Webb v. Commissioner of Social Security

IN THE

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

ROCK ISLAND DIVISION

SHERI W.,

Plaintiff,

v. Case No. 4:21-cv-04032-JEH

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

Order

Now before the Court is the Plaintiff Sheri W.’s Motion for Summary

Judgment (Doc. 15), the Commissioner’s Motion for Summary Affirmance (Doc.

19), and the Plaintiff’s Reply (Doc. 20).1 For the reasons stated herein, the Court

DENIES the Plaintiff’s Motion for Summary Judgment and GRANTS the

Commissioner’s Motion for Summary Affirmance.2

I

Sheri W. filed an application for disability insurance benefits (DIB) on

November 15, 2016 and an application for supplemental security income (SSI) on

April 26, 2017, alleging disability for both beginning on July 29, 2016. Her DIB and

SSI claims were denied. Upon Sheri’s request, a hearing was held on November

14, 2018 before an administrative law judge. At that hearing, Sheri was

represented by an attorney, and Sheri and a vocational expert (VE) testified. An

unfavorable decision was issued thereafter. On appeal, the Appeals Council

1 The parties consented to the jurisdiction of a U.S. Magistrate Judge. (Docs. 12, 13).

2 References to the pages within the Administrative Record will be identified by AR [page number]. The Administrative Record

appears at (Docs. 6, 7, 8) on the docket.

remanded the matter for consideration of all material evidence, further

consideration of Sheri’s maximum work abilities with evaluation of the opinion

evidence from Sheri’s doctor, and further consideration of the medical necessity

for an assistive device.

A second hearing was held on August 12, 2020 before a different ALJ, the

Honorable David W. Thompson (ALJ). Sheri was represented by the same

attorney, she again testified, and a different VE testified. Following the second

hearing, Sheri’s claim was again denied, on September 23, 2020. Her request for

review by the Appeals Council was denied on December 29, 2020, making the

ALJ’s Decision the final decision of the Commissioner. Sheri timely filed the

instant civil action seeking review of the ALJ’s September 2020 Decision on

February 26, 2021.

II

Sheri argues the ALJ committed the following errors: 1) the ALJ’s

assessment of subjective complaints was patently wrong; and 2) the ALJ erred

when assessing Sheri’s residual functional capacity.

III

The Court’s function on review is not to try the case de novo or to supplant

the ALJ’s findings with the Court’s own assessment of the evidence. See Schmidt

v. Apfel, 201 F.3d 970, 972 (7th Cir. 2000); Pugh v. Bowen, 870 F.2d 1271 (7th Cir.

1989). Indeed, “[t]he 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).

Although great deference is afforded to the determination made by the ALJ, the

Court does not “merely rubber stamp the ALJ's decision.” Scott v. Barnhart, 297

F.3d 589, 593 (7th Cir. 2002). The Court’s function is to determine whether the

ALJ’s findings were supported by substantial evidence and whether the proper

legal standards were applied. Delgado v. Bowen, 782 F.2d 79, 82 (7th Cir. 1986).

Substantial evidence is defined as “such relevant evidence as a reasonable mind

might accept as adequate to support the conclusion.” Richardson v. Perales, 402 U.S.

389, 401 (1971); Henderson v. Apfel, 179 F.3d 507, 512 (7th Cir. 1999).

In order to qualify for disability insurance benefits, an individual must show

that his inability to work is medical in nature and that he is totally disabled.

Economic conditions, personal factors, financial considerations, and attitudes of

the employer are irrelevant in determining whether a plaintiff is eligible for

disability. See 20 C.F.R. § 404.1566; 20 C.F.R. § 416.966.3 The establishment of

disability under the Act is a two-step process.

First, the plaintiff must be suffering from a medically determinable physical

or mental impairment, or combination of impairments, which can be expected to

result in death, or which has lasted or can be expected to last for a continuous

period of not less than 12 months. 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. §

1382c(a)(3)(A). Second, there must be a factual determination that the impairment

renders the plaintiff unable to engage in any substantial gainful employment.

