Tuttle v. Saul

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

LINDA T.,1 )

) No. 19 CV 3950

Plaintiff, )

)

v. ) Magistrate Judge Young B. Kim

)

ANDREW M. SAUL, Commissioner of )

the Social Security Administration, )

) September 1, 2020

Defendant. )

MEMORANDUM OPINION and ORDER

Linda T. (“Linda”) seeks disability insurance benefits (“DIB”), claiming that

she suffers from a range of medical conditions that prevent her from engaging in

full-time work. Before the court is Linda’s motion for summary judgment. For the

following reasons, Linda’s motion is denied, and the Commissioner’s final decision is

affirmed:

Procedural History

Linda filed her DIB application in June 2016, alleging a disability onset date

of May 4, 2016. (Administrative Record (“A.R.” 230-31).) The Commissioner denied

her application initially and on request for reconsideration. (Id. at 94-95.) Linda

thereafter requested and received a hearing before an administrative law judge

(“ALJ”) in February 2018. (Id. at 144-57, 191-219.) In September 2018 the ALJ

issued a partially favorable decision, determining that Linda was disabled from

1 Pursuant to Internal Operating Procedure 22, the court uses only the first name

and last initial of Plaintiff in this opinion to protect her privacy to the extent

possible.

May 4, 2016, through June 30, 2017, but that her disability ended on July 1, 2017,

when she became able to perform substantially gainful activity. (Id. at 112-25.)

The Appeals Council denied review of the ALJ’s decision, (id. at 1-7), rendering the

ALJ’s decision for the Commissioner final, see Jozefyk v. Berryhill, 923 F.3d 492,

496 (7th Cir. 2019). Linda then filed this lawsuit seeking judicial review, and the

parties consented to this court’s jurisdiction. See 28 U.S.C. § 636(c); (R. 6).

Facts

Linda worked full time at a cancer treatment center for nearly 15 years

leading up to May 4, 2016, when she was laid off because the cancer center

eliminated her position. (A.R. 34-35, 38, 117.) She asserts that she became unable

to work that same day because of her on-going medical problems and complications

following her hernia repair surgery. (Id. at 117.)

A. Medical Evidence

Linda submitted over 8,000 pages of medical records in support of her claim,

but only a sliver of them is relevant to the current appeal. The medical records

show that around the time of Linda’s alleged disability onset date her primary issue

was abdominal pain that caused nausea and vomiting. (A.R. 535.) She sought

emergency treatment for these symptoms in March 2016 and was diagnosed with a

large anterior abdominal wall hernia and small bowel obstruction. (Id. at 565-68.)

In May 2016 Linda underwent a planned hernia repair surgery with hernia

specialist Dr. Nicholas Armstrong. (Id. at 626-31.) Dr. Armstrong noted that

Linda’s medical history was significant for type-2 diabetes, chronic back pain, and

obesity. (Id. at 607.) On the day of her surgery, Linda weighed 357 pounds, for a

body mass index (“BMI”) of 57.7. (Id. at 614.)

About two months after surgery, Linda was hospitalized for abnormal

drainage at the site of her surgical wound. (Id. at 842, 959-63.) She underwent two

debridement surgeries with Dr. Armstrong in August 2016 to clean the infected

wound. (Id. at 3850.) A follow-up CT scan of Linda’s abdomen showed a new large

abdominal wall defect but also the absence of any bowel obstruction. (Id. at 924.)

In September 2016 Dr. Armstrong completed a Medical Assessment-Short Form in

support of Linda’s disability claim. (Id. at 8953-54.) Dr. Armstrong diagnosed

Linda with a non-healing abdominal wound and identified symptoms of muscle

weakness, infections, fevers, and abdominal complaints. (Id. at 8953.)

Dr. Armstrong indicated that Linda’s wound interfered with her ability to maintain

attention and concentration and would cause her to be off-task more than 30% of

the workday, that she would need more than 10 unscheduled breaks per day, and

that she would miss more than four days of work per month. (Id. at 8953-54.) He

also indicated that Linda’s condition would affect her for at least 12 months. (Id. at

8954.)

After she was released from the hospital, Linda was referred to a wound care

clinic for continued treatment. She started negative pressure wound therapy and

visited the clinic three times a week for dressing changes through April 17, 2017.

(Id. at 3850, 3871-72, 3896, 3898, 4389.) Starting April 17, 2017, negative pressure

wound therapy was discontinued but she continued to visit the clinic three times a

week for dressing changes until June 29, 2017, when the wound had fully healed.

(Id. at 3896, 3915.) There are no records showing a recurrence of medical problems

related to the wound after that date.

