# Hebert v. Kijakazi

> District Court, N.D. Illinois · July 11, 2023

URL: https://www.frixlaw.com/law-library/cases/10149132

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** July 11, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

MICHAEL H., )
)
Plaintiff, ) No. 22-cv-2446
)
v. )
) Magistrate Judge Susan E. Cox
KILILO KIJAKAZI, Acting Commissioner )
of the Social Security Administration, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER
Plaintiff Michael H.1 appeals the decision of the Commissioner of the Social Security
Administration (“Commissioner”) denying his disability benefits. The parties have filed cross motions
for summary judgment.2 As detailed below, Defendant’s motion for summary judgment [dkt. 18] is
GRANTED; Plaintiff’s motion for summary judgment [dkt. 13] is DENIED. The final decision of
the Commissioner denying benefits is affirmed.
1. Background
1.1. Procedural History
On December 19, 2015, Plaintiff protectively filed for Disability Insurance Benefits, alleging
a disability onset date of April 21, 2015. [Administrative Record (“R.”) 112.] After an administrative
hearing, Administrative Law Judge (“ALJ”) Edward P. Studzinski issued a June 11, 2018 decision
denying Plaintiff benefits. [R. 112-28.] On October 22, 2019, the Appeals Council (“AC”) entered an
order vacating the ALJ’s June 11, 2018 decision, with directions to resolve specific issues going

1 In accordance with Northern District of Illinois Internal Operating Procedure 22, the Court refers to Plaintiff
only by his first name and the first initial of his last name(s).
2 The Court construes both Defendant’ Response to Plaintiff’s Motion for Summary Judgment [dkt 18] and
Plaintiff’s Memorandum in Support of Reversing or Remanding Commissioner’s Decision [dkt. 13] as motions for
summary judgment. Additionally, in the future, Plaintiff’s counsel is cautioned to more carefully adhere to Local Rule
5.2(e) as well as this Court’s standing orders on margin size, which were violated in Plaintiff’s opening brief.
forward. [R. 135-36.] The AC also remanded the case to a new ALJ for procedural reasons having
nothing to do with the actual disability determination. [R. 136.] A new ALJ was assigned and a new
administrative hearing was held. [See R. 1507.] On April 29, 2020, the new ALJ, Joel G. Fina, issued
the second unfavorable decision in Plaintiff’s case. [R. 1507-28.] Plaintiff filed suit to challenge that
decision (NDIL Case No. 20-cv-7201). During the pendency of that suit, it was determined that the
oral testimony from the second hearing was not completely recorded. [R. 1448.] Thus, the
Commissioner ultimately sought an Agreed Remand of the ALJ’s April 29, 2020 decision, pursuant to
sentence six of 42 U.S.C § 405(g). [R. 1548-50.] That sentence six remand was granted on June 8, 2021,
meaning that the merits of the ALJ’s April 29, 2020 decision were never considered. [R. 1547.]

Accordingly, on August 18, 2021, the AC ordered a new hearing. [R. 1553-54.] A new hearing was
held, after which ALJ Fina issued the third unfavorable decision, dated on January 14, 2022, in
Plaintiff’s case. [R. 1448-67.] On May 9, 2022, Plaintiff again filed suit to challenge this latest decision.
[Dkt. 1.] On April 21, 2023, the case was reassigned to Judge Cox pursuant to Local Rule 40.3(c)
because Judge Cox had entered the Agreed Remand in Plaintiff’s earlier case. [Dkt. 25.] The ALJ’s
January 14, 2022 is the decision now before the Court.
1.2. The ALJ’s Decision
At Step One of the ALJ’s January 14, 2022 decision, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since his alleged onset date of April 21, 2015. [R. 1450.] At Step
Two, the ALJ found that Plaintiff had the severe impairments of: degenerative disc disease of the
lumbar and cervical spine; headaches, s/p traumatic brain injury; obesity; post-traumatic stress
disorder; depression; and anxiety. [Id.] The ALJ also determines that Plaintiff had the non-severe
impairment of non-prescription cannabis abuse. [R. 1451.] At Step Three, the ALJ determined that

