Greer v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

ROSS D. G.,1 )

)

Plaintiff, )

)

vs. ) Case No. 3:20-CV-00274-MAB

)

ANDREW SAUL, COMMISSIONER OF )

SOCIAL SECURITY, )

)

Defendant.

MEMORANDUM AND ORDER

BEATTY, 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. § 423.2

Procedural History

Plaintiff protectively filed a Title II application for disability insurance benefits,

alleging disability beginning on June 29, 2015 (Tr. 13, 163). Plaintiff’s claim was initially

denied on April 27, 2016 and then again, upon reconsideration, on March 6, 2017 (Tr. 13).

Plaintiff filed a written request for a hearing on May 2, 2017, and a hearing was held on

November 20, 2018. Plaintiff was represented by counsel at this hearing (Tr. 13). After

1 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 This case was assigned to the undersigned for final disposition upon consent of the parties pursuant to

28 U.S.C. §636(c) (See Doc. 10).

holding the evidentiary hearing, ALJ Jason Panek denied the application on February 21,

2019 (Tr. 27). The Appeals Council denied review, and the decision of the ALJ became the

final agency decision (Tr. 1-6). Administrative remedies have been exhausted and a

timely complaint was filed in this Court.

Issues Raised by Plaintiff

Plaintiff raises the following issue:

1. The ALJ failed to sufficiently examine the medical records in

formulating Plaintiff’s residual functional capacity and then did not

properly consider Step 5 of his analysis, as the residual functional

capacity does not match the jobs found to be appropriate for Plaintiff

by the ALJ and VE.

Applicable Legal Standards

To qualify for DIB or SSI, a claimant must be disabled within the meaning of the

applicable statutes.3 Under the Social Security Act, a person is disabled if she 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 claimant is disabled, the ALJ considers the following five

questions in order: (1) Is the claimant presently unemployed? (2) Does the claimant have

3 The statutes and regulations pertaining to DIB are found at 42 U.S.C. § 423, et seq., and 20 C.F.R. pt. 404.

The statutes and regulations pertaining to SSI are found at 42 U.S.C. §§ 1382 and 1382c, et seq., and 20 C.F.R.

pt. 416. As is relevant to this case, the DIB and SSI statutes are identical. Furthermore, 20 C.F.R. § 416.925

detailing medical considerations relevant to an SSI claim, relies on 20 C.F.R. Pt. 404, Subpt. P, the DIB

regulations. Most citations herein are to the DIB regulations out of convenience.

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 claimant unable to perform

his former occupation? and (5) Is the claimant unable to perform any other work? See 20

C.F.R. § 404.1520.

An affirmative answer at either step 3 or step 5 leads to a finding that the claimant

is disabled. A negative answer at any step, other than at step 3, precludes a finding of

disability. The claimant bears the burden of proof at steps 1–4. Once the claimant shows

an inability to perform past work, the burden then shifts to the Commissioner to show

the claimant’s ability to engage in other work existing in significant numbers in the

national economy. Zurawski v. Halter, 245 F.3d 881, 886 (7th Cir. 2001).

It is important to recognize that the scope of judicial 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). Accordingly, this Court is not tasked

with determining whether or not 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).

The Supreme Court defines substantial evidence as “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 (7th Cir. 2010), and cases cited therein.

The Decision of the ALJ

The ALJ followed the five-step analytical framework described above. He.

determined that Plaintiff had not worked at the level of substantial gainful activity since

the alleged onset date of June 29, 2015 (Tr. 15).

The ALJ found that, beginning on the alleged onset date, Plaintiff had severe

impairments of residuals of a cerebrovascular accident (CVA), coronary artery disease,

obesity, neurocognitive disorder, major depressive disorder, and generalized anxiety

disorder, which did not meet or equal a listed impairment outlined in 20 C.F.R. Part 404,

Subpart P, Appendix 1 (20 C.F.R. §404.1520(d), §404.1525, and §404.1526) (Tr. 15).

