# Martin v. Commissioner of Social Security

> District Court, S.D. Illinois · May 7, 2021

URL: https://www.frixlaw.com/law-library/cases/10153620

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** May 7, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

GORDON L. M.,1 )
)
Plaintiff, )
)
v. ) Case No. 20-cv-398-RJD2
)
COMMISSIONER of SOCIAL SECURITY, )
)
Defendant. )
)

MEMORANDUM AND ORDER

DALY, Magistrate Judge:

In accordance with 42 U.S.C. § 405(g), Plaintiff seeks judicial review of the final agency
decision denying his application for Disability Insurance Benefits (DIB) pursuant to 42 U.S.C. §
423.
Procedural History
Plaintiff applied for DIB in December 2015, alleging he became disabled in September
1992 (Tr. 138). Plaintiff’s claim was denied through the administrative process following a
hearing, resulting in an unfavorable ALJ decision dated November 2, 2016 (Tr. 16-31). The claim
proceeded to this Court, resulting in the entry of an Order dated October 23, 2017 remanding the
claim to the Commissioner for rehearing (Tr. 684-685; 691-705). ALJ Michael Scurry again held
a hearing and issued an unfavorable decision on July 9, 2018 (Tr. 617-640). The claim once again

1 In keeping with the court’s practice, Plaintiff’s full name will not be used in this Memorandum and Order due to
privacy concerns. See, Fed. R. Civ. P. 5.2(c) and the Advisory Committee Notes thereto.

2 Pursuant to 28 U.S.C. §636(c), this case was assigned to the undersigned for final disposition upon consent of the
parties (Doc. 12).
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proceeded to this Court and an Order was entered on July 30, 2019 remanding the claim to the
Commissioner for rehearing (Tr. 2333-2344). Upon rehearing, ALJ Jason Yoder issued an
unfavorable decision on February 5, 2020 (Tr. 2226-2255). Plaintiff did not file written
exceptions and the Appeals Council did not review the ALJ’s decision. Plaintiff timely filed this
case on May 1, 2020 (Doc. 1).

Issues Raised by Plaintiff
Plaintiff raises the following issues:
1. The ALJ erred by failing to comply with the requirements of SSR 18-01p3.
2. The ALJ erred in failing to find Plaintiff was disabled due to absenteeism caused
by his exposure to weather that was either humid, hot, or below freezing.

Applicable Legal Standards

To qualify for DIB, a claimant must be disabled within the meaning of the applicable
statutes4. Under the Social Security Act, a person is disabled if he has an “inability to engage in
any substantial gainful activity by reason of any medically determinable physical or mental
impairment 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 twelve months.” 42 U.S.C. § 423(d)(1)(a).
To determine whether a plaintiff is disabled, the ALJ considers the following five questions
in order: (1) Is the plaintiff presently unemployed? (2) Does the plaintiff have a severe impairment?
(3) Does the impairment meet or medically equal one of a list of specific impairments enumerated
in the regulations? (4) Is the plaintiff unable to perform his former occupation? and (5) Is the

3 In Section V of his Brief, “Issues,” Plaintiff cites to SSR 18-2p; however, this citation appears to be in error as he
later cites 18-01p in the Argument portion of his Brief.
4 The statutes and regulations pertaining to Disability Insurance Benefits (DIB) are found at 42 U.S.C. § 423, et seq.,
and 20 C.F.R. pt. 404.