Plaintiff did not have an impairment or combination of impairments that met or medically equaled
the severity of one of the listed impairments of 20 C.F.R. Part 404, Subpart P, App’x 1. [R. 1451-54.]
Before Step Four, the ALJ found that Plaintiff had the residual functional capacity (“RFC”) to perform
sedentary work with the following additional restrictions: lift up to ten pounds occasionally, less than
ten pounds frequently, stand or walk up to two hours per eight hour work day, and sit for up to 8
hours per 8 hour workday, with normal breaks; only occasional use of foot controls bilaterally; no
kneeling, crawling, climbing ladders, ropes or scaffolds; occasionally climbing of ramps or stairs,
balancing, stooping, and crouching; frequent reaching, handling objects (gross manipulation) and
fingering (fine manipulations); no concentrated exposure to strobing or flashing lights, loud noise;
dangerous moving machinery; no exposure to unprotected heights; work limited to simple and routine
tasks performed at a variable rate (i.e., no mechanically set pace or assembly line work) with no strict

hourly rate production requirements; no tandem tasks; and no interaction with the public in the work
setting.3 [R. 1454, 1466.] At Step Four, the ALJ determined Plaintiff was unable to perform any of his
past relevant work, but that other jobs existed in significant numbers in the national economy Plaintiff
could perform. [R. 1465-66.] Because of these determinations, the ALJ found Plaintiff not disabled
under the Act. [R. 1467.]
2. Social Security Regulations and Standard of Review
The Social Security Act requires all applicants to prove they are disabled as of their date last
insured to be eligible for disability insurance benefits. ALJs are required to follow a sequential five-
step test to assess whether a claimant is legally disabled. The ALJ must determine: (1) whether the
claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a severe
impairment; and (3) whether the severe impairment meets or equals one considered conclusively
disabling such that the claimant is impeded from performing basic work-related activities. 20 C.F.R.

3 While the ALJ did not identify the exertional level at the outset of his RFC determination, this appears to be a
typographical oversight, because the sedentary level is identified later in the opinion at R. 1466. However, the Court
is bothered that this error occurs in all three decisions in Plaintiff’s case, including the first one authored by a different
ALJ. This issue was not raised by Plaintiff and is therefore waived. See Jeske v. Saul, 955 F.3d 583, 597 (7th Cir. 2020),
Brown v. Colvin, 845 F.3d 247, 254 (7th Cir. 2016).
§ 404.1520; 20 C.F.R. § 416.920(a)(4)(i)-(v). If the impairment(s) does meet or equal this standard, the
inquiry is over, and the claimant is disabled. 20 C.F.R. § 416.920(a)(4). If not, the evaluation continues
and the ALJ must determine (4) whether the claimant is capable of performing his past relevant work.
Cannon v. Harris, 651 F.2d 513, 517 (7th Cir. 1981). If not, the ALJ must (5) consider the claimant’s
age, education, and prior work experience and evaluate whether she is able to engage in another type
of work existing in a significant number of jobs in the national economy. Id. At the fourth and fifth
steps of the inquiry, the ALJ is required to evaluate the claimant’s residual functional capacity (“RFC”)
in calculating which work-related activities she is capable of performing given his limitations. Young v.
Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004). In the final step, the burden shifts to the Commissioner