In June 2016 Dr. Thomas Sircher, a chiropractor, drafted a letter for Linda

opining that she has a “definite physical impairment.” (Id. at 448-49.) Dr. Sircher

wrote in the letter that Linda presented in 2004 with complaints of lower back pain

that radiated down her right thigh and calf and caused difficulty standing and

sitting. (Id. at 448.) He described these issues as recurrent and chronic and stated

that they were present when he examined her in March 2016. (Id.) In addition to

summarizing the results of his own examination, Dr. Sircher summarized the

findings of a CT scan of Linda’s lumbar spine from October 2011. (Id.) He

diagnosed Linda with L4-L5 discopathy, lumbar spinal stenosis, lumbar

osteoarthritis, and sciatic radiculopathy, and opined that Linda cannot sit for over

an hour or stand for a half-hour, has difficulty walking over 30 feet, and cannot lift

over 20 pounds or bend repeatedly. (Id. at 448-49.)

In August 2016 Linda underwent a physical examination with consulting

physician Dr. Julia Kogan. (Id. at 802-09.) Linda told Dr. Kogan that she has lower

back pain and cannot stand for more than 10 minutes or walk more than two blocks.

(Id. at 802.) Linda said that she has had these issues for 10 years and manages

them by seeing a chiropractor regularly and taking Aleve. (Id.) Dr. Kogan reported

that Linda had a waddling gait but exhibited no difficulty standing, bending to 60

degrees, or sitting, and had moderate difficulty lifting and carrying. (Id. at 809.)

She also reported that Linda’s fine manipulation and handling of small objects was

intact. (Id.) Dr. Kogan opined that Linda’s complaints of back pain were secondary

to her obesity, and that her obesity caused mild to moderate limitations in her

ambulation and activity. (Id.) Dr. Kogan recorded Linda’s weight as 311 pounds.

(Id. at 803.)

B. Linda’s Hearing Testimony

Linda testified at the hearing that she stopped working in May 2016 because

her job as a cancer registry assistant, which she held for seven years, was

eliminated. (A.R. 34-35.) She said that she started having issues from her sciatica,

bulging disk, and back pain years before then—maybe as far back as 2000—but was

able to work despite those issues. (Id. at 43.) She said that when she stopped

working in June 2016 her condition was “the same as it is now.” (Id. at 45, 53.)

Linda testified that her thumb and first and second fingers sometimes fall asleep,

and her sciatica causes her feet to go numb. (Id.)

Linda testified that she treats her back issues by seeing a chiropractor twice

a week and taking over the counter medication. (Id. at 43-45.) She said that she

was prescribed an anti-inflammatory medication in early 2016 but that she never

refilled it. (Id. at 44.) She also testified that she has trouble using the stairs, can

walk about half a block before her hip pain makes it difficult to continue, can stand

for about 10 minutes before she needs to sit down, and can sit for around an hour.

(Id. at 33, 51-52.) She said that she does not use a walker or a cane. (Id. at 52.)

She testified that she has trouble bending, uses a grabber, and cannot get on her

knees or crawl. (Id. at 60.) She also said she can only lift 10 pounds. (Id. at 53.)

Regarding her abdominal wound, Linda explained that she had her hernia

repair surgery scheduled when she was laid off in May 2016. (Id. at 55.) She

testified that after the surgery her surgical wound did not heal, requiring her to

drive 40-minutes round trip to a wound clinic three times a week for hour-long

treatments. (Id. at 46-47, 55.) She also testified that during that time she could not

lift anything, and her diabetes was “up and down.” (Id. at 46, 48.) Linda said that

since her treatment ended in June 2017 everything has been “okay” and her

diabetes is “just now getting under control.” (Id. at 46-47, 56, 59-60.) Linda

testified that she weighs 340 pounds. (Id. at 34.)

In describing her work as a cancer registry assistant, Linda testified that she

maintained information on cancer patients in an electronic registry. (Id. at 35, 41.)

She testified that she worked on a computer, but sometimes used the telephone to

contact patients. (Id. at 36.) She used the internet to locate people and sent out a

bulk mailing of 1,500 to 2,000 letters once a month. (Id. at 35, 41-42.) She also

ordered office supplies once a week, lifted boxes of copy paper weighing at least 10

pounds, and sat between five to six hours a day. (Id. at 37, 40.)

C. Vocational Expert’s Testimony

A vocational expert (“VE”) also testified at the hearing. In describing Linda’s

past work as a cancer registry assistant, the VE testified that the closest job in the

Dictionary of Occupational Titles (“DOT”) is data entry clerk but that it had aspects

of two other jobs in the DOT—skip tracer because she dealt with the public and

mailer because she sent out a monthly bulk mailing. (A.R. 62-64.) Both the data

entry clerk and skip tracer jobs are designated as sedentary work under the DOT,

while the mailer job is designated as light work. (Id. 63-64.) The VE testified that

Linda’s job as a cancer registry assistant was performed at either the sedentary or

light level, depending on whether the ALJ accepted Linda’s testimony that she

performed it at light level. (Id. at 64.)

The ALJ then posed a series of hypotheticals to the VE regarding whether

someone with a specific hypothetical residual functional capacity (“RFC”) could

perform Linda’s past work. In response to a hypothetical question reflecting Linda’s

age, education, past work, and RFC for sedentary work, the VE testified that such a

person could perform the cancer registry position as she performed it if she

performed it at the sedentary level. (Id. at 65-66.) The VE also testified that Linda

acquired skills from the data entry clerk position that would directly transfer to

other sedentary jobs such as a receptionist, which numbered approximately 400,000

jobs in the national economy. (Id. at 67-68.)