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plaintiff unable to perform any other work? 20 C.F.R. § 404.1520.
An affirmative answer at either step three or step five leads to a finding that the plaintiff is
disabled. A negative answer at any step, other than at step three, precludes a finding of disability.
The plaintiff bears the burden of proof at steps one through four. Once the plaintiff shows an
inability to perform past work, the burden then shifts to the Commissioner to show that there are

jobs existing in significant numbers in the national economy which plaintiff can perform.
Zurawski v. Halter, 245 F.3d 881, 886 (7th Cir. 2001).
This Court reviews the Commissioner’s decision to ensure that the decision is supported
by substantial evidence and that no mistakes of law were made. It is important to recognize that
the scope of review is limited. “The 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). Thus, this
Court must determine not whether plaintiff was, in fact, disabled at the relevant time, but whether
the ALJ’s findings were supported by substantial evidence and whether any errors of law were
made. Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003). This Court uses the

Supreme Court’s definition of substantial evidence, i.e., “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148,
1154 (2019) (internal citations omitted).
In reviewing for “substantial evidence,” the entire administrative record is taken into
consideration, but this Court does not reweigh evidence, resolve conflicts, decide questions of
credibility, or substitute its own judgment for that of the ALJ. Burmester v. Berryhill, 920 F.3d
507, 510 (7th Cir. 2019). However, while judicial review is deferential, it is not abject; this Court
does not act as a rubber stamp for the Commissioner. See Parker v. Astrue, 597 F.3d 920, 921

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(7th Cir. 2010), and cases cited therein.
The Decision of the ALJ
In his opinion, ALJ Yoder followed the five-step analytical framework described above.
The ALJ determined that Plaintiff met the insured status requirements of the Social Security Act
on December 31, 1997 (Tr. 2231). The ALJ determined that Plaintiff had not engaged in

substantial gainful activity during the period from his alleged onset date of September 3, 1992
through December 31, 1997, the date of last insured (Id.). The ALJ found that through the date
of last insured, Plaintiff had the following severe impairments: a history of infection secondary to
a tooth abscess, interstitial pulmonary fibrosis, a history of mediastinitis and bilateral empyemas,
chronic plural thickening, and restrictive ventilatory defect with a history of emphysema and
tracheostomy (Tr. 2232). The ALJ determined that through the date of last insured Plaintiff did
not have an impairment or combination of impairments that met or medically equaled the severity
of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d),
404.1525, 404.1526) (Tr. 2233). The ALJ specifically considered Listing 3.02 in this regard (Tr.

2234).
The ALJ found that through the date last insured, Plaintiff had the residual functional
capacity to perform a full range of sedentary work as defined under 20 C.F.R. § 404.1567(a), with
the following exceptions and/or qualifications: he can never climb ladders, ropes or scaffolding;
he can occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl; he must avoid
concentrated exposure to dangerous workplace hazards such as exposed moving machinery and
unprotected heights; and he must avoid all exposure to humidity, temperature extremes such as
heat and cold, fumes, odors, dusts, gases, and areas of poor ventilation (Tr. 2235).

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Based on the testimony of a vocational expert, the ALJ concluded that Plaintiff is unable
to perform past relevant work, but concluded there are jobs that exist in significant numbers in the
national economy that Plaintiff can perform (Tr. 2245-46).
The Evidentiary Record
The Court reviewed and considered the entire evidentiary record in formulating this

Memorandum and Order. The following summary of the record is directed to Plaintiff’s
arguments.
1. Agency Forms
Plaintiff was born in 1969 (Tr. 161). He was insured for DIB through December 31, 1997
(Tr. 209). Plaintiff was 28 years old on the date of last insured (Tr. 54). Plaintiff’s alleged onset
date is September 3, 1992 (Tr. 161). Plaintiff completed a disability report dated December 29,
2015, wherein he listed the following as conditions that limit his ability to work: COPD, bilateral
hip replacement, manic depression, schizoaffective disorder (Tr. 165). At the time of his
Disability Determination Explanation in February 2016, Plaintiff was 68 inches and weighed 245

pounds (Tr. 54).
2. Evidentiary Hearings
Plaintiff was represented by counsel at all three evidentiary hearings in this matter. The
first evidentiary hearing was held on October 19, 2016 (Tr. 32). Plaintiff testified that he
developed a tooth infection while in basic training after joining the military in August 1992 (Tr.
41-42). Numerous complications stemming from the tooth extraction developed and resulted in
a hospital stay (Tr. 42).
Plaintiff testified he had not engaged in any work since September 1992 as it is hard for