The ALJ found that Plaintiff had non-severe impairments as well, including a

fractured skull/head trauma in addition to a brain tumor that occurred in August 2008,

prior to Plaintiff’s alleged disability onset date (Tr. 15-16). Plaintiff also has restless leg

syndrome; however, the ALJ determined that this was a non-severe condition, as no

treating source determined that this condition caused functional limitations (Tr. 16).

Similarly, while Plaintiff described experiencing migraines, no treating source

determined that they caused Plaintiff functional limitations, so the ALJ determined these

migraines to be non-severe The ALJ determined the following conditions were also non-

severe, as no treating sources determined that they caused Plaintiff functional limitations:

left cubital tunnel syndrome, carpal tunnel syndrome, De Quervain tenosynovitis,

hypertension, stage III kidney disease, and vision and speaking difficulties (Tr. 17).

At step four, the ALJ found that 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 C.F.R. §404.1520(d). The ALJ considered Plaintiff’s obesity, both

singly and in combination with his other impairments, in determining whether he had

medically determinable severe impairments, as required by SSR 02-1p (Tr. 17). The ALJ

determined that the record did not support finding that Plaintiff’s obesity met the listing

criteria (Tr. 18). The ALJ found similarly for Plaintiff’s mental impairments as well (Tr.

18).

The ALJ found that Plaintiff had the residual functional capacity (RFC) to perform

sedentary work as defined in 20 CFR §404.1567(a) with the following limitations:

No climbing of ladders, ropes, or scaffolds; no more than occasional

climbing of ramps or stairs, balancing stooping, kneeling, crouching, or

crawling; and must avoid all exposure to hazards, unprotected heights, and

dangerous moving machinery. Plaintiff can understand and remember

simple instructions, can attend to and carry out routine and repetitive tasks,

but not at a production rate pace (such as that involved in assembly line

work). Finally, Plaintiff can occasionally interact wit the public and

coworkers.

(Tr. 19).

Based on the testimony of a vocational expert (“VE”) and the Dictionary of

Occupational Titles (DOT), the ALJ found that plaintiff was unable to perform his past

work, including that of forklift operator (DOT 921.683-050; medium exertion level with

an SVP of 3), cook (DOT 313.374-010; medium exertion level with an SVP of 5), and

welder (DOT 810.384-014; heavy exertional level with an SVP of 5) (Tr. 26). Also based on

the VE’s testimony, the ALJ determined that Plaintiff was not disabled because there are

jobs that exist in significant numbers in the national economy that the claimant can

perform (Tr. 26). Specifically, the vocational expert determined that Plaintiff could

perform the requirements of a hand packer position; a production worker; and an

inspector tester sorter position (Tr. 27).

The Evidentiary Record

The Court has reviewed and considered the entire evidentiary record in preparing

this Memorandum and Order. The following summary of the record is directed to the

points and factual allegations raised by Plaintiff and not, necessarily, reflective of the

entire record, as Plaintiff has numerous ailments, many of which are not at issue in the

present matter.

1. Evidentiary Hearing

Plaintiff was represented by an attorney at the evidentiary hearing in November

2018. A vocational expert (“VE”) listened to his testimony (Tr . 35; 54).

At the time of the hearing, Plaintiff was 48-years old and lived with his girlfriend

in a house in East Alton, Illinois (Tr. 39). Plaintiff graduated from high school and

completed 40 out of 60 weeks of vocational training after high school back in 1999 (Tr.

40). Plaintiff testified that he had not driven a car for approximately eight months prior

to the hearing (Tr. 39-40). He stopped driving because he would be “all over the road”

and scared his girlfriend (Tr. 40). Plaintiff testified that he received food stamps as

assistance since he was not working (Tr. 41). Plaintiff has two children with his ex-wife

who visit Plaintiff, as they live full-time with his ex-wife (Tr. 42).

Plaintiff testified that he stopped working in June 2015 as a forklift operator (Tr.

40). He ultimately left the job because he got into an accident and was afraid of causing

further accidents (hurting himself or others) due to his low blood pressure (Tr. 41).

Plaintiff further explained that at the time, he was taking five blood pressure medications,

but has since resolved any issues with his blood pressure (Tr. 41). He testified that he lost

consciousness once due to a dip in blood pressure and had to spend three days in the

hospital (Tr. 41).