D. The ALJ’s Decision

The ALJ approved Linda’s application for DIB for the period from May 4,

2016, through June 30, 2017, but denied her application as of July 1, 2017, through

the date of her decision. (A.R. 112-25.) The ALJ used the sequential eight-step

evaluation process to determine whether Linda remained eligible for DIB after June

30, 2017. See 20 C.F.R. § 404.1594. The ALJ determined that Linda satisfied step

one because she had not engaged in substantial gainful activity at any time relevant

to the decision. (A.R. 115.) At step two the ALJ determined that Linda had severe

impairments of obesity, type-2 diabetes, degenerative disc disease with sciatica,

right hip degenerative joint disease, hypertension, and status-post incarcerated

ventral hernia repair, with complications that were the same as those present from

May 4, 2016, through June 30, 2017. (Id. at 116.) The ALJ then found that Linda

did not have any impairment or combination of impairments that met or medically

equaled an impairment listed under 20 C.F.R. § 404.1594(f)(2). (Id. at 119.) At step

three the ALJ determined that medical improvement had occurred as of July 1,

2017. (Id. at 120.) Thus, the ALJ found Linda’s disability ended on that date. (Id.)

At step four the ALJ found this improvement was related to Linda’s ability to

work. (Id.) Accordingly, the ALJ proceeded to step six and concluded that this step

was met because she had determined Linda’s impairments were severe at all

relevant times. (Id.) At step seven the ALJ found that from July 1, 2017, through

the date of her decision, Linda retained the RFC for sedentary work with the

following additional limitations: she can occasionally climb ramps and stairs but

never ladders, ropes, or scaffolds; she can occasionally stoop and crouch but never

kneel or crawl; and she must avoid all exposure to the use of dangerous moving

machinery and unprotected heights. (Id. at 120-22.) The ALJ explained that

because Linda was no longer likely to be absent more than two days per month for

wound treatment, she omitted the provision for absenteeism that precluded her

from working on a regular and sustained basis from May 4, 2016, through June 30,

2017. (Id. at 117, 120-122.) The ALJ then concluded that Linda’s RFC permitted

her to perform her past work as a cancer registry assistant as she actually

performed it. (Id. at 120-22.) Alternatively, the ALJ concluded at step eight that

Linda’s RFC allowed her to perform a significant number of jobs in the national

economy from July 1, 2017, through the date of the decision. (Id. at 123-24.)

Analysis

Linda argues that the ALJ’s decision should be reversed because the ALJ

erred when evaluating the opinions of Drs. Armstrong and Sircher, crafting the

RFC, assessing her subjective symptoms, and relying on the VE’s testimony. The

court reviews the ALJ’s decision only to ensure that it is based on the correct legal

criteria and supported by substantial evidence. Prater v. Saul, 947 F.3d 479, 481

(7th Cir. 2020). Substantial evidence is “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Id. (quoting Biestek v.

Berryhill, 139 S. Ct. 1148, 1154 (2019) (quotation marks and citation omitted)). The

ALJ is required to “build an accurate and logical bridge between the evidence and

the result to afford the claimant meaningful judicial review of the administrative

findings.” Beardsley v. Colvin, 758 F.3d 834, 837 (7th Cir. 2014). But this court is

“not free to replace the ALJ’s estimate of the medical evidence” with its own, see

Berger v. Astrue, 516 F.3d 539, 544 (7th Cir. 2008), and must uphold the decision

even where “reasonable minds can differ over whether [the claimant] is disabled,”

see Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008).

A. Treating Source Opinions

Linda claims that the ALJ improperly evaluated the opinions of her treating

surgeon, Dr. Armstrong, and treating chiropractor, Dr. Sircher.2 (R. 8, Pl.’s Mem. at

8-10.) As to Dr. Armstrong, the ALJ afforded no weight to his September 2016

Medical Assessment-Short Form, in which he indicated that Linda’s abdominal

wound was severe enough to interfere with her ability to maintain attention and

concentration and would cause her to be off-task more than 30% of the workday, to

need more than 10 unscheduled breaks, and to miss more than four days of work

per month. (A.R. 8953-54.) An ALJ may not simply disregard a treating physician’s

opinion but must decide how much weight it should be accorded. See Moss v.

Astrue, 555 F.3d 556, 561 (7th Cir. 2009). At the same time, an ALJ “can give less

weight to a treating source’s opinion if it is inconsistent with the record,” Rainey v.

Berryhill, 731 Fed. Appx. 519, 523 (7th Cir. 2018) (citation omitted), or if she

“articulates ‘good reasons’ for doing so,” Gibbons v. Saul, 801 Fed. Appx. 411, 415

(7th Cir. 2020).