McNeil v. Califano, 614 F.2d 142, 143 (7th Cir. 1980). The factual determination is

made by using a five-step test. See 20 C.F.R. § 404.1520; 20 C.F.R. § 416.920. In the

following order, the ALJ must evaluate whether the claimant:

1) is performing substantial gainful activity;

2) suffers from an impairment that is severe and meets a

durational requirement, or suffers from a combination of

impairments that is severe and meets the durational

requirement;

3) suffers from an impairment which meets or equals any

impairment listed in the appendix and which meets the

duration requirement;

3 Compare 20 C.F.R. § 404.1501 et seq. (DIB) with 20 C.F.R. § 416.901 et seq. (SSI). Thus, the Court may at

times only cite to the DIB regulations.

4) is unable to perform her past relevant work which includes an

assessment of the claimant’s residual functional capacity; and

5) is unable to perform any other work existing in significant

numbers in the national economy.

Id. An affirmative answer at Steps Three or Five leads to a finding that the plaintiff

is disabled. Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 352 (7th Cir. 2005).

The plaintiff has the burdens of production and persuasion on Steps One

through Four. Id. However, once the plaintiff shows an inability to perform past

work, the burden shifts to the Commissioner to show ability to engage in some

other type of substantial gainful employment. Weatherbee v. Astrue, 649 F.3d 565,

569 (7th Cir. 2011).

In the instant case, Sheri claims error on the ALJ’s part at Step Four.

A

At Step One, the ALJ determined Sheri had not engaged in substantial

gainful activity since July 29, 2016, the alleged onset date. AR 16. At Step Two,

the ALJ determined Sheri had the following severe impairments: fractures of

lower limb; status post total left hip replacement; valvular heart disease; and atrial

fibrillation. AR 17. At Step Three, the ALJ determined Sheri did not have an

impairment or combination of impairments that met or medically equaled the

severity of one of the listed impairments. AR 18. At Step Four, the ALJ made the

following residual functional capacity (RFC) finding:

[T]he claimant, as of July 29, 2016, the alleged onset date of disability

through January 31, 2018, had the [RFC] to perform sedentary work

as defined in 20 CFR 404.1567(b) and 416.967(b) except she was

limited to occasional climbing of ramps, stairs and ladders; she was

limited to no climbing of ropes and scaffolds; she was limited to

occasional stooping, kneeling, crouching and crawling; and, she

needed to avoid concentrated exposure to extreme cold, extreme heat,

fumes, odors, dusts, gases, unprotected heights and unprotected

moving machinery.

AR 19. At Step Five, the ALJ found that prior to February 1, 2018, considering

Sheri’s age, education, work experience, and RFC, there were jobs that existed in

significant numbers in the national economy that Sheri could have performed. AR

27.

The ALJ made the following additional RFC finding:

[T]he claimant, as of February 1, 2018, through the date of this

decision, has had the [RFC] to perform light work as defined in 20

CFR 404.1567(b) and 416.967(b) except she is limited to occasional

climbing of ramps, stairs and ladders; she is limited to no climbing of

ropes and scaffolds; she is limited to occasional stooping, kneeling,

crouching and crawling; and, she needs to avoid concentrated

exposure to extreme cold, extreme heat, fumes, odors, dusts, gases,

unprotected heights and unprotected moving machinery.

AR 28. The ALJ determined that since February 1, 2018, Sheri had been capable of

performing past relevant work as a newspaper carrier, sales clerk, and fast food

services manager as the work did not require the performance of work-related

activities precluded by Sheri’s RFC. AR 29. The ALJ thus found that Sheri had not

been under a disability from July 29, 2016 through the date of the Decision.