The ALJ questioned Plaintiff further about his prior work. Plaintiff explained that

as a forklift driver, he would wrap grain and take pallets to trucks for shipping (Tr. 42-

43). At that time, Plaintiff was lifting up to 50 lb. boxes (Tr. 43). Prior to being a forklift

driver, Plaintiff worked as a cook at a restaurant and was required to empty fryer grease

twice a week that weighed approximately 50 lbs. (Tr. 43). And prior to his time as a cook,

Plaintiff was a playground builder, which required welding (Tr. 44). Plaintiff described

that he was on his feet for twelve hours a day with that job and had to lift 100 lb. jigs with

the help of another worker (Tr. 44).

Plaintiff testified that the main ailment that has prevented him from working since

June 2015 is his migraines (Tr. 44-45). Plaintiff explained that Dr. Sherwood treats him for

migraines currently, although he previously saw Dr. Lieu (who gave Plaintiff Botox

injections to treat his migraines) (Tr. 45). Plaintiff testified that he last received Botox

injections for his migraines about a year before the hearing in September 2017 (Tr. 45).

The Botox injections reduced the frequency of Plaintiff’s migraines, but did not eliminate

them completely (Tr. 45-46). Prior to getting Botox, Plaintiff testified he was having

approximately 6-7 migraines per week with intense pain (Tr. 46). Plaintiff described that

when he has migraines, the pain is “so intense that [he] almost get[s] sick” and they last

for two to three hours (Tr. 46). At the time of the hearing, despite not having had Botox

injections in over a year, Plaintiff testified that he had migraines three to four times a

week. Prior to Botox, Plaintiff also tried taking medications, including methocarbamol,

but nothing really helped (Tr. 46).

Plaintiff also testified that he was still struggling due to the stroke he had in 2014.

He explained that he experiences numbness above his left knee to his toes and then from

his elbow to his fingertips as if the extremities were asleep (Tr. 47). Because of the

numbness and lack of sensation, Plaintiff explained he has trouble holding things in his

left hand. For example, if he is smoking a cigar, it will sometimes just fall to the floor out

of his hand (Tr. 47). Plaintiff testified that he needs help buttoning buttons. Prior to the

hearing, Plaintiff explained that he asked his girlfriend to help button his pants because

he did not have the strength to do it, but this is not something he has to ask her to do

daily (Tr. 48). The ALJ questioned Plaintiff, stating that some of the medical records

indicate that the numbness and weakness in his hands and arms has gotten better over

time, but Plaintiff countered, stating that he never told his doctors that this issue

improved (Tr. 48). Plaintiff walks with a cane, and explained that he had been using one

for over a year prior to the hearing, as prescribed by one of his doctors (Tr. 49). He uses

the cane for his dizzy spells to help catch him from falling, as his equilibrium was

impacted by the stroke (Tr. 49).

Plaintiff’s attorney also questioned him, asking him to describe how his report of

chest pains impacted him. Plaintiff explained that he has chest pains that are “so bad”

that he has to lay down (Tr. 49-50). He takes a nitroglycerin pill once a month for the pain

(Tr. 50). He testified he has these intense chest pains every day and even walking to the

bathroom makes it difficult for him to breathe (Tr. 50). Basically, any time Plaintiff gets

up from a reclining position to do anything, he experiences shortness of breath and chest

pains (Tr. 50). While he testified that he was taking pain medication for these issues, they

were not effective in treating the pain, although he does get some relief from the

nitroglycerin pills (Tr. 50).

Plaintiff also testified that he has residual cognitive issues from the stroke. He has

trouble remembering things and understanding what people say (Tr. 50-51). Plaintiff

further explained that approximately two to three days a week, his girlfriend has to

explain something over and over again to him because he cannot understand what she

originally said (Tr. 51). A typical day in Plaintiff’s life starts with Plaintiff limping to the

living room from his bed, where he sits or lays down because he doesn’t feel well (Tr. 51).

If he is having a migraine, he sits in the dark and/or watches television with the volume

down (Tr. 51). He does not do any chores around the house or shop for groceries (Tr. 51).