to show there are significant jobs available that the claimant is able to perform. Smith v. Schweiker, 735
F.2d 267, 270 (7th Cir. 1984).
In disability insurance benefits cases, a court’s scope of review is limited to deciding whether
the final decision of the Commissioner of Social Security is based upon substantial evidence and the
proper legal criteria. Scheck v. Barnhart, 357 F.3d 697, 699 (7th Cir. 2004). Substantial evidence exists
when a “reasonable mind might accept [the evidence] as adequate to support a conclusion.” Richardson
v. Perales, 402 U.S. 389, 401 (1971); Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001). Even where
“reasonable minds could differ” or an alternative position is also supported by substantial evidence,
the ALJ’s judgment must be affirmed if supported by substantial evidence. Elder v. Astrue, 529 F.3d
408, 413 (7th Cir. 2008); Scheck, 357 F.3d at 699. Under the substantial evidence standard, the court
neither reweighs the record nor second-guesses the ALJ’s judgment. Shideler v. Astrue, 688 F.3d 306,
310 (7th Cir. 2012). This “lax” standard is satisfied when the ALJ “minimally articulate[s] his or her
justification for rejecting or accepting specific evidence of a disability.” Berger v. Astrue, 516 F.3d 539,

545 (7th Cir. 2008) (internal signals omitted) (citing Rice v. Barnhart, 384 F.3d 363, 371 (7th Cir. 2004)).
Further, while reviewing a commissioner’s decision, the Court may not “reweigh evidence, resolve
conflicts in the record, decide questions of credibility, or substitute [its] own judgment for that of the
Commissioner.” Young, 362 F.3d at 1001.
3. Discussion
Plaintiff alleges the ALJ erred in three ways in his January 14, 2022 decision: (1) he erred in his
RFC assessment; (2) he improperly assessed Plaintiff’s subjective symptoms; and (3) he improperly
relied on the testimony of the vocational expert (“VE”). The Court disagrees with these contentions,
as detailed below.
3.1. The ALJ’s RFC Assessment was Proper
First, Plaintiff argues the ALJ neglected to follow the directives of the Appeals Council’s

remand order. [Dkt. 13, p. 9.] Presumably Plaintiff refers to the AC’s October 22, 2019 remand order,
although this is not specified. (It would make no sense for Plaintiff to be referring to the AC’s
August 18, 2021 remand order, as that document simply ordered a new hearing due to recording
deficiencies at the second administrative hearing. [R. 1553-54.]) The October 22, 2019 remand order
identified deficiencies in the ALJ’s rulings as it related to the vocational expert who testified at the first
hearing in front of ALJ Studzinski. [R. 135-36.] The order required the new ALJ, upon remand, to
obtain supplemental VE evidence. [R. 136.] That order did not, as Plaintiff implies, require the new
ALJ to change Plaintiff’s RFC, although that was certainly within the purview of the ALJ. ALJ Fina
did, in fact, obtain additional evidence and VE testimony, and did so twice because the recording of
the second administrative hearing failed, so a third hearing was held. Ultimately, ALJ Fina satisfied the
directives of both AC orders in this case in that he (a) obtained additional evidence from a VE and
(b) that he ensured a complete transcript of the administrative hearing was available.
Plaintiff fully acknowledges that the ALJ made no error in his Step Three determination that

Plaintiff did not meet or equal listing level severity. [Dkt. 13, p. 9.] Plaintiff takes issue, however, with
the mental RFC stemming from the ALJ’s Step Three analysis, alleging that the ALJ relied upon “false
equivalencies to cancel out significant deficits.” [Id.] Thus, any argument there was a Step Three error
has been waived, see Jeske v. Saul, 955 F.3d 583, 597 (7th Cir. 2020), Brown v. Colvin, 845 F.3d 247, 254
(7th Cir. 2016), but the Court will address the ALJ’s mental RFC evaluation.
The ALJ weighed the record evidence of Plaintiff’s functioning in each of the paragraph B
domains and concluded that he did not satisfy a mental impairment listing because the evidence overall
showed only moderate limitations. [R. 1452-54.] Specifically, in finding a moderate limitation in the
domain of interacting with others, the ALJ cited evidence Plaintiff had difficulty getting along with
others; exhibited behavioral issues during a neuropsychological evaluation; and reported he did not
spend time with others. [R 1452-53.] However, the ALJ also considered that the same