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him to get around and he needs to take many breaks if he is walking (Tr. 48-49). Plaintiff testified
he would not need to take these breaks if he was doing secretarial-type work (Tr. 49).
Plaintiff further testified that his lungs had not improved since 1993 and he expects to be
on oxygen constantly in the next few years (Id.). Plaintiff testified he has good days and bad days,
and it is easier for him to breathe when it is not humid (Tr. 50). Plaintiff testified that when it is

very humid, the air feels heavy and it is harder for him to breathe and move around (Id.). He
would not be able to do a secretarial-type job on his bad days (Tr. 51).
Plaintiff testified at the second evidentiary hearing on June 14, 2018 (Tr. 641). At this
hearing, Plaintiff testified he had one hip replaced in 2006, and the other hip replaced in 2007 (Tr.
651). Plaintiff testified that between 1993 and 1997 he could stand for about thirty minutes at a
time before he had to rest (Tr. 655). The weather affected his breathing during this time and he
could not leave the house on days when it was very hot (95 degrees or higher), very cold (below
freezing), or humid (70% of above) (Tr. 655-56).
At the third hearing on January 16, 2020 (Tr. 2256), Plaintiff again testified that it was

difficult for him to walk between 1993 and 1997 and he would need frequent breaks (Tr. 2268).
Plaintiff also reiterated his difficulty in engaging in any activity when the weather was humid or
very cold (Tr. 2269).
A medical expert, Dr. Holan, also testified at the January 16, 2020 hearing (Tr. 2285). For
the relevant timeframe of September 3, 1992 to December 31, 1997, Dr. Holan testified that
Plaintiff had the following medically identifiable impairments: a history of mediastinitis and
bilateral empyemas that were treated while he was hospitalized from November 1992 to March
1993; chronic pleural thickening; and restrictive ventilatory defect by pulmonary function testing

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(Tr. 2287-88). Dr. Holan testified that prior to Plaintiff’s hospital discharge in 1993, he
underwent pulmonary function testing that indicated a forced expiratory volume of 0.90 and forced
vital capacity of 0.92, both of which are at listing level for 3.02 category of impairment (Tr. 2288).
Dr. Holan testified that the March 4, 1993 spirometry testing occurred within 30 days of Plaintiff’s
hospital stay for his prolonged illness with surgical procedures (Tr. 2289).

The next pulmonary function test in the record was completed in August 2010 (Tr. 2290).
This test revealed a forced vital capacity of 1.88 liter, and force expiratory volume of 1.54 liter,
which meet the criteria for Listing 3.02A (forced expiratory volume) and 3.02B (forced vital
capacity) (Tr. 2290).
Dr. Holan testified that the initial pulmonary function tests in March 1993 were “probably
lower than they would be if [Plaintiff] was well and stable … and able to give a good effort,” as
he had been through a prolonged illness and had not been eating well at the time (Tr. 2292). Dr.
Holan further testified that the “values from March of 1993 prior to [Plaintiff’s] discharge were
maybe slightly falsely low” due to poor lung capacity (Tr. 2292-93). Dr. Holan testified that

between the 1993 test and the 2010 test, Plaintiff “probably would’ve shown some improvement,
but it would’ve been steady improvement” (Tr. 2291).
Dr. Holan indicated Plaintiff would need to avoid all exposure to temperature extremes of
heat and cold, as well as humidity as these conditions would have a “significantly deleterious effect
on [Plaintiff’s] pulmonary function” (Tr. 2294-96).
A vocational expert, David Salewsky, testified at the hearing on January 16, 2020 (Tr.
2297). Mr. Salwesky testified that an individual of Plaintiff’s age, education and past work
experience, who would be limited to sedentary work with certain limitations, including avoidance