Here the ALJ provided good reasons for assigning Dr. Armstrong’s opinion no

weight. Namely, she pointed out that the evidence shows that Linda’s wound had

fully healed by the end of June 2017, with no recurrence. (A.R. 122.) The ALJ

explained that when Dr. Armstrong authored his opinion in September 2016, he

2 In her brief, Linda claims in a single sentence that the ALJ failed to consider the

checklist of factors under 20 C.F.R. § 404.1527(c) and played doctor when

evaluating Drs. Armstrong’s and Sircher’s opinions, (R. 9, Pl.’s Mem. at 9), but she

did not develop these arguments and therefore they are waived, see Truelove v.

Berryhill, 753 Fed. Appx. 393, 397-98 (7th Cir. 2018) (single-sentence arguments

are deemed waived).

gave no indication that Linda’s wound would never heal. (Id.) The medical

evidence reveals that Linda’s wound improved with negative pressure wound

therapy and tri-weekly dressing changes. (Id. at 118 (citing id. at 3898, 3902-03).)

As the ALJ correctly observed, by June 29, 2017, Linda’s wound had fully healed,

and she no longer required wound care. (Id.; see also id. at 3915.)

Linda argues that the ALJ mischaracterized Dr. Armstrong as having opined

that her wound was temporary when all he did was circle a form response

indicating that it satisfied the durational requirement. (R. 8, Pl.’s Mem. at 9.) She

also argues that the ALJ failed to discuss the entirety of the doctor’s opinion,

leaving out the portions about the symptoms and limitations resulting from her

wound. (Id.) The court disagrees with both of these arguments. There is nothing

false or misleading about the ALJ’s statement that Dr. Armstrong gave “no

indication” that Linda’s wound was permanent. Moreover, Linda fails to cite to any

evidence to rebut the ALJ’s conclusion that her wound had fully healed by June

2017 or to show that she continues to experience the symptoms underlying

Dr. Armstrong’s opinion, such as muscle weakness, infections, fevers, and

abdominal complaints. Indeed, Linda testified that she has no residual issues from

the wound. (See A.R. 46.) Having found that the evidence “clearly indicates” that

Linda’s wound had fully healed by June 2017, the ALJ committed no error in

discounting the limitations Dr. Armstrong ascribed to Linda in September 2016.

Linda further asserts that the ALJ “presented a skewed version of

Dr. Sircher’s opinion.” (R. 8, Pl.’s Mem. at 9.) In June 2016 Dr. Sircher, a

chiropractor, opined in a letter that Linda’s back problems prevent her from sitting

for over an hour or standing for a half-hour, make it difficult for her to walk over 30

feet, and preclude her from lifting over 20 pounds. (A.R. 448-49.) The ALJ assigned

“some weight” to Dr. Sircher’s assessment, explaining that overall, it was “vague

and not work preclusive.” (Id. at 122.) The ALJ noted that Dr. Sircher relied in

part on the CT scan of Linda’s lumbar spine from October 2011, pointing out that at

the time of this scan Linda was working as a cancer registry assistant and that she

continued in that position until she was laid off in May 2016. (Id.) Thus, the ALJ

concluded that Dr. Sircher’s functional limitations did not prevent Linda from

performing her past work as a cancer registry assistant as she actually performed

it. (Id.)

As an initial matter, the court rejects Linda’s assertion that Dr. Sircher’s

report is entitled to great deference as a treating physician’s opinion.3 (R. 8, Pl.’s

Mem. at 8.) According to the applicable regulations, a chiropractor is not an

“acceptable medical source,” cannot offer “medical opinions,” see 20 C.F.R.

§ 404.1513(a); SSR 06-3p, 2006 WL 2329939, at *2 (Aug. 9, 2006), and is not

considered a “treating physician,” see Pierce v. Colvin, 739 F.3d 1046, 1051 (7th Cir.

2014) (distinguishing chiropractors from “treating physicians”). Rather, a

chiropractor is listed as “other source” who can provide evidence to show the

3 The Social Security Administration adopted new rules for agency review of

disability claims involving the treating physician rule. See 82 Fed. Reg. 58844-01,

2017 WL 168819, at *5844 (Jan. 18, 2017). The new rules apply only to disability

applications filed on or after March 27, 2017. Id. Therefore, they are not applicable

in this case.

severity of a claimant’s impairment and how it affects her ability to work. 20 C.F.R.

§ 404.1513(d); SSR 06-3p, 2006 WL 2329939, at *2. Opinions from other sources are

not subject to the treating physician rule and may be discounted for any number of

reasons. See Fiori v. Colvin, No. 12 CV 50148, 2014 WL 4639468, at *11 (N.D. Ill.

Sept. 16, 2004) (noting ALJ has more discretion in determining the weight to give to

“other medical evidence”).