neuropsychological evaluation described Plaintiff’s social behavior as largely intact; that Plaintiff
reported interests including conversation, family activities, and friends during the psychological
consultative examination; that providers described Plaintiff as friendly with no problem expressing
himself; and that Plaintiff reported no problems interacting with others during prior employment.
[R. 1453.] Similarly, in finding a moderate limitation in the domain of concentrating, persisting, or
maintaining pace, the ALJ weighed Plaintiff’s difficulty with concentration during the consultative
exam and his self-reported trouble completing tasks, but also documented that other treatment notes
showed logical thought processing, normal perception, and intact or normal concentration, and that
Plaintiff remained able to drive, perform multi-step tasks, and denied any significant problems with
concentration, focus, or task completion. [Id.] As the ALJ’s discussion makes clear [see R. 1452-54],
there were “positive signs and negative signs regarding plaintiff’s capabilities” in each domain and
“these were conflicts that the ALJ had to resolve.” Shaun R. v. Saul, 2019 WL 6834664, at *5 (N.D. Ill.
Dec. 16, 2019).

Contrary to Plaintiff’s argument, the ALJ did not “suggest” Plaintiff had no limitations or
“undermine” his claimed limitations. Rather, the ALJ ultimately found he had moderate limitations in
each functional domain and subsequently included work restrictions in task complexity, routine, pace,
production, and social interactions to accommodate Plaintiff. [R. 1454.] It was appropriate for the ALJ
to consider record evidence regarding Plaintiff’s functioning in the mental domains, and the fact the
ALJ “engaged with both sides of the record and weighed the evidence in a different way than plaintiff
would have liked” is not grounds for reversal. Bertha M. v. Saul, 395 F. Supp. 3d 963, 972 (N.D. Ill.
Sept. 17, 2019). In fact, it is the ALJ’s role “to weigh the evidence and resolve any conflicts.” Hector
M. v. Kijakazi, 2022 WL 225878, at *6 (N.D. Ill. Jan. 25, 2022).
The ALJ also engaged with the medical opinions of record when crafting the mental RFC. The
ALJ generally credited the reviewing psychologists’ opinions when assessing the RFC, but he found

Plaintiff’s activities did not support finding a restriction to tasks involving three or fewer steps.
[R. 1464.] Two psychologists, Dr. David Gilliland, Psy.D. and Dr. David Biscardi, Ph.D. reviewed the
record for the state disability determination service. [R. 83-89, 98-100, 103-05.] Dr. Gilliland concluded
Plaintiff had no significant limitations in understanding and memory or adaptation, but moderate
limitations in his ability to carry out detailed instructions on a sustained basis and in social interaction.
[R 89.] In functional terms, he concluded Plaintiff remained able to perform semi-skilled tasks in a
routine schedule with limited public interaction. [Id.] At the reconsideration level, Dr. Biscardi
concluded Plaintiff “retains the capacity to understand, remember, carry out, and sustain performance
of 1-3 step tasks” and could complete a normal workday, interact with supervisors/coworkers with
no public contact, and adapt to changes and stressors associated with simple routine work. [R. 105.]
The ALJ gave these psychologists’ opinions some weight when assessing plaintiff’s mental RFC,
except for Dr. Biscardi’s opinion regarding task steps because the opinion did not define “step,” and
Plaintiff’s ability to drive showed a capacity for tasks involving more than three steps.4 [R. 1464.] The