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of all exposure to humidity and temperature extremes, could perform various occupations,
including patcher, touch-up screener, or addresser (Tr. 2298-99). These occupations would not
be available if an individual, such as Plaintiff, required two 30-minute unscheduled breaks during
the workday or would be absent from the workplace two days a month on average (2299-2300).
3. Relevant Medical Records

Following a tooth extraction while in basic training after joining the military in August
1992, Plaintiff suffered numerous complications and an extended hospital stay from November 3,
1992 to March 10, 1993 (Tr. 605-611). Plaintiff underwent a pulmonary function test (“PFT”) on
March 3, 1993, which demonstrated a forced vital capacity (“FVC”) of 0.92, and a forced
expiratory volume in one second (“FEV-1”) of 0.90 (Tr. 611). Another PFT was planned in six
months, but there is no record of it (Tr. 611). Plaintiff’s diagnosis at discharge on March 10, 1993
was severe pulmonary restrictive disease secondary to pulmonary fibrosis as a result of extensive
empyemas requiring decortication (Tr. 607).
On June 29, 2010, Plaintiff was given a provisional diagnosis of dyspnea and scheduled

for a PFT and an echocardiogram (Tr. 1856). The PFT was performed on August 17, 2010, and
it demonstrated good effort (Tr. 1859-60). Plaintiff’s FVC was 1.88L (37% of predicted value),
and his FEV1 was 1.54L (38% of predicted value) (Tr. 1860). Lung volume measurements
showed total lung capacity was 46% of predicted value, residual volume was 63% of predicted
value, and the residual capacity was 52% of the predicted value (Id.). The diffusion capacity of
the lung for carbon monoxide was 52% of the predicted value, and when adjusted for alveolar
volume, was 146% of the predicted value (Id.). The reviewing physician found Plaintiff’s lung
volume measurements suggestive of a moderate restrictive process, and questioned whether any

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lung tissue had been removed, noting Plaintiff had undergone a thoracotomy (Id.).
On December 24, 2014, Plaintiff reported a history of dyspnea for 7-8 months (Tr. 1749-
50). Plaintiff indicated his dyspnea was worse over the past six months (Tr. 1755). A PFT was
performed on December 24, 2014, for which Plaintiff demonstrated good effort (Tr. 1558).
Plaintiff’s FVC was 1.54L, which was 31% of the predicted value, and Plaintiff’s FEV1 was 1.22L,

which was 31% of the predicted value (Id.). When a bronchodilator was administered, Plaintiff’s
FVC increased by 2% and his FEV1 increased by 8% (Id.). The diffusion capacity of the lung for
carbon monoxide was 68% of the predicted value, and when adjusted for alveolar volume, was
171% of the predicted value (Tr. 1559). Plaintiff’s gas-maldistribution was consistent with
emphysema (Id.). The results of the PFT were compatible with mixed obstructive and restrictive
lung disease (Id.). Plaintiff was evaluated for home oxygen on this date and prescribed two liters
per minute during exercise and two liters per minute at night (Tr. 1546-47).
Plaintiff continued to be seen for complaints of shortness of breath through 2017, and on
December 7, 2017, his home oxygen was increased to three liters per minute with exercise and two

liters per minute at night (Tr. 1500). Plaintiff was not assessed as needing continuous oxygen
(Id.).
4. Treating Physician Daniel W. Belcher, M.D.
Dr. Belcher treated Plaintiff during his hospitalization at the VA Medical Center and as an
outpatient following his discharge (Tr. 610). On April 25, 1994, Dr. Belcher authored a report
summarizing Plaintiff’s history since his 1992-1993 hospitalization (Tr. 610-11). Dr. Belcher
opined that Plaintiff’s condition had stabilized and that he had significantly reduced respiratory
status from normal for a man of his age (Tr. 611). Dr. Belcher noted that Plaintiff seemed to be