As for Linda’s argument that the ALJ offered a skewed version of

Dr. Sircher’s opinion,4 the court disagrees. In his report Dr. Sircher described

Linda’s “low lumbar pain” as “recurrent and chronic” and as causing her difficulty

with standing and sitting. (A.R. 448.) He also listed some recent examination

findings, in addition to the 2011 CT scan, as support for his diagnoses. (Id. at 448-

49.) But overall, Dr. Sircher’s assessment is neither “detailed” nor “dire” as Linda

claims. (R. 8, Pl.’s Mem. at 10.) And while Linda is correct that the ALJ did not

expressly state that Dr. Sircher had treated her since 2004, the ALJ did discuss

elsewhere in her opinion some of Dr. Sircher’s treatment notes that date back to

2004. (A.R. 120 (citing id. at 5270-5386).) Notably, Linda does not direct the court

to any specific notes of Dr. Sircher’s that the ALJ ignored. Thus, Linda has not

4 Linda points out in her brief that the ALJ referred to the chiropractor as “Mr.

Sircher” rather than “Dr. Sircher,” and asserts that in doing so the ALJ

“undermin[ed] his credentials.” (R. 8, Pl.’s Mem. at 9.) The court agrees with the

government that the ALJ accurately acknowledged that Dr. Sircher is a

chiropractor, (R. 14, Govt.’s Mem. at 4 n.2), and therefore her use of the prefix “Mr.”

instead of “Dr.” when discussing his opinion does not undermine the ALJ’s

substantive analysis.

shown any error in the ALJ’s evaluation of either Dr. Armstrong’s or Dr. Sircher’s

opinions.

B. The RFC Assessment

Linda also claims that the ALJ committed reversible errors when crafting the

RFC. Linda argues that the ALJ erroneously found that she experienced medical

improvement as of July 1, 2017. (R. 8, Pl.’s Mem. at 11.) The regulations define

medical improvement as “any decrease in the medical severity of your

impairment(s) which was presented at the time of the most recent favorable medical

decision that you were disabled or continued to be disabled.” 20 C.F.R.

§ 404.1594(b)(1). A finding of decreased medical severity must be based on “changes

in symptoms, signs or test results associated with [the claimant’s] impairment(s).”

Id. Here Linda claims that the ALJ based her finding solely on the fact that she no

longer had to go to the wound clinic three times a week for treatment rather than

changes in her symptoms, signs, or test results. (Id. (citing 20 C.F.R.

§ 404.1594(b)(1)).) The government responds that the ALJ reasonably recognized

that Linda’s wound had fully healed by the end of June 2017, so she no longer

required wound care. (R. 14, Govt.’s Mem. at 7.)

The ALJ found Linda disabled from May 4, 2016, through June 30, 2017, and

explained that although she was capable of performing sedentary work with certain

exertional limitations, she likely would have been absent from work more than two

times per month to treat significant complications following her hernia repair

surgery, which took place on May 21, 2016. (A.R. 118.) More specifically, those

complications consisted of treating the surgical wound, which required irrigation,

debridement, and infected suture removal procedures. (Id.) Later, Linda had to go

to the wound clinic three times a week for negative pressure wound therapy and

dressing changes. (Id.) The ALJ concluded that Linda’s absences for this treatment

resulted in “a categorically disabling limitation.” (Id.)

However, for the period beginning on July 1, 2017, the ALJ determined that

Linda was no longer disabled because she remained capable of the same sedentary

RFC and would no longer miss work for wound care. This finding is consistent with

medical records the ALJ cited, showing that Linda’s wound had healed, and she was

to follow up only on an as-needed basis. (Id. at 118 (citing id. at 3915 (June 29,

2017 follow-up appointment)).) And as already discussed, Linda testified that she

has no residual issues from the surgical wound. (Id. at 46.) This evidence supports

the ALJ’s conclusion that after June 29, 2017, Linda’s wound healed, and she would

no longer be absent from work for wound treatments.

Linda asserts that the RFC is insufficient because “there may be less need for

wound care, but there is no evidence that any limitations arising out of [her]

impairments surgeries have abated.” (R. 8, Pl.’s Mem. at 11.) To the contrary, the

ALJ cited medical records showing that there was no need for wound treatment

after June 29, 2017, and Linda does not point to records that undermine this

conclusion. Likewise, Linda fails to identify any disabling limitations resulting

from her surgeries that persisted after that date. Therefore, the court finds no

merit to Linda’s assertion that the ALJ’s finding of medical improvement is

erroneous.

Linda next contends that irrespective of the provision for absenteeism, the

RFC is “substantively inadequate” because it fails to account for all of her

limitations. (Id.) She makes passing reference to deficiencies that she “may have”

in concentration, persistence, or pace, and limitations arising out of the combination

of her impairments, (id.), but she fails to identify any specific deficiencies or

limitations that she believes the ALJ did not properly consider in crafting the RFC.

Courts are not required to sift through the record—especially one that includes

8,000 pages—to find evidentiary support for blunderbuss claims. See, e.g., Spitz v.

Proven Winners N. Am., LLC, 759 F.3d 724, 731 (7th Cir. 2014) (“[A] brief must

make all arguments accessible to the judges, rather than asking them to play

archaeologist with the record.”); Gross v. Town of Cicero, Ill., 619 F.3d 697, 704 (7th

Cir. 2010) (explaining that it is not the court’s “responsibility to research and

construct the parties’ arguments”). Because Linda fails to develop her argument on

this point in her opening brief or in her reply, even after the government exposed it

as perfunctory, (see R. 14, Govt.’s Mem. at 7-8), the court deems it waived, see

Crespo v. Colvin, 824 F.3d 667, 674 (7th Cir. 2016) (“[P]erfunctory and undeveloped

arguments, and arguments that are unsupported by pertinent authority, are

waived.”) (quoting United States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991)).