4 The Court does not find the ALJ equated Plaintiff’s ability to drive (or attend to his personal needs) with an
ability to engage in full-time work. Rather, the ALJ considered record evidence of Plaintiff’s functional abilities when
rating his degree of limitation in the listing domains. See Wasik v. Kijakazi, 2022 WL 3684634, at *3 (N.D. Ill. Aug.
25, 2022) (ALJ appropriately considered claimant’s activities at step three and subsequently accounted for his
ALJ’s RFC finding is otherwise consistent with the opinions of Drs. Gilliland and Biscardi, except the
ALJ included additional restrictions to variable-rate work with no hourly quotas. Burmester v. Berryhill,
920 F.3d 507, 510 (7th Cir. 2019) (when ALJ’s RFC finding is “more limiting” than reviewing
psychologists’ opinions, this illustrates “reasoned consideration given” to evidence presented by
claimant.). Plaintiff does not argue that the ALJ erred in partially relying on the reviewing
psychologists’ opinions.
On the other hand, Plaintiff does seem to take issue with the ALJ’s treatment of the opinion
of Plaintiff’s physician, Dr. Awais Butt, MD, which the ALJ afforded no weight. The ALJ began his
analysis of Dr. Butt’s opinion by acknowledging Dr. Butt’s longitudinal treatment relationship with

Plaintiff. [R. 1462.] The ALJ then detailed how he found Dr. Butt’s opinions unsupported and
inconsistent with other record evidence in several respects. First, the ALJ noted that Dr. Butt did not
identify any objective findings or identify a clinical basis to support his opined limitations, including
absenteeism, off-task time, or needing to lie down. [R. 1462-63]; see 20 C.F.R. § 404.1527(c)(3) (ALJ
may discount opinions unsupported by medical signs or clinical findings). Second, the ALJ found Dr.
Butt’s opinion of extreme limitations regarding standing, walking, and carrying inconsistent with
examination findings that consistently documented normal ambulation with no assistive device, no
problems with balance, and full strength in all extremities. [R. 1462]; see 20 C.F.R. § 404.1527(c)(4)
(ALJ may discount opinions inconsistent with the record). Third, the ALJ contrasted Dr. Butt’s
opinion that pain would “constantly” interfere with attention and concentration with mental status
exams where Plaintiff routinely exhibited intact concentration and attention. [Id.] Fourth, the ALJ
noted that Dr. Butt’s opinions about Plaintiff’s ability to work were vocational and outside the scope
of his expertise. [R. 1462-63]; see 20 C.F.R. § 404.1527(c)(5) and (d) (ALJ may consider source’s

specialty, and opinions about claimant’s ability to work are not medical opinions because this issue is

limitations when determining his RFC).
reserved to the Commissioner). Finally, the ALJ found Dr. Butt’s extreme opinions inconsistent with
record evidence that showed Plaintiff’s pain, headaches, and mental symptoms improved with
medication. [R. 1463.] Although Plaintiff repeats Dr. Butt’s opined limitations in an apparent challenge
to the ALJ’s assessment of Dr. Butt’s opinions, he fails to challenge any of the ALJ’s reasons for
discounting those opinions. Regardless, the Court finds the ALJ cited several valid reasons for
discounting Dr. Butt’s opinion. The Court also finds the ALJ acted within his “substantial discretion”
in crediting the reviewing doctors’ opinions over the opinions from Dr. Butt. Wilson v. Berryhill, 737 F.
App’x 286, 290 (7th Cir. 2018) (ALJ has “substantial discretion” in weighing conflicting medical
opinions) (citing Dixon v. Massanari, 270 F.3d 1171 1178 (7th Cir. 2001)).

As to the impact of these opinions on the Plaintiff’s mental RFC, the ALJ accommodated
Plaintiff’s mental limitations by restricting him to only simple and routine tasks, performed at a
variable rate with no strict hourly-rate production requirements, no machine-pace or assembly line
work, no tandem tasks, and no interaction with the public. [R. 1454.] Although Plaintiff himself
indicated no problems with concentration, paying attention, or following instructions [see R. 368], he
now argues the ALJ’s RFC restrictions were insufficient to account for a moderate limitation in
concentration, persistence, or pace. [Dkt. 13, pp. 11-14.] However, the opinions of Drs. Gilliland and
Biscardi establish Plaintiff remained able to sustain simple tasks, despite moderate limitations in this
broad functional domain. [See R. 89, 105.] The ALJ was entitled to rely on their opinions, and he did
not err by including additional pace restrictions (variable rate work, no hourly quotas, and no machine
pace or assembly line work) that further accommodated Plaintiff. See Jozefyk v. Berryhill, 923 F.3d 492,
498 (7th Cir. 2019) (upholding denial of benefits where ALJ accommodated Plaintiff beyond medical
opinions based on additional record evidence).