After Plaintiff’s testimony, the ALJ questioned the VE, asking him first to identify

any inconsistencies with his testimony and the information contained in the Dictionary

of Occupational Titles as he testifies, to which the VE agreed (Tr. 52). The VE explained

that Plaintiff’s prior work of a forklift driver (DOT 921.683-050) had a medium exertional

level and was a semi-skilled job, with an SVP of 34 (Tr. 53). Plaintiff’s job as a cook (DOT

313.374-010) also had a medium exertional level and was a skilled job, with an SVP of 5.

As a welder (DOT 811.684-014), Plaintiff had a heavy exertional level and an SVP of 5

since it was a skilled job (Tr. 52-53). The ALJ then asked the VE the hypothetical question,

assessing “a younger individual” with at least a high school education and work

consistent with Plaintiff’s history. This hypothetical person would be limited to a light

range of work (including no climbing ladders, ropes, or scaffolds, for example) and

would need to avoid all exposure to hazards, among other things (Tr. 54). The VE testified

that this person could not perform Plaintiff’s prior work, as his prior work was all above

a medium exertional level, ranges from semi-skilled to skilled, and all had exposures of

hazards (Tr. 54). But, the VE testified that there are some jobs that this person could do in

the national economy, such as a light unskilled cleaner position (Tr. 54). The ALJ then

limited the hypothecial person to sedentary tasks and explained that this person would

be required to use a cane when ambulating, and asked the VE to explain if there were any

jobs for this hypothetical person. The VE explained there are some sedentary unskilled

positions, like that of an unskilled inspector tester sorter, which have approximately

12,000 positions nationally (Tr. 55).

Plaintiff’s attorney then questioned the VE, asking if there would be any effect on

the job if this hypothetical person needed to be redirected six times per day (Tr. 56).

4 A job with an SVP level of 1-2 are unskilled while those rated 3-4 are semiskilled. Anything rated a 5 or

higher is considered skilled. See here DI 25001.001 Medical and Vocational Quick Reference Guide,

https://secure.ssa.gov/poms.nsf/lnx/0425001001 (last accessed September 22, 2021).

Plaintiff’s counsel also asked whether an individual who needed to be redirected six

times per day or is off-task 15% or more of the day due to their impairments would be

able to perform the jobs previously outlined as appropriate by the VE (Tr. 56). The VE

responded that this behavior might be appropriate during the training or probation

period, but could result in termination after that (Tr. 56). Similarly, Plaintiff’s counsel

asked whether an individual who had to miss more than one day per month could

maintain the employment outlined by the VE, and the VE admitted it would result in

termination if the individual had to miss more than one or two days in a given month

(Tr. 56). The VE explained that the job numbers he cited in his testimony came from the

Occupational Employment Quarterly as well (Tr. 57).

2. Relevant Medical Records

Plaintiff submitted medical records to aid the ALJ in his decision. After Plaintiff’s

stroke, on August 28, 2015, Plaintiff had an EMG and nerve conduction study done,

which resulted in abnormal results (Tr. 548). The test showed that Plaintiff had moderate

left median sensory entrapment neuropathy at the flexor retinaculum, also known as

carpal tunnel5 (Tr. 548).

On January 28, 2016, Plaintiff underwent a surgery to attempt to help his

symptoms related to carpal tunnel. The surgery involved a left cubital tunnel release at

the elbow; De Quervain release at the wrist; release of the first dorsal compartment hood;

5 MAYO CLINIC, Carpal Tunnel Syndrome, available at https://www.mayoclinic.org/diseases-

conditions/carpal-tunnel-syndrome/symptoms-causes/syc-20355603 (last visited September 24, 2021).

and left open carpal tunnel release6 (Tr. 398-400). Although this surgery was intended to

relieve some of Plaintiff’s symptoms, the medical records indicate that he continued to

have numbness in his left hand and arm.

On February 29, 2016, Plaintiff went to see his treating neurologist, Dr. Michael

Liu, M.D., who diagnosed Plaintiff with paresthesia7 and prescribed him gabapentin (Tr.