Linda also argues that the ALJ failed to properly account for her obesity.

(R. 8, Pl.’s Mem. at 11-13.) In support of her argument, she cites Browning v.

Colvin, 766 F.3d 702, 707 (7th Cir. 2004), for the proposition that it is a reversible

error for an ALJ to fail to “consider the bearing of obesity, even when not itself

disabling, on a claimant’s ability to work.” An ALJ is required to consider the

impact of a claimant’s obesity on the RFC and to bear in mind the potential

combined impact of obesity and other impairments.5 See SSR 02-1p, 2002 WL

34686281, at *1 (Sept. 12, 2002). This is because “[t]he combined effects of obesity

with other impairments may be greater than might be expected without obesity.”

Id. at *6.

Here the ALJ adequately considered Linda’s obesity when evaluating her

work-related impairments. The ALJ first recognized Linda’s obesity as a severe

impairment that “significantly limit[s her] ability to perform basic work activities.”

(A.R. 115-16, 119.) The ALJ then considered Linda’s obesity in relation to the body

systems listings pursuant to SSR 02-1p at step three. (Id. at 119.) In her RFC

assessment, the ALJ noted that Linda “has morbid obesity, with a Body Mass Index

around 50 to 53 kg/m², reasonably causing some postural restrictions.” (Id. at 118

(internal citation omitted).) The ALJ even found that additional environmental

restrictions were merited because of Linda’s “other impairments, including sciatica,

hip arthritis[,] and obesity.” (Id. at 118; see also id. at 121.) In so finding, the ALJ

discussed the findings of doctors who examined Linda, such as consulting physician

Dr. Kogan, who found that Linda’s complaints of back pain were secondary to her

5 On May 20, 2019, the Social Security Administration rescinded SSR 02-1p and

replaced it with SSR 19-2p. See SSR 19-2p, 2019 WL 2374244, at *1 (May 20,

2019). However, SSR 02-1p was the applicable rule at the time the ALJ issued her

decision.

obesity. (Id. at 118 (citing id. at 802-811); see also id. at 121.) The ALJ also

discussed Linda’s testimony that she cannot crawl or kneel, has trouble bending,

and uses a grabber to pick up items from the floor. (Id. at 121 (citing id. at 60).)

The ALJ then limited Linda’s RFC to sedentary work with additional postural and

environmental restrictions, including limitations on stooping, crouching, kneeling,

crawling, and climbing and a prohibition on exposure to dangerous machinery and

unprotected heights, to accommodate the effects of Linda’s physical impairments,

including obesity. (Id. at 122.) Significantly, the ALJ assigned Linda an RFC that

is more restrictive than that assigned by the state agency physicians, and the ALJ

explained that she assigned a more restrictive RFC based in part on Linda’s obesity.

(Id. at 121.)

Given this record, this is not a situation like the one in Browning where the

ALJ merely “acknowledged that the claimant’s obesity was a factor in her leg pain

but did not discuss its bearing on her ability to do sedentary work.” 766 F.3d at

702. The ALJ in this case explicitly considered Linda’s obesity in combination with

her other impairments and pointed to substantial evidence supporting her

conclusion that Linda retains the RFC for a range of sedentary work despite her

obesity. Further, in Browning the Seventh Circuit emphasized the difficulties that

a morbidly obese person would have with prolonged sitting, which is a fact that the

ALJ in that case neglected to consider in assigning the claimant an RFC for

sedentary work. Id. In this case, Linda does not challenge the ALJ’s decision with

respect to her sitting ability.

Linda instead claims that the ALJ’s RFC assessment fails to accommodate

non-exertional limitations stemming from her obesity. (R. 8, Pl.’s Mem. at 13.)

Linda bases her claim on: (1) the fact that the website “bmicalculatorsusa.com” says

morbid obesity can negatively impact a person’s mental health; and

(2) Dr. Armstrong’s opinion that Linda’s impairments would interfere with her

ability to maintain attention and concentration and cause her to be off-task more

than 30% of the workday. (Id.) The problem with Linda’s argument is that she does

not cite to any record evidence demonstrating that her obesity negatively impacts

her mental functioning. See Spitz, 759 F.3d at 731; Gross, 619 F.3d at 704. Thus,

the ALJ did not err with respect to her consideration of how Linda’s morbid obesity

impacts her ability to work.