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coping with his limited respiratory status and was active and able to perform activities of daily
living (Id.). Dr. Belcher opined that it seemed Plaintiff would have a permanent disability with
respect to his pulmonary status (Id.).
5. Non-Examining State Agency Consultant Physician – Steven A. Golub, MD
Steven A. Golub, MD, is an internist who was retained by ALJ Michael Scurry to answer

interrogatories on Forms HA-1151-BK and HA-L70 (Tr. 875-886). Dr. Golub provided answers
to the interrogatories on February 6, 2018 (Tr. 889-98). Dr. Golub indicated that the incident in
1992 was “quite severe and clinically significant” (Tr. 896). Dr. Golub found that Plaintiff met
Listing 3.02 noting that “[p]ost incident [Plaintiff] had clinical manifestations of compromised
pulmonary function with a requirement for supplemental oxygen/oxygen desaturation which
would be expected to remain permanent” (Tr. 897). Dr. Golub also remarked that pulmonary
function testing was not noted in the clinical records (Id.).
Dr. Golub opined that Plaintiff could never tolerate exposure to unprotected heights,
pulmonary irritants, extreme cold, and extreme heat (Tr. 893), and could occasionally tolerate

exposure to humidity and wetness (Id.).
Analysis
Plaintiff first argues that the ALJ erred by failing to find Plaintiff’s pulmonary impairment
met the requirements of Listings 3.02(A) and 3.02(b) since at least March 1993. Plaintiff
contends that the ALJ was mandated to conclude Plaintiff met the requirements of Listing 3.02(A)
and Listing 3.02(B) and find him disabled pursuant to 20 C.F.R. § 404.1520(a)(4)(iii), but failed
to do so. Plaintiff asserts SSR 18-01p governs his claim and dictates that for non-traumatic claims
such as Plaintiff’s, disability is determined by the first date the claimant met that definition.

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Plaintiff contends that he met Listing 3.02(A) and 3.02(B) since March 1993 and, as such, was
disabled as of that date. Plaintiff does not develop this argument, and it is not clear how it fits
within the context of this case as the parties agree the relevant date of disability is September 3,
1992. Insofar as Plaintiff makes this argument, it seems to be in support of his broader argument
that he met Listing 3.02. Thus, the Court focuses its consideration on whether Plaintiff met the

Listing requirement of 3.02.
A finding that a claimant’s condition meets or equals a listed impairment is a finding that
the claimant is presumptively disabled. The Listings are found at 20 C.F.R. Pt. 404, Subpt. P,
App. 1. In order to be found presumptively disabled, the claimant must meet all of the criteria in
the listing; an impairment “cannot meet the criteria of a listing based only on a diagnosis.” 20
C.F.R. §404.1525(d). The claimant bears the burden of proving that he meets or equals a listed
impairment. Filus v. Astrue, 694 F.3d 863, 868 (7th Cir. 2012); Maggard v. Apfel, 167 F.3d 376,
380 (7th Cir. 1999). When evaluating whether an impairment is presumptively disabling under a
listing, the ALJ “must discuss the listing by name and offer more than a perfunctory analysis of

the listing.” Jeske v. Saul, 955 F.3d 583, 588 (7th Cir. 2020) (quoting Barnett v. Barnhart, 381
F.3d 664, 668 (7th Cir. 2004)).
The 3.00 series of the Listings covers respiratory disorders. As is relevant here, Listing
3.02(A) requires an “FEV1” less than or equal to a value ascribed based on age, gender, and height
without shoes. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 3.02A. In this instance, the value provided
for Plaintiff, a male, age 20 or older, at a height of 68 inches without shoes requires a FEV1 less
than or equal to 1.60. Listing 3.02(B) requires an FVC of less than or equal to a value ascribed
based on age, gender, and height without shoes. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 3.02B.