B

Sheri first argues that the ALJ’s rationale for dismissing her subjective

complaints is based on perceived inconsistencies that do not exist. She identifies

four specific instances in which the ALJ allegedly illogically or erroneously

considered the evidence pertinent to his subjective symptom evaluation. The

Commissioner argues the ALJ properly evaluated Sheri’s subjective symptoms

where the ALJ made determinations consistent with his duties under the

regulations. SSR 16-3p provides that all the evidence, including objective medical

evidence, is to be considered in evaluating the intensity, persistence, and limiting

effects of an individual’s symptoms and also the factors set forth in 20 C.F.R. §

404.1529(c)(3) are to be considered including: the claimant’s daily activities; the

location, duration, frequency, and intensity of pain or other symptoms;

precipitating and aggravating factors; medications and their side effects; non-

medication treatments; any other measures used to relieve pain or other

symptoms; and any other factors concerning the claimant’s functional limitations

and restrictions due to pain and other symptoms. SSR 16-3p, at *7-8. The ALJ was,

of course, required to “sufficiently articulate his assessment of the evidence to

assure [the reviewing court] that the ALJ considered the important evidence . . .

and to enable [the reviewing court] to trace the path of the ALJ’s reasoning.”

Carlson v. Shalala, 999 F.2d 180, 181 (7th Cir. 1993).

1

Sheri argues that the ALJ erroneously stated that no objective evidence

confirmed Sheri was disabled where Sheri provided longitudinal objective

evidence to support her allegations of pain and dysfunction. She also contends

that the ALJ erred in finding inconsistencies where there were none when

assessing the response to a question about a pain scale. The Court finds no such

error in the ALJ’s consideration of the objective evidence, and while it does with

regard to the pain scale, the error was harmless.

Sheri lists several pages of the objective evidence she says fully supports her

allegations of pain and dysfunction, much of which the ALJ covered in his

Decision. For example, the ALJ considered that Sheri required surgical repair to

her left acetabulum with open reduction as well as femoral head dislocation after

a motor vehicle accident in July 2016 which further required time in a nursing

home/rehabilitation for three months. The ALJ considered Sheri’s recovery after

July 2016 as detailed in medical records: Sheri was doing well overall in October

2016, six weeks status post-surgery; she had been doing very well in a

rehabilitation facility, looked stable, and with well-controlled pain; her hip pain

had resolved; she was doing better every day and had been doing some cooking

and housekeeping as of December 2016; she went without treatment from March

2017 to August 2017 at which time Sheri’s hip flexion was limited by pain and her

gait was antalgic; and her September 2017 CT showed that her left hip had severe

posttraumatic degenerative joint disease with loss of the superior joint space and

marked surrounding heterotopic ossification. The ALJ considered that Sheri

ultimately underwent a left hip total arthroplasty in January 2018, and Sheri was

thereafter doing well, both subjectively and objectively, was not using an assistive

device to ambulate, and ambulated without a limp in March 2018. The ALJ

observed treatment notes stated Sheri was on chronic medical therapy for her

cardiac issues and was maintaining sinus rhythm in April 2017, treatment notes

stated Sheri did not have any new or current cardiac symptoms or complaints in

April 2018, and cardiology findings in February 2020 were normal.

The ALJ found Sheri’s statements about the intensity, persistence, and

limiting effects of her symptoms were:

inconsistent because they are inconsistent with the objective medical

evidence of record . . . . The record does not include findings to show

she has had, after treatment, the significantly limited range of motion,

muscle spasms, muscle atrophy, motor weakness, sensation loss, or

reflect abnormalities associated with intense and disabling pain. The

claimant has been noted to ambulate effectively recently, and the

record does not include radiographic imaging or other objective test

results showing continuing orthopedic or musculoskeletal

abnormality associated with the claimant’s allegedly disabling pain.

AR 23. The ALJ continued, finding that after hip replacement surgery Sheri did

not require more than conservative type care and did not report significantly

disabling medication side effects.

The Court can easily trace the path of the ALJ’s reasoning from the

aforementioned evidence to his conclusion that the objective medical evidence was

inconsistent with the alleged intensity, persistence, and limiting effects of Sheri’s

symptoms. What Sheri fails to recognize is that the ALJ did not entirely disregard

her allegations of pain and dysfunction or find those allegations entirely

uncorroborated by the objective evidence. Instead, the ALJ found the objective

medical evidence did not more fully corroborate the extent of intensity,

persistence, and limiting effects of which Sheri complained. He explained how he

did so by way of illustration. Throughout his discussion of the record medical

evidence, the ALJ contrasted Sheri’s need for treatment (i.e. surgical repair and

surgical replacement) with Sheri’s successful rehabilitation (i.e. from use of a

walker to use of a cane to no cane, resolved hip pain) and normal examination

findings (i.e. normal strength in lower extremities, no neurovascular deficits, intact

sensation). The ALJ thus cited to substantial evidence in support of that finding.

Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (noting that the phrase “substantial

evidence” used throughout administrative law presents a threshold for

evidentiary sufficiency that is “not high”). As for Sheri’s contention that the ALJ

misrepresented the record as to “conservative type care” and failed to inquire as

to why more aggressive treatment was not offered after her hip replacement

surgery, the Court is unconvinced.

At the first hearing, ALJ Kathleen Winters directly asked Sheri what

treatment she had for her knees and what had been recommended as treatment.

Sheri answered that her doctor did not want to “do anything unless they

absolutely were bothering me to the point where it was too painful until I go in in

January [2018] because he wanted to wait for me to be one year out, from past hip

surgery before he really wanted to try to look and see if there was anything he

could do to relieve my knees.” AR 118. At the second hearing, the ALJ directly

asked Sheri if anything had been done for her knees given that she testified that

she had been having ongoing knee issues. AR 145. Sheri answered nothing had

yet been done, she had been having “mild issues” with her knees, she was going

to get a hold of her doctors to update them and suggested COVID got in the way

of things. AR 145-46. From such colloquies, it appears the ALJ did explore the

reasons for why Sheri’s knee complaints persisted as of the second hearing in

August 2020 and the reasons for why she had not undergone more aggressive

treatment. Shauger v. Astrue, 675 F.3d 690, 696 (7th Cir. 2012) (stating that “an ALJ

must first explore the claimant's reasons for the lack of medical care before

drawing a negative inference”). Neither Sheri’s testimony at the first or second

hearings, in any event, definitively established that medical providers determined

more aggressive treatment was necessary such that the ALJ erred with regard to

his finding of “conservative type care.” Roddy v. Astrue, 705 F.3d 631, 638 (7th Cir.

2013) (stating that an ALJ is not required to address in writing every piece of

evidence or testimony presented but is required to provide an accurate and logical

bridge between the evidence and his conclusions).

As for Sheri’s argument that the ALJ erred in finding inconsistencies where

there were none when assessing her response to a question about the pain scale,

the Court agrees. The ALJ explained at the second hearing that his pain scale went

from one to 10, with one being no pain whatsoever and 10 being: “the most

excruciating pain imaginable;” “is pain so bad that all you can do is concentrate

on the pain itself[,] you can’t get to the cupboard in the kitchen to get medication;”

and “is pain so bad that somebody will have to take you to the emergency room

for treatment.” AR 157. Sheri testified her pain on better days was five to six and

on her worst pain days an eight to nine such that “It’s not that I have to go to the

hospital, but it’s enough where . . . I’m laying in bed making sure I have my

medication with me or having my Ibuprofen within reach.” AR 158. As for her,

as the ALJ put it, “very worst days, where [she would] hit a ten out of ten,” Sheri

answered those days happened “maybe seven” days per month. AR 159. In his

Decision, the ALJ accurately recited his definition of the pain scale which included

his three separate elaborations of a “10.” AR 23. He then detailed Sheri’s answers

as to her level of pain on better days and how many of those days there were and

her level of pain on bad days and how many of those days there were. The ALJ

then proceeded to detail that Sheri testified she had seven days per month when

her pain was the worst – at a 10/10. Id. The ALJ accordingly found inconsistency

between Sheri’s subjective statements (seven days per month of the worst pain)

and the objective medical record where there were no emergency room visits since

2019.