Further, the Seventh Circuit has rejected the argument that there is an inherent inconsistency
between a moderate rating in the broad area of concentration, persistence, or pace, and the ability to
perform simple, repetitive tasks at a consistent pace. Pavlicek v. Saul, 994 F.3d 777, 783 (7th Cir. 2021);
see also Stephanie H. v. Comm’r, 2021 WL 2986298, at *6-7 (N.D. Ill. July 14, 2021) (citing Pavlicek and
rejecting categorial argument that limitations to simple, repetitive work cannot address moderate
deficiencies of concentration, persistence and pace). The Pavlicek court noted the Agency’s recently
revised medical opinion regulations define a “moderate limitation” to mean “that functioning in that
area is ‘fair.’” Pavlicek, 994 F.3d at 783 (citing 20 C.F.R. Pt. 404, Subpt. P, App. 1). And “‘fair’ in
ordinary usage does not mean ‘bad’ or ‘inadequate.’” Id. Accordingly, the court held that a “moderate”
limitation in this area is “consistent with the ability to perform simple, repetitive tasks at a consistent
pace.” Id. The Commissioner correctly notes that Pavlicek is consistent with the Seventh Circuit’s

recent jurisprudence affirming almost every ALJ decision where the claimant had a moderate rating in
concentration, persistence, or pace and the RFC included evidence-based limitations to simple,
repetitive tasks. See, e.g., Peeters v. Saul, 975 F.3d 639, 641-42 (7th Cir. 2020); Simons v. Saul, 817 F. App’x
227, 230-32 (7th Cir. 2020); Morrison v. Saul, 806 F. App’x 469, 473-74 (7th Cir. 2020); Kuykendoll v.
Saul, 801 F. App’x 433, 438 (7th Cir. 2020); Urbanek v. Saul, 796 F. App’x 910, 914-15 (7th Cir. 2019);
Pytlewski v. Saul, 791 F. App’x 611, 615-17 (7th Cir. 2019); Jozefyk v. Berryhill, 923 F.3d 492, 497-98 (7th
Cir. 2019); Burmester, 920 F.3d at 511-12. Thus, the Court can find no error in the ALJ’s finding that
Plaintiff can perform simple, repetitive tasks at a consistent pace, despite his moderate limitations in
concentration, persistence, and pace.
In sum, Plaintiff has failed established any error in the ALJ’s mental RFC determination; the
Court will not overturn the ALJ’s decision on this basis.
3.2. The ALJ Adequately Assessed Plaintiff’s Subjective Statements
Next, Plaintiff complains the ALJ improperly assessed Plaintiff’s subjective statements about

his symptoms. The regulations set forth a two-step process for evaluating a plaintiff’s statements about
his impairments. See 20 C.F.R. § 416.929. An ALJ first determines whether a medically determinable
impairment “could reasonably be expected to produce the pain or other symptoms alleged.” 20 C.F.R.
§ 416.929(a). If so, the ALJ then “evaluate[s] the intensity and persistence” of the plaintiff’s symptoms
and determines how they limit the plaintiff’s “capacity for work.” 20 C.F.R. § 416.929. In applying the
second step, the ALJ assesses whether medical evidence substantiates the plaintiff’s symptoms. See
Social Security Ruling (“SSR”) l6-3p. If medical evidence does not confirm the intensity and
persistence of the claimed symptoms, the ALJ considers a list of non-exhaustive factors. See id. An
ALJ’s assessment of a plaintiff’s subjective statements of symptoms need not be flawless and is entitled
to deference unless it is “patently wrong,” which is a “high burden.” Curvin v. Colvin, 778 F.3d 645,
651 (7th Cir. 2015); Turner v. Astrue, 390 F. App‘x 581, 587 (7th Cir. 2010). Only when an ALJ’s