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The value provided for Plaintiff, a male, age 20 or older, at a height of 68 inches without shoes
requires a FVC less than or equal to 2.0.
It is apparent from the record that Plaintiff’s March 1993, August 2010, and December
2014 FEV1 tests all measure below the 1.60 requirement. Plaintiff’s March 1993, August 2010,
and December 2014 FVC tests also all measured below the 2.0 requirement. However, as testified

to by Dr. Holan, the March 1993 test (the only test in the record taken during the relevant time,
prior to Plaintiff’s date last insured) did not meet the requirements for acceptable results. More
specifically, the relevant Listing states that the claimant “must be medically stable at the time of
the test.” 20 C.F.R. Pt. 404, Subpt. 9, App. 1, § 3.00E. The Listing provides examples of when
a claimant would not be considered medically stable: (i) within 2 weeks of a change in claimant’s
prescribed respiratory medication. (ii) experiencing, or within 30 days of completion of treatment
for, a lower respiratory tract infection. (iii) experiencing, or within 30 days of completion of
treatment for, an acute exacerbation (temporary worsening) of a chronic respiratory disorder; or
(iv) hospitalized, or within 30 days of a hospital discharge, for an acute myocardial infarction

(heart attack). 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 3.00E(2)(a). Dr. Holan indicated that
Plaintiff’s March 1993 pulmonary function tests were taken while he was in the hospital for a
prolonged illness and had underwent surgical procedures. As such, Dr. Holan testified that due
to his hospital stay and prolonged illness, the March 1993 results may be “slightly falsely low”
and were “probably lower” than the results would have been if Plaintiff had been stable and was
able to give a good effort (Tr. 2292-93).
In the Court’s July 30, 2019 Order remanding this matter to the Commissioner for
rehearing, it determined the ALJ failed to discuss Plaintiff’s March 1993 test in relation to other

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tests from years later, which tended to show a trend of Plaintiff meeting the Listing. The Court
also noted the ALJ failed to discuss this trend in combination with Dr. Golub’s opinion that, for
the period of September 3, 1992 to December 31, 1997, Plaintiff met the Listing.
Defendant asserts AJL Yoder reasonably determined that Plaintiff did not meet Listing
3.02 for chronic respiratory disorders, and the ALJ’s discussion was far beyond perfunctory. The

Court agrees.
In his decision, ALJ Yoder found there were no valid pulmonary function tests completed
prior to the date last insured supporting a finding that Plaintiff met or medically equaled Listing
3.02. ALJ Yoder placed considerable weight in formulating this opinion on the testimony of Dr.
Holan, noting Dr. Holan’s opinion was consistent with the medical evidence of record showing
Plaintiff does not meet or medically equal Section 3.02 of the Listing of Impairments. ALJ Yoder
also indicated that Dr. Holan had the opportunity to review the entire record, hear testimony,
answer questions from the ALJ, and answer questions from Plaintiff’s counsel.
Plaintiff asserts ALJ Yoder misconstrued Dr. Holan’s testimony and the gap in treatment.

In particular, Plaintiff notes that ALJ Yoder asked Dr. Holan to consider whether Plaintiff had
improved some time “in the middle of” the March 1993 testing and the August 2010 testing, and
then declined again (Tr. 2291). Plaintiff asserts Dr. Holan opined that Plaintiff would have shown
“steady improvement,” meaning the March 1993 results were the “nadir” of Plaintiff’s pulmonary
function between the March 1993 test and the August 2010 test (Tr. 2291). Dr. Holan’s testimony
on this is not quite as clear as Plaintiff makes it seem. In response to questioning regarding
Plaintiff’s possible improvement between March 1993 and August 2010, Dr. Holan testified that
Plaintiff “probably would’ve shown some improvement, but it would’ve been steady