The problem for the ALJ is that his very own definition of 10/10 pain was a

moving target, given that it had three variations; in other words, the ALJ created

the potential for inconsistency in the first instance. Sheri answered those seven

days per month when her pain level was 10/10, were “where it’s absolutely I’m

just staying in bed, not doing anything.” AR 159. Her answer was so strikingly

similar to that definition of 10/10 - “is pain so bad that all you can do is concentrate

on the pain itself[,] you can’t get to the cupboard in the kitchen to get medication”

– that the ALJ was reaching when he found inconsistency. Nevertheless, the Court

finds the ALJ’s error harmless. See McKinzey v. Astrue, 641 F.3d 884, 892 (7th Cir.

2011) (explaining that administrative error may be harmless and thus a court

ought not remand a case to the ALJ where it is convinced that the ALJ would reach

the same result). This was just one finding of inconsistency between Sheri’s

subjective symptom allegations and the record evidence, the rest of which are

beyond reproach. As discussed above, the ALJ sufficiently illustrated and

supported his finding of inconsistency between the objective evidence of record

and Sheri’s statements of pain. The ALJ also relied upon other portions of record

evidence to reject the extent of limitation alleged by Sheri. Specifically, he pointed

to the inconsistency between Sheri’s description of her activities and her allegation

of complete and totally disability (unchallenged by Sheri). Also, as addressed

below, he properly found persuasive certain medical opinions over others. See 20

C.F.R. § 404.1529(c)(1) (“In evaluating the intensity and persistence of your

symptoms, we consider all of the available evidence from your medical sources

and nonmedical sources about how your symptoms affect you. We also consider

the medical opinions as explained in § 404.1520c”).4 The Court cannot say the

ALJ’s conclusions with regard to Sheri’s subjective symptoms was patently wrong.

See Wilder v. Kijakazi, 22 F.4th 644, 653 (7th Cir. 2022) (reiterating that the Seventh

Circuit court of appeals “will uphold an ALJ’s credibility determination unless

that determination is patently wrong’”); and Murphy v. Colvin, 759 F.3d 811, 815-16

(7th Cir. 2014) (explaining “patently wrong” means “the decision lacks any

explanation or support”).

2

Sheri also argues the ALJ failed to properly consider the medical opinions

and instead relied upon his own evaluation of the hearing testimony and the

testimony of the VE. In particular, Sheri contends that the ALJ contradicted his

own rationale for dismissing the opinions of the State Agency medical consultants,

and he erred in dismissing the opinions of Janice Levsen, FNP-C and Kristine

McIntee, ARNP on the basis that that they were opining on issues reserved to the

Commissioner.

As for Sheri’s argument of contradiction, the ALJ did no such thing. The

ALJ explained that State Agency findings concerning Sheri’s ability to perform

4 Neither party explicitly addressed the fact that different versions of certain regulations applied to claims

filed before March 27, 2017 (Sheri’s DIB claim) and to claims filed on or after March 27, 2017 (Sheri’s SSI

claim).

work activities in determinations needed in February 2017 and August 2017 “may

have been supported by the medical evidence at the time; as of January 31, 2018,

multiple medical documents were added and the state agency determinations did

not represent a longitudinal view of the claimant’s impairments.” AR 24. The ALJ

then detailed that since January 2018, testimony had been received by Sheri at two

hearings as well as testimony from two VEs and, ultimately, the RFC assessments

described in the Decision represented “a more accurate, longitudinal view of the

claimant’s medical history and are based on all evidence of record through the

date of this decision.” Id. In giving Michael Willey, M.D.’s February and August

2017 opinions that Sheri did not have any work restrictions more persuasive

weight, the ALJ observed they were consistent with the treatment notes from

February and August 2017: in February 2017, Sheri was doing well six-months

post-operative and had only minimal pain and only a slight limp; and in August

2017, Sheri had good strength in her lower extremities with no neurovascular

deficits even though she complained of pain and becoming more sedentary. The

ALJ further observed that treatment notes indicated Sheri’s condition improved

following her left total hip arthroplasty where the most recent treatment notes

indicated her muscle tone was good and her gait and station were intact. In giving

Denise Peck, ARNP’s March 2018 opinion that Sheri could return to all usual

activities more persuasive weight, the ALJ noted it was consistent with treatment

notes from March 2018 that indicated Sheri’s report of doing well and no use of an

assistive device to ambulate.