assessment lacks any explanation or support will a court declare it to be “patently wrong.” Elder v.
Astrue, 529 F.3d 408, 413-14 (7th Cir. 2008).
First Plaintiff argues his ability to perform routine daily activities does not prove a capacity for
full-time competitive work. [Dkt. 13, p. 14.] While it is true that daily activities do not automatically
prove work capacity, the ALJ did not equate Plaintiff’s activities with conclusive proof of his work
capacity. Instead, the ALJ properly considered Plaintiff’s activities when assessing whether the record
supported the degree of limitation Plaintiff and his domestic partner alleged. [See R. 1452-54, 1464-65.]
For example, not only did the ALJ note that from December 2017 through May 2021, Plaintiff denied
difficulties with daily activities, but the ALJ also found Plaintiff’s allegations of lying down most of
the day inconsistent with the daily activities he was able to perform. [R. 1458, 1460.] It was “entirely
permissible” for the ALJ to consider plaintiff’s activities when weighing his subjective reports of
limitations. Alvarado v. Colvin, 836 F.3d 744, 750 (7th Cir. 2016); Loveless v. Colvin, 810 F.3d 502, 508
(7th Cir. 2016); 20 C.F.R. § 404.1529(c)(3)(i). The ALJ simply concluded these activities did not

support the degree of limitation Plaintiff alleged.
Plaintiff also faults the ALJ for observing that his symptoms improved with medication and
conservative treatment. [Dkt. 13, pp. 14-15.] However, it was entirely proper for the ALJ to consider
Plaintiff’s medication and conservative course of treatment when weighing his allegations of disabling
limitations. See 20 C.F.R. § 404.1529(c)(3)(iv)-(v). The ALJ observed that Plaintiff received only
conservative treatment, and that the record reflected this treatment was effective in relieving Plaintiff’s
symptoms. 20 C.F.R. § 404.1529(c)(3)(v) (ALJ entitled to consider routine and conservative nature of
claimant’s treatment when assessing credibility); see, also, e.g., Frank J. v. Saul, 2020 WL 6447928, at *9
(N.D. Ill. Nov. 3, 2020); Adam B. v. Saul, 2020 WL 1675462, at *7 (N.D. Ill. Apr. 6, 2020); Vincent A.
v. Berryhill, 2019 WL 2085104, at *12 (N.D. Ill. May 13, 2019).
In sum, Plaintiff has not demonstrated that the ALJ’s assessment of his symptom allegations

was patently wrong. The ALJ reasonably assessed Plaintiff’s subjective assertions, and supported his
reasoning in determining these assertions were not fully reliable. The Court will not overturn the ALJ’s
decision on this basis.
3.3. The ALJ Properly Relied on Uncontradicted VE Testimony
Lastly, Plaintiff argues the ALJ relied upon inherently unreliable testimony from the vocational
expert. This is not so.
In general, the role of a vocational expert is to provide information regarding the kinds of work
and the number of jobs in the national economy a hypothetical person with certain limitations can
perform. Pagos v. Colvin, 2015 WL 1502923, at *7 (N.D. Ill. Mar. 27, 2015); Pelfrey v. Com’r of Soc. Sec.,
2010 WL 909134, at *4 (S.D. Ohio Mar. 10, 2010); see also, Sample v. Schweiker, 694 F.2d 639, 643 (9th
Cir. 1982) (role of a VE is to “translate[ ] factual scenarios into realistic job market probabilities”).
At the administrative hearing at issue here, the VE testified that an individual such as Plaintiff
with the above RFC would be able to perform available work at the sedentary unskilled level, and