C. Symptom Evaluation

Turning to the ALJ’s symptom assessment, Linda claims that the ALJ

improperly rejected her subjective complaints because she believes she is

untruthful. (R. 8, Pl.’s Mem. at 14.) An ALJ’s symptom assessment is entitled to

“special deference” and may be overturned only if it is “patently wrong.” Summers

v. Berryhill, 864 F.3d 523, 528 (7th Cir. 2017) (citation omitted). While an ALJ may

assess whether a claimant’s alleged symptoms are consistent with the medical

evidence, the ALJ may not simply reject a claimant’s claims if the claimant seems

untruthful. See SSR 16-3p, 2017 WL 5180304 (Oct. 25, 2017). The ALJ must give

“specific reasons for the weight given to the individual’s symptoms” that are

“consistent with and supported by” the record. SSR 16-3p, 2017 WL 5180304, at

*10; Skarbek v. Barnhart, 390 F.3d 500, 505 (7th Cir. 2004). Only when the ALJ’s

decision lacks any evidence or support will the court declare it to be patently wrong.

See Murphy v. Colvin, 759 F.3d 811, 815 (7th Cir. 2014).

In this case, the ALJ provided a number of reasons for her conclusion that

Linda’s subjective complaints were not entirely consistent with the medical

evidence, including that: (1) objective medical evidence supports a restriction to

sedentary work; (2) there are no residual issues from the hernia repair surgery;

(3) her diabetes is controlled with medication; (4) she stopped working because of a

layoff; (5) she was able to work a full-time sedentary job for years with same back

pain; (6) she has a conservative treatment history; (7) there are no medication side

effects; and (8) her activities of daily living suggest a greater functional capacity

than she alleges. (A.R. 120-21.) At the same time, the ALJ credited Linda’s claims

that she cannot crawl or kneel, has trouble bending, and uses a grabber, and noted

that Linda did not describe problems sitting. (Id. at 118, 121.)

Linda takes issue with the fact that the ALJ discounted her credibility in

part because she stopped working in May 2016 as a result of a layoff, not because of

a disabling condition. (R. 8, Pl.’s Mem. at 14.) She contends that this fact is

“irrelevant” because her “musculoskeletal problems had progressively worsened”

and there is no evidence that her abdominal problems did not persist. (Id.) But

Linda does not claim that her problems caused her to stop working. As the ALJ

explained, Linda testified at the hearing in February 2018 that her sciatica and

back issues were as bad then as when she stopped working in May 2016 as a result

of a layoff. (A.R. 121; see also id. at 43.) The ALJ also pointed to objective medical

evidence showing Linda’s conservative treatment—chiropractic therapy and anti-

inflammatory medication—of her back problems, which the ALJ noted was the

same treatment she had while working. (Id.) Additionally, Linda points to no

evidence in the record that her abdominal problems persisted after her wound

healed in June 2017. Therefore, the ALJ did not err by being skeptical of Linda’s

alleged symptoms based on the close timing of her disability claim on the heels of

her layoff.

Linda also takes issue with the ALJ’s finding that her diabetes “was under

control, mainly within the last few weeks with change in insulin medication.” (R. 8,

Pl.’s Mem. at 14.) She asserts that the improvement was only temporary, and that

her blood sugars typically fluctuate “with far more ‘downs’ than ‘ups.’” (Id.) Linda

misstates her own testimony—she never testified that her blood sugars usually run

higher. Rather, she testified that she “[does not] get any high numbers anymore.”

(A.R. 48.) Moreover, Linda again fails to point to any evidence in the record to

support her assertion that her diabetes is out of control. Because the ALJ

accurately relayed Linda’s testimony and drew a reasonable inference therefrom,

the court finds no error here.

Finally, Linda argues that the ALJ improperly relied on her “wide range of

daily activities” to undermine her symptom statements. (R. 8, Pl.’s Mem. at 14.)

Specifically, she says that the ALJ failed to explain how her ability to drive

translates into an ability to work full-time. (Id. (citing Bjornson v. Astrue, 671 F.3d

640 (7th Cir. 2012) (cautioning that “a person’s ability to perform daily activities . . .

does not necessarily translate into an ability to work full-time”).) The ALJ

emphasized Linda’s ability to drive with prolonged sitting in order to support her

finding that Linda is capable of full-time work in a sedentary job like the one she

had previously, (A.R. 121), and the court finds no reason to disturb this finding.

The ALJ was permitted to consider Linda’s daily activities, combined with all other

evidence of record, in evaluating the severity of her alleged symptoms. See

Alvarado v. Colvin, 836 F.3d 744, 750 (7th Cir. 2016). Because the ALJ provided a

number of reasons for her negative credibility finding, and Linda has not shown

that any of those reasons are inconsistent with or unsupported by the record, the

court grants deference to the ALJ’s assessment of her symptoms.

D. The VE’s Testimony

Linda’s last argument is that the ALJ relied on erroneous VE testimony in

concluding that as of July 1, 2017, she could return to her past work as a cancer

registry assistant. (R. 8, Pl.’s Mem. at 15.) The VE testified that this job fit under

the DOT description of data entry clerk, but then he explained that it had minimal

aspects of two other jobs in the DOT—skip tracer and mailer. (A.R. 62-64.) Based

on the VE’s testimony, the ALJ concluded that Linda’s work as a cancer registry

assistant is a composite job, (id. at 122), meaning that the job has “significant

elements of two or more occupations and, as such, [has] no counterpart in the DOT,”

SSR 82-61, 1982 WL 31387, at *2 (Jan. 1, 1982).

In her decision the ALJ addressed whether Linda actually performed this

composite job at the sedentary or light level. She explained that the record

contained somewhat conflicting evidence regarding how Linda performed the job.

For example, Linda reported in her work history report that she sat for eight hours

a day but testified to sitting between five to six hours and being “up and down doing

different things.” (A.R. 123; cf. id. at 36-37 (hearing testimony), 267 (work history

report).) She also reported that she frequently would lift boxes of copy paper and

bulk mailings weighing up to 10 pounds. (Id. at 122, 267.) However, at the hearing,

Linda testified to sending bulk mailings only once a month and reported ordering

office supplies infrequently. (Id. at 41-42, 123.) The VE testified that Linda’s data

entry clerk job (which was really a composite job), could be characterized as either

light work as performed based on her claims at the hearing or sedentary work as

she described it in her report. (Id. at 63-64; see also id. at 31-32.) Ultimately, the

ALJ found that Linda’s testimony did not change the nature of her job from

sedentary. (Id. at 122.) Relying on that finding, she determined that beginning on

July 1, 2017, Linda was not disabled because she could perform the functions of her

past work as a cancer registry assistant as she actually performed it. (Id. at 122-

23.)

Linda’s argument here is difficult to pin down. She first complains that the

VE was unable to properly classify her past relevant work, (R. 8, Pl.’s Mem. at 15),

but does not explain what she means. To the extent that Linda is arguing that the

VE improperly classified her past work as a cancer registry assistant as that of a

data entry clerk under the DOT, that issue was appropriately resolved by the ALJ.

Specifically, the ALJ considered Linda’s post-hearing objection that her past work

was a composite job and ruled in her favor on the issue. (See A.R. 122 (discussing

id. at 346 (Linda’s post-hearing brief)).) Because Linda has not identified any other

deficiencies in the VE’s testimony, there is no need to belabor this point.

Linda next makes a single-sentence assertion that the ALJ relied on the VE’s

“uncertain testimony” to find that she is capable of performing the job as she

actually performed it. (R. 8, Pl.’s Mem. at 15.) Aside from its conclusory nature, the

problem with this argument is that the ALJ did not rely on the VE’s testimony as to

the nature of Linda’s past work. She instead relied on Linda’s statements regarding

how she did the job, which is precisely what ALJs are required to do when dealing

with composite jobs.6 See SSR 82-61, 1982 WL 31387, at *2 (Jan. 1, 1982) (because

“composite jobs . . . have no counterpart in the DOT . . . [they] will be evaluated

according to the particular facts of each individual case”); see also Getch v. Astrue,

539 F.3d 473, 480 (7th Cir. 2008). The court notes that Linda does not argue that

she cannot perform the work as a cancer registry assistant. Nor does she point to

any evidence in the record to rebut the ALJ’s determination that she can. It was

Linda’s burden to demonstrate that she is unable to return to her previous work, 20

C.F.R. § 404.1520(a)(4)(iv); Knight v. Chater, 55 F.3d 309, 313 (7th Cir. 1995), and

she has not met her burden. Therefore, the court finds no error here.

6 Linda summarily argues for the first time in her reply that the ALJ did not follow

the proper procedure for considering this composite job. (R. 15, Pl.’s Reply at 3.)

Arguments raised for the first time in a reply brief are considered waived. See

Frazee v. Berryhill, 733 Fed. Appx. 831, 834 (7th Cir. 2018).

Even so, the ALJ alternatively found that there are other jobs existing in the

national economy that Linda could perform based on the RFC for sedentary work.

(A.R. 123-34.) Although Linda claims for the first time in her reply brief that the

VE’s testimony cannot support the ALJ’s determination, she does not develop any

meaningful argument to support this claim. (R. 15, Pl.’s Reply. at 3-4.) In any

event, it is well-settled that arguments raised for the first time in a reply brief are

considered waived. See Frazee, 733 Fed. Appx. at 834. Accordingly, even if the

ALJ’s determination that Linda could perform her past work as a cancer registry

assistant as she actually performed it were determined to be incorrect, the ALJ’s

alternative analysis supports a finding that Linda is not disabled.

Finally, Linda cites a number of cases, such as Voight v. Colvin, 781 F.3d 871

(7th Cir. 2015), Browning (discussed supra), and Chavez v. Berryhill, 895 F.3d 962

(7th Cir. 2018), to suggest that remand is necessary because, according to her, the

ALJ unquestionably relied on “inherently unreliable” VE testimony. (R. 8, Pl.’s

Mem. at 15.) But as already discussed, that is not what happened here. Moreover,

Linda makes no effort to explain how the issues raised in Voight, Browning, and

Chavez relate to this case. For all these reasons, Linda has not shown that a

remand is warranted.

Conclusion

For the foregoing reasons, Linda’s motion is denied, and the Commissioner's

final decision is affirmed.

ENTER:

a 9

Yoy ng B. Kj m

Sfiited States Magistrate Judge

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