418-419). In these records, Plaintiff reported that the carpal tunnel syndrome release

surgery helped the tingling in his hand, but not the arm and lower extremity (Tr. 419).

Plaintiff returned to Dr. Liu on May 2, 2017 to be assessed for paresthesia of skin

(Tr. 667). In these medical records, Dr. Liu confirms that he reviewed Plaintiff’s MRI

(dated April 8, 2014), which revealed that Plaintiff had two small acute strokes over the

right thalamus (Tr. 667). Plaintiff was still on gabapentin at this time, and reported having

chronic migraines (5-6 times a week) (Tr. 667-668). Dr. Liu recorded that he last saw

Plaintiff on May 31, 2016, so approximately one year prior, as Plaintiff “did not show up

for follow-up” (Tr. 668). The notes also indicate that Plaintiff still has tingling numbness

over the bilateral upper extremities from the elbow down to his hands, as well as in both

lower extremities from both feet up to distal legs (Tr. 668). Plaintiff reported that the

January 2016 surgery “did not help” (Tr. 668).

6 This surgery appears to have involved a series of tendon releases to alleviate pressure, numbness, and

pain. See MAYO CLINIC, De Quervain’s tenosynovitis: Diagnosis and Treatment, available at

https://www.mayoclinic.org/diseases-conditions/de-quervains-tenosynovitis/diagnosis-

treatment/drc-20371337 (last visited September 24, 2021).

7 Paresthesia is a crawling, numbness, tingling, or itching sensation on a person’s skin. See HEALTHLINE,

What is Paresthesia?, available at https://www.healthline.com/health/paresthesia (last visited on

September 24, 2021.

Plaintiff was seen on June 13, 2017 by his primary care physician, Dr. Sambasivam

Suthan, M.D., (“Dr. Sam”), for complaints of feeling lightheaded (Tr. 633-635). Dr. Sam

recorded that Plaintiff has a history of cerebrovascular accident from April 2014 and

detailed that some left hemiparesis mild residual effects are still present (Tr. 636). Plaintiff

requested a cane, which Dr. Sam prescribed to support Plaintiff’s gait (Tr. 636).

Plaintiff was seen again by Dr. Sam on August 14, 2017, December 14, 2017, April

5, 2018, and July 19, 2018 (Tr. 631, 626, 621, 617). At these appointments, Dr. Sam detailed

that Plaintiff had some weakness on the left side of his body. On September 22, 2017,

while seeing Dr. Liu, Plaintiff reported that he had continued tingling numbness in both

hands and feet (Tr. 677).

3. State Agency Consultants’ Opinions

On April 14, 2016, Dr. Raymond Leung, M.D., performed a consultative evaluation

(“CE”) at the request and expense of Defendant. Dr. Leung recorded that Plaintiff has a

history of stroke, brain tumor, and currently has a lack of sensation in his left foot and

left arm (Tr. 407). At the time, Plaintiff did not use a cane and reported being right handed

(Tr. 407). Dr. Leung observed Plaintiff and reported that his left pinch, grip, arm, and leg

strength was at a 4+ out of 5; however, Plaintiff did have decreased sensation to light

touch in the left third through fifth fingers (Tr. 409). Plaintiff was able to pick up a penny

from the table with both hands fairly well (Tr. 408). Additionally, Dr. Leung reported

Plaintiff could “manipulate a small object with his hands fairly well” (Tr. 409).

Analysis

In this appeal, Plaintiff advances two central arguments in support of his

contention that remand is appropriate, both of which are related to Plaintiff’s Residual

Functional Capacity (“RFC”). First, Plaintiff argues that the ALJ failed to sufficiently

engage with the medical records in determining that Plaintiff could engage in the jobs of

nut sorter, ampoule sealer, and compact sealer, as Plaintiff’s medical records clearly

indicate issues with mobility, particularly on his left side, that preclude him from being

able to do these jobs (Doc. 21, p. 6). Second, Plaintiff argues that these three job

descriptions, on their face, do not meet the requirements of Plaintiff’s RFC assessment

(Id. at p. 3).

