# Webb v. Commissioner of Social Security

> District Court, C.D. Illinois · September 23, 2022

URL: https://www.frixlaw.com/law-library/cases/10136902

## Case

- **Court:** District Court, C.D. Illinois
- **Decided:** September 23, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10136902

## How later opinions describe it (automated extraction)

- stating that “an ALJ must first explore the claimant's reasons for the lack of medical care before drawing a negative inference”
- noting that the phrase “substantial evidence” used throughout administrative law presents a threshold for evidentiary sufficiency that is “not high”
- 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

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10136902. Public record. Not legal advice.