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improvement.” This statement is inartful and suffers from inconsistencies contained therein.
Thus, the Court cannot find this statement supports a finding that Plaintiff met or equaled the
Listing requirements of 3.02 at the relevant time. Indeed, the evidence clearly establishes there
were no acceptable pulmonary test results while Plaintiff was medically stable during the relevant
time that showed he met Listing 3.02. Moreover, when asked whether Plaintiff would have

equaled the relevant listing, Dr. Holan testified that the March 1993 values were “slightly falsely
low” (Tr. 2293). ALJ Yoder specifically considered this statement in rendering his opinion (Tr.
2234).
With regard to Dr. Golub’s opinion that Plaintiff’s breathing impairment equaled the listing
at 3.02, noting that “[p]ost incident [Plaintiff] had clinical manifestations of compromised
pulmonary function with a requirement for supplemental oxygen/oxygen desaturation which
would be expected to remain permanent,” the Court finds ALJ Yoder adequately explained why
he gave such opinion little weight. Indeed, ALJ Yoder indicated that Dr. Golub’s opinion was
faulty insofar as he explicitly based his opinion on Plaintiff’s current use of supplemental oxygen,

which occurred nearly 20 years after the relevant period of adjudication, and that said opinion was
inconsistent with earlier medical records indicating Plaintiff had only mild dyspnea on exertion
and no major active health problems (Tr. 2244).
Plaintiff also argues the ALJ erred in failing to find he was disabled due to absenteeism
caused by his exposure to weather that was either humid, hot, or below freezing. Plaintiff asserts
that his testimony, along with the testimony of Dr. Holan and the VE support the finding that
Plaintiff is not able to perform substantial gainful activity based on the ALJ’s RFC determination.
In support of this argument, Plaintiff cites the National Weather Service and the days in

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Springfield, Illinois on which the temperature or humidity, or both, would cause Plaintiff to miss
work. Plaintiff asserts his tolerance for leaving his home would be about 5 out of 7 days, and
cause him to exceed employer absentee tolerance.
Defendant asserts absenteeism is not dispositive evidence of disability, particularly when,
as here, Plaintiff has failed to link his conditions to a work-preclusive level of absenteeism. In

support of this argument, Defendant asserts the only evidence Plaintiff cites to support his
argument of work-preclusive absenteeism is his own testimony. Defendant argues Plaintiff has
failed to cite any objective medical evidence or medical source opinion evidence linking his
pulmonary impairments to an inability to go to work on days when the temperature was humid,
hot, or cold.
Plaintiff testified that hot, humid, and cold weather make breathing difficult. Plaintiff
further testified that he could not leave his house on days when it was very hot, very cold, or humid.
Dr. Holan also testified that Plaintiff would need to avoid all exposure to temperature extremes of
heat and cold, as well as humidity, as these conditions would have a “significantly deleterious

effect on his pulmonary function” (Tr. 2294-96). In consideration of Plaintiff’s ability to perform
sedentary work, ALJ Yoder indicated that Plaintiff must avoid all exposure to humidity and
temperature extremes such as heat and cold. These limitations were considered in the vocational
expert’s opinion wherein he indicated there were jobs in the national economy that would be
available to someone with Plaintiff’s limitations. While the vocational expert indicated that these
jobs would no longer be available if an individual were to be absent from the workplace two times
per month, Plaintiff has not set forth any objective evidence that he would be unable to attend work
at least two times per month due to his condition. Moreover, the ALJ noted there was evidence

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Plaintiff was able to spend time outside in a hot climate with humidity, and Plaintiff’s testimony
to the contrary conflicted with objective evidence in the record.
Conclusion
After careful review of the record as a whole, the Court is convinced that the ALJ
committed no errors of law, and that his findings are supported by substantial evidence.

Accordingly, the final decision of the Commissioner of Social Security denying Plaintiff’s
application for disability benefits is AFFIRMED.
The Clerk of Court is directed to enter judgment in favor of Defendant.
IT IS SO ORDERED.
DATED: May 7, 2021

s/ Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10153620. Public record. Not legal advice.