Fatal to Sheri’s argument are the explanations the State Agency doctors

provided. The first State Agency doctor very clearly stated as to Sheri’s physical

impairment that “[w]hile the injury was severe at the time of adjudication of this

claim, it is anticipated that the impairment will not last 12 months, and will,

therefore, be non-severe at the end of 12 months.” AR 182 (emphasis added). The

second State Agency doctor stated his “assessment has been modified to reflect

[the claimant’s] current condition” after stating that “[u]pon review of examination

finding determine [claimant’s] mental condition is non severe and [claimant]

physical condition would be non-severe at the end of twelve months.” AR 212

(emphasis added). Given that the first State Agency consultant merely anticipated

a certain result and the second provided an opinion as to Sheri’s then-current

condition, the ALJ logically concluded that their opinions did not present a

longitudinal view of Sheri’s impairments such that they were of limited probative

value or persuasion. There is no contradiction between the ALJ thus concluding

and the ALJ finding that other doctors’ opinions (Dr. Willey and Peck) on

particular dates were consistent with treatment notes from those particular dates

and with later treatment notes that similarly indicated Sheri’s post-operative

improvement such that the opinions supported the “notion that [Sheri] is not

totally disabled.” AR 24. Of course, the last State Agency opinion was rendered

in August 2017 and the later “more persuasive” opinion by an attending medical

source (Peck) was provided in March 2018, at which time the ALJ had the benefit

of treatment notes that extended beyond August 2017 against which he could

compare opinions of record.

Moreover, the ALJ properly considered the consistency of the medical

sources’ opinions. See 20 C.F.R. § 404.1520c(c)(2) (providing the factor of

consistency will be considered when considering medical opinions such that the

“more consistent a medical opinion(s) or prior administrative medical finding(s)

is with the evidence from other medical sources and nonmedical sources in the

claim, the more persuasive the medical opinion(s) or prior administrative medical

finding(s) will be”); see also 20 C.F.R. § 404.1527(c)(4) (“Generally, the more

consistent a medical opinion is with the record as a whole, the more weight we

will give to that medical opinion”). Also, 20 C.F.R. § 404.1545 clearly states that an

ALJ is to assess a claimant’s RFC “based on all the relevant evidence in [the

claimant’s] case record,” and 20 C.F.R. § 404.1546 clearly states that “the

administrative law judge . . . is responsible for assessing your residual functional

capacity.” 20 C.F.R. § 404.1545(a)(1) (emphasis added); 20 C.F.R. § 404.1546(c).

Sections 404.1545 and 404.1546 reveal the ALJ relied on proper reasons to reject the

State Agency doctors’ opinions. The ALJ’s statement as to testimony received by

two VEs after the State Agency determinations does not concern the Court as it

does Sheri. The statement was an errant one in light of the Decision as a whole

which does not indicate the ALJ actually relied on the VEs’ testimony to resolve

medical questions in this case.

As for Sheri’s contention that the ALJ erred in dismissing Levsen’s and

McIntee’s opinions because not every portion of their opinions was on an issue

reserved to the Commissioner, the ALJ did not commit reversible legal error.

Statements that a claimant is or is not disabled, able to work, or able to perform

regular or continuing work are statements on issues reserved to the Commissioner

that are “inherently neither valuable nor persuasive to the issue of whether [a

claimant] is disabled under Act.” 20 C.F.R. § 404.1520b(c)(3); see also 20 C.F.R. §

404.1527(d)(1) (“A statement by a medical source that you are “disabled” or

“unable to work” does not mean that we will determine that you are disabled”).

Here, treating medical source McIntee wrote in a December letter with the heading

“Temporary Status,” that Sheri was under her care for “the diagnosis of s/p

revision total hip arthroplasty and meets the definition of handicapped in the Iowa

Code, Chapter 321L.1,” and the handicap was temporary for a period of six

months. AR 3875. The ALJ afforded no probative or persuasive value to McIntee’s

opinion because the “issue of whether the claimant is handicapped or disabled is

the ultimate issue in this case and is reserved to the Commissioner of Social

Security Administration, delegated to the undersigned[.]” AR 24-25.