The RFC is a measure of what an individual can do despite her limitations. Young

v. Barnhart, 362 F.3d 995, 1000–01 (7th Cir. 2004); 20 C.F.R. §§ 404.1545(a), 416.945(a). The

determination of a claimant's RFC is a legal decision rather than a medical one. Diaz v.

Chater, 55 F.3d 300, 306 n.2 (7th Cir. 1995); see also Thomas v. Colvin, 745 F.3d 802, 808 (7th

Cir. 2014). “RFC is an assessment of an individual's ability to do sustained work-related

physical and mental activities in a work setting on a regular and continuing basis. A

‘regular and continuing’ basis means 8 hours a day, for 5 days a week, or an equivalent

work schedule.” SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996). “The RFC assessment is

a function-by-function assessment based upon all of the relevant evidence of an

individual's ability to do work-related activities.” Id. at *3.

While Plaintiff has a number of severe impairments (e.g., residuals of

cerebrovascular accident, coronary artery disease, obesity, neurocognitive disorder,

major depressive disorder, and generalized anxiety disorder) and Plaintiff himself

identified migraines as his biggest impediment to working during the hearing (Tr. 44-45),

Plaintiff’s arguments at this stage rest on issues with his mobility on his left side resulting

from his stroke, which occurred in 2014. As such, the Court will solely focus its

examination on this issue.

First, Plaintiff argues remand is appropriate because the ALJ did not engage

sufficiently with the medical records to find that Plaintiff has more limited strength and

mobility as a result of his stroke. Because of this, Plaintiff argues the ALJ improperly

constructed his RFC and incorrectly determined that he could do the jobs of nut sorter,

ampoule sealer, and compact assembler. Plaintiff points to portions of the medical

records he argues show his limitations with mobility and sensation on his left side.

Plaintiff argues these limitations preclude him from being able to do any of these three

jobs because they require grip strength and dexterity that Plaintiff does not possess.

As an initial matter, the three jobs determined by the ALJ and VE as appropriate

for Plaintiff during the hearing are as follows:

1. Hand piper or ampoule sealer (DOT 559.687-014)—seals ampoules filled

with liquid drug products, preparatory to packaging: Rotates neck of

ampoule in flame of Bunsen burner to melt glass. Grips tip of ampoule,

using tweezers, and draws tip away from neck to seal ampoule as glass

hardens. Places sealed ampoule in basket for sterilization and inspection.

May hold unsealed ampoule against jet of inert gas to displace air. May

immerse sealed ampoules in dye bath to test for leaks. May tend machines

that steam-wash and fill ampoules.

2. Nut sorter, inspector, or tester (DOT 521.687-086)—removes defective nuts

and foreign matter from bulk nut meats: Observes nut meats on conveyor

belt, and picks out broken, shriveled, or wormy nuts and foreign matter,

such as leaves and rocks. Places defective nuts and foreign matter into

containers. May be designated according to kind of nut meat sorted as

Almond sorter (can. & preserv.); Peanut Sorter (can. & preserv.).

3. Production worker or compact assembler (DOT 739.687-066)—Joins upper

and lower halves of vanity compacts: Inserts pins in hinges to join halves,

using fingers or tweezers. Attaches spring catch lock by pressing it into

place with pinching tool. Fits mirror on inside of cover.

Plaintiff contends these three jobs require “far more precision, concentration, and

pinch strength than Plaintiff is reasonably capable of performing” (Doc. 21, p. 5). As

support, Plaintiff cites to portions of the medical record, in which his neurologist and

primary care physician recorded that Plaintiff still experienced numbness and tingling in

his left hand and arm after his January 28, 2016 surgery for carpal tunnel syndrome. See.,

e.g., Tr. 548, 398, 420, 408. Plaintiff is correct that medical professionals indicated that he

still possessed some weakness on the left side of his body (Doc. 21, p. 7, citing to Tr. 631,

626, 621, and 617). Plaintiff argues that the ALJ improperly relied on a consultative

examiner, Dr. Leung, and his report finding that Plaintiff was able to manipulate small

objects with his hands “fairly well,” which Plaintiff argues is inconsistent with the record

overall (Tr. 409).