offered examples of representative occupations that exist in significant numbers in the national
economy that Plaintiff could perform. [R. 1497-98.] Those representative occupations consisted of
document preparer, addresser, and cutter and paster. [R 1498.] On cross-examination, Plaintiff’s
counsel asked the VE whether these jobs had been “automated out of existence.” [R. 1500.] In
response, the expert confirmed that “while there have been advances in technology[,] the basics of the
position still remain.” [Id.] As a specific example, the VE then went on to explain that the document
preparer job now involved using scanners rather than microfilm, but the core role of the job remained
preparing documents. [Id.] After this explanation, Plaintiff’s counsel had no further questions for the
VE. [Id.]
Now, however, despite declining to ask any follow-up questions at the hearing, Plaintiff asserts
that the VE’s testimony was “suspect” and the ALJ should not have relied on that testimony. [Dkt. 13,

p. 15.] Plaintiff offers no factual basis for this argument. While Plaintiff’s counsel did raise an
objection, the ALJ adequately explained the reasoning behind his inclusion of certain representative
jobs because they had not been automated out of existence.5 The VE’s testimony is uncontradicted
(and, for what it’s worth, that uncontradicted testimony does not strike the Court as inherently
suspect). The Seventh Circuit has long held that an ALJ is entitled to rely on a vocational expert’s
testimony when that testimony is uncontradicted. Liskowitz v. Astrue, 559 F.3d 736, 746 (7th Cir. 2009);
Donahue v. Barnhart, 279 F.3d 441, 446 (7th Cir. 2002). It was Plaintiff’s burden to prove his disability
claim, and because an attorney represented him at the administrative hearing, there is a presumption
he made his best case to the ALJ. Summers v. Berryhill, 864 F.3d 523, 527 (7th Cir. 2017). Because
Plaintiff failed to object to or counter the VE’s testimony that the representative jobs identified still
existed in the national economy, he has forfeited any claim of error.6 Brown v. Colvin, 845 F.3d 247, 254

5 This is in no way similar to the line of cases where a VE’s job availability numbers were questioned and the VE
was unable to substantiate the basis for those numbers. See, e.g., Biestek v. Berryhill, 139 S.Ct. 1148 (2019); Donahue v.
Barnhart, 279 F.3d 441 (7th Cir. 2002); McKinnie v. Barnhart, 368 F.3d 907 (7th Cir. 2004); Brown v. Berryhill, 2017 WL
5473466 (N.D. Ill. 2017); and Kimberly N. v. Saul, 2021 WL 1688173 (N.D. Ill. Apr. 29, 2021).
6 Plaintiff claims he did object [dkt. 19, p. 4], but in reality, he asked the VE a question about whether the jobs
were obsolete, and the answer he received was no (with an explanation as to why they were not). Plaintiff’s counsel
mounted no challenge to this answer, not even asking the VE how he came to this knowledge or his sources for the
(7th Cir. 2016) (a claimant forfeits a challenge to VE testimony by failing to object during the hearing).
Thus, the ALJ was entitled to rely on the VE’s uncontradicted testimony.
The Court will not overturn the ALJ’s decision on this basis.
4. Conclusion
For the reasons detailed above, the Court finds the AL]’s decision to be supported by
substantial evidence. Defendant’s motion for summary judgment [dkt. 18] is GRANTED; Plaintiffs
motion for summary judgment [dkt. 13] is DENIED. The final decision of the Commissioner denying
benefits is affirmed.

ENTERED: July 11, 2023
Susan E. Cox,
United States Magistrate Judge

same. There really was no colorable objection made here. Plaintiffs counsel chose to live with the answer given by
the VE to his question, an answer which is not inherently suspect.
14

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10149132. Public record. Not legal advice.