The ALJ’s conclusion was a reasonable one as it conformed with the

regulations. Sheri elaborates in her Motion upon the definition of “person with a

disability” as defined by Iowa Code. All that does is further convince the Court

the ALJ properly rejected McIntee’s opinion. As the Commissioner points out, 20

C.F.R. § 404.1504 provides in relevant part, “Because a decision by any other

governmental agency or a nongovernmental entity about whether you are

disabled, blind, employable, or entitled to any benefits is based on its rules, it is

not binding on us and is not our decision about whether you are disabled or blind

under our rules.”

Attending Nurse Practitioner Levsen opined in July 2017 that Sheri qualified

for an Illinois certificate of persons with disability parking placard, Levsen stated

Sheri could not walk without assistance of a wheelchair, walker, crutch, brace, or

other prosthetic device or without the assistance of another person, and Levsen

stated the disability was permanent. In September 2017, Levsen reported: Sheri

was unable to work full-time or part-time and could work zero hours per day;

Sheri may possibly be able to return to work when evaluated on November 22,

2017; and Sheri would require hip replacement but was unable to sit for long

periods of time and was therefore unable to participate in a classroom assignment,

reporting that was due to traumatic hip and pelvic fracture as well as deep vein

thrombosis and hip dislocation. At that time, Levsen, as the ALJ put it, “admitted”

that Sheri, with proper medical treatment, would possibly be able to return to

work. AR 25. In November 2017, prior to hip replacement, Levsen opined again

that Sheri qualified for a disabled parking placard, and that Sheri was severely

limited in the ability to walk due to an arthritic, neurological, or orthopedic

condition and that she could not walk 200 feet without stopping to rest because of

one of those conditions. The ALJ found Levsen’s opinions unpersuasive and of no

probative value after highlighting the following: Levsen provided no references

of record in support of her opinions; she did not cite to specific medical evidence

such as examination results, diagnostic tests, or laboratory results in support of

her opinions; and she addressed her opinions in the realm of Sheri not being able

to work. Id. The ALJ continued, “The issue of whether the claimant is able to work

is the ultimate issue in this case and is reserved to the Commissioner of Social

Security Administration, delegated to the undersigned.” Id.

The Court again finds the ALJ’s conclusion, this time as to Levsen, was a

reasonable one as it conformed with the regulations. Sheri argues the ALJ erred

in finding that a treating source cannot opine as to the number of hours a patient

can work. But a reasonable mind could accept that the statement that a claimant

“can work zero hours per day” is the same as saying the claimant is unable to work

or unable to perform regular or continuing work – issues reserved to the

Commissioner. Burmester v. Berryhill, 920 F.3d 507, 510 (7th Cir. 2019) (explaining

that where substantial evidence supports an ALJ’s disability determination, a

reviewing court must affirm the decision even if “reasonable minds could differ

concerning whether the claimant is disabled”). The ALJ also accurately and

sufficiently explained that Levsen did not provide references in the record in

support of her opinions. See 20 C.F.R. § 404.1520c(c)(1) (providing that the “more

relevant the objective medical evidence and supporting explanations presented by

a medical source are to support his or her medical opinion(s) . . . the more

persuasive the medical opinions . . . will be”); 20 C.F.R. § 404.1527(c)(3) (“The more

a medical source presents relevant evidence to support a medical opinion,

particularly medical signs and laboratory findings, the more weight we will give

that medical opinion”). Levsen merely listed diagnoses of traumatic hip fracture,

hip osteoarthritis, and deep vein thrombosis. Notably, elsewhere in the Decision

the ALJ considered that Sheri had no neurovascular deficits in March 2017, an

intact distal neurovascular exam in March 2018, and was neurovascularly intact in

June 2019.

3

Next, Sheri argues that the evidence showed her use of a cane was

unquestionably medically necessary for most of the adjudicated period. She says

the ALJ made a disallowed medical determination when he inexplicable found she

no longer needed a cane on the date of her total hip replacement surgery when her

doctor specifically stated she would need to use a walker or crutches for two to

three weeks after surgery and then a cane until her limp was gone. While she also

argues the ALJ failed to properly consider evidence that supports her allegations

of pain and misconstrues evidence, that argument is repetitive of the argument

Sheri made above which the Court has rejected.