While at first blush, the ALJ determined that “no treating source opined that the

claimant has functional limitations with fine motor at the left upper left extremity,” he

then expounded on and supported this statement, spending three, single-spaced

paragraphs discussing the medical records and lack of support for Plaintiff’s contention

that he significantly struggles with mobility on his left side (Tr. 17, 21-22). For example,

the ALJ points to records of Plaintiff’s primary care physician and neurology exams that

indicate Plaintiff, despite experiencing numbness, retains strength and mobility in both

his right and left hands both before and after his January 28, 2016 surgery.

More specifically, the ALJ summarized Plaintiff’s August 11, 2015 visit to his

primary care physician, Dr. Sam, during which Plaintiff denied dropping things despite

experiencing some numbness (Tr. 311). The ALJ further summarized this medical note in

his decision, relying on Dr. Sam’s report that Plaintiff’s motor strength and tone were

“normal” (Tr. 314). The ALJ cited to Plaintiff’s neurology examinations in May 2016 and

May 2017, which indicated that Plaintiff had 5 out of 5 motor strength and normal

sensation (Tr. 420, 619). The ALJ also cited to records indicating that Plaintiff’s neurologist

reported that he had residual left-sided weakness from a stroke, but “no gross sensory or

motor deficits noted at this time” in November 2014 (Tr. 340-341). The Court notes that

this medical record does indicate, however, that Plaintiff had decreased motor strength

on the left side (Tr. 340-341). The ALJ also points to a note from a May 31, 2016 visit to

Dr. Sam, in which he recorded that Plaintiff is still experiencing tingling and numbness

of the left side, but there are no abnormal movements or tenderness (Tr. 414-416).

Similarly, the ALJ points to another Dr. Sam record from May 2, 2017 in which Dr. Sam

records that Plaintiff is still experiencing left side numbness, but that his bulk motor skills

are normal, with normal tone, and his strength is 5/5 with no abnormal movement (Tr.

668-669). Contrary to what Plaintiff argues, the ALJ determined that the consultative

examiner’s findings that Plaintiff has a slight reduction in strength and sensation was not

represented in his medical records and was, therefore, inaccurate (Tr. 21; 409). If the ALJ’s

findings were conclusory and failed to address the record as a whole, remand would be

proper. Pamela K.S. v. Comm’r of Soc. Sec., No. 19-cv-1112-RJD, 2020 WL 4040908, at *10

(S.D.Ill. July 17, 2020) (citing Moore, 743 F.3d at 1121-22). But that is not the case here. In

fact, the ALJ went through a significant portion of the medical records, summarizing

them in his report, to find that overall, they indicate that Plaintiff has not lost as much

strength and dexterity as Plaintiff described during his testimony.

Plaintiff’s first argument is little more than an invitation for this Court to reweigh

the evidence. He has not identified any error requiring remand. Even if reasonable minds

could differ as to whether Plaintiff was disabled at the relevant time, the ALJ’s decision

must be affirmed if it is supported by substantial evidence, and the Court cannot

substitute its judgment for that of the ALJ in reviewing for substantial evidence.

Burmester, 920 F.3d at 510; Shideler v. Astrue, 688 F.3d 306, 310 (7th Cir. 2012). The ALJ

examined both Plaintiff’s own medical provider’s notes, as well as the notes from the

consultative examination, and assessed how they were consistent with and supported by

the record overall. An ALJ’s decision must be supported by substantial evidence, and the

ALJ’s discussion of the evidence must be sufficient to “provide a ‘logical bridge’ between

the evidence and his conclusions.” Terry v. Astrue, 580 F.3d 471, 475 (7th Cir. 2009)

(internal citations omitted). The ALJ did that here in determining that while Plaintiff may

experience numbness, the record as a whole indicates he has retained strength in his left

side.

While Plaintiff’s first argument was unsuccessful, his second argument gains a bit

more traction. Plaintiff argues that because the ALJ determined in his RFC that he must

“avoid all exposure to hazards, unprotected heights, and dangerous moving machinery,”

the three jobs outlined for Plaintiff by the ALJ and VE are inappