr v. Saul, 989 F.3d 508, 513
(7th Cir. 2021).
Kelley’s other arguments are similarly unconvincing. Citing Curvin v. Colvin, he
contends that the step-two determination of severity is “merely a threshold
requirement” and that the ALJ was required to find that Kelley had a severe
impairment if he showed “more than a minimal effect” on his ability to do basic work
activities. 778 F.3d 645, 648–49 (7th Cir. 2015) (quotations omitted). And he is correct to
the extent that we have referred to the step-two requirement as a “’de minimis screening
for groundless claims.’” O’Connor-Spinner v. Colvin, 832 F.3d 690, 697 (7th Cir. 2016)
(quoting Thomas v. Colvin, 826 F.3d 953, 960 (7th Cir. 2016)). But Kelley nevertheless has
the burden of proving that his impairments were more than minimal, see Castile v.
Astrue, 617 F.3d 923, 926–27 (7th Cir. 2010), and for the reasons explained, Dr. McCoy’s
single unsupported statement does not satisfy that burden.
Kelley also argues that the ALJ’s decision not to proceed to assessing his residual
functional capacity—which can make a step-two error harmless, depending on the
ALJ’s determination, see Curvin, 778 F.3d at 649–50—was a prejudicial error. But the
failure to apply a belt-and-suspenders approach does not cause reversible error if the
ALJ’s step-two decision finds substantial support in the record. Finally, Kelley argues
that because the AJL ignored Dr. McCoy’s opinion, we cannot be certain how the ALJ
would have weighed it against the opinions of the state-agency psychologists whose
opinions were rendered without examining Kelley and (he says) with little analysis.
But, as already discussed, Dr. McCoy’s opinion does not meaningfully differ from those

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of the state-agency reviewers and, to the extent it does (which is debatable), Dr. McCoy
provided no support for it.
II. The ALJ’s Subjective-Symptom Analysis.
Kelley next argues that, in the ALJ’s analysis of the intensity, persistence, and
limiting effects of his symptoms, she erroneously failed to discuss his testimony and
reports to his doctors about “blow[ing] up” and needing to walk away from situations.
Although the ALJ did not need to accept his statements, Kelley asserts, she had to
explain why she rejected them. See 20 C.F.R. § 404.1529(b), (c). And he submits that the
only explanation the ALJ gave for disbelieving the intensity of his symptoms—that he
appeared normal in exams—is illogical. The Commissioner responds that a holistic
reading of the ALJ’s decision shows that she did not find Kelley’s self-reports fully
credible and that she reasonably discounted his subjective assertions about his
impairments based on the record evidence.
We agree that the ALJ could have provided a more complete explanation of the
reasons she discounted Kelley’s subjective statements about the intensity, persistence,
and limiting effects of his symptoms. § 404.1529(c)(3), (4). But we will overturn the
ALJ’s evaluation of a claimant’s subjective symptoms only if it is “patently wrong,
which means that the decision lacks any explanation or support.” Hess v. O’Malley,
92 F.4th 671, 679 (7th Cir. 2024) (quoting Murphy v. Colvin, 759 F.3d 811, 816 (7th Cir.
2014)). And here the ALJ made clear that she credited the psychologists’ observations of
Kelley’s temperament over his own reports. See id; see also Shramek v. Apfel, 226 F.3d 809,
811 (7th Cir. 2000) (explaining that this court gives an ALJ’s opinion “a commonsensical
reading rather than nitpicking at it”). Indeed, when discussing these incidents with his
providers, Kelley did not provide any details to suggest his anger was so frequent or
uncontrollable that it would significantly interfere with basic work activities.
In any event, the ALJ’s credibility determination was supported by substantial
evidence. Substantial evidence is “more than a mere scintilla,” and means only “such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Biestek v. Berryhill, 587 U.S. 97, 103 (2019) (citation omitted); Butler, 4 F.4th
at 501. In making this determination, the ALJ adequately considered the factors laid out
in S.S.R. 16-3p for determining the intensity and persistence of Kelley’s symptoms. She
noted that Kelley had reported having an “overwhelmed mood” in one exam but that
doctors had otherwise consistently confirmed his abilities to process, speak, and
cooperate. She also explained that Kelley was able to answer all of her questions, and

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those of counsel, during the hearing. She observed that the agency psychologists, whose
findings she deemed detailed and supported, agreed with her conclusions. And she
made her determination after finding that the objective medical evidence also largely
contradicted Kelley’s statements about his physical limitations. In the end, the ALJ did
not believe that Kelley’s symptoms were as severe as he reported, and she adequately
supported that conclusion.
AFFIRMED

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