With regard to Sheri’s use of a cane, the ALJ observed more recent treatment

notes (from August 2018 onward) did not mention Sheri’s use or need of an

assistive device. Nevertheless, the ALJ considered Sheri’s somewhat consistently

observed use of a cane and antalgic gait between December 2016 and October 2017.

The ALJ next detailed that after Sheri’s hip replacement surgery, she was

instructed to use a walker or crutches the first two weeks and progress to a cane

until the limp was gone, encouraged to put as much weight on her new hip as

much as possible, and instructed to continue exercises provided her by her

physical therapist. Specifically with regard to the period after Sheri’s hip surgery

in January 2018, Sheri was noted in May 2019 to have an antalgic gait while

recovering from a toe injury but was walking with a non-antalgic gait with no

apparent deficit in balance or coordination by June 2019. The ALJ observed

doctors consistently reported Sheri’s normal strength and normal gait from

October 2018 through March 2020, and, overall, the “medical evidence of record

shows that after surgery, the claimant needed the use of a cane during recovery,

and there was no mention of the need for a cane since January 2018.” AR 26. The

ALJ concluded, “Therefore, through January 2018, the claimant was capable of

performing sedentary type work and, thereafter, was able to walk, stand, and sit

for at least eight hours each per workday.” Id.

It is rather easy for the Court to trace the path of the ALJ’s reasoning from

evidence pre-January 2018 (Sheri was consistently noted with a cane or antalgic

gait) to his sedentary RFC finding and from evidence post-January 2018 (evidence

did not mention use or need for a cane) to his light RFC finding. The Court does

not see where the ALJ made a medical determination regarding the weeks after

Sheri’s hip replacement surgery. Instead, the ALJ explicitly acknowledged the

record evidence showed Sheri needed the cane during recovery. Additionally, the

Court finds the ALJ relied upon substantial evidence in support of his conclusions

as to Sheri’s medical need for a cane. See Biestek, 139 S. Ct. at 1154 (repeating that

substantial evidence is “more than a mere scintilla”). Sheri’s arguments as to the

ALJ’s consideration of her cane use amount to nitpicking. See Rice v. Barnhart, 384

F.3d 363, 369 (7th Cir. 2004) (stating that a court is to give an ALJ’s decision “a

commonsensical reading rather than nitpicking at it”).

C

Finally, Sheri includes an argument that the ALJ erred when assessing her

RFC. But the argument is little more than citations to authority, conclusory

sentences, and a statement that she would have qualified for benefits pursuant to

the Medical Vocational Guidelines had it not been for the ALJ finding “there was

a medical improvement that miraculously allowed Sheri to perform light work

within a few days from when she turned 55[.]” Plf’s MSJ (Doc. 15-1 at pgs. 21-22).

Of significance, in support of this, her second point of error, Sheri refers the Court

back to every argument she made in support of her first point of error.

Accordingly, the Court will not separately address this second point of error which

is also under-developed when considered without reference to Sheri’s preceding

arguments. See Crespo v. Colvin, 824 F.3d 667, 674 (7th Cir. 2016) (“perfunctory and

undeveloped arguments . . . are waived”). Remand is not warranted in this case.

IV

For the foregoing reasons, the Plaintiff’s Motion for Summary Judgment

(Doc. 15) is DENIED and the Defendant’s Motion for Summary Affirmance (Doc.

19) is GRANTED. The Clerk of Court is directed to enter judgment as follows: “IT

IS ORDERED AND ADJUDGED that the decision of the Defendant, Kilolo

Kijakazi, Acting Commissioner of Social Security, denying benefits to the Plaintiff,

Sheri W., is AFFIRMED.” This matter is now terminated.

It is so ordered.

Entered on September 23, 2022.

s/Jonathan E. Hawley

U.S. MAGISTRATE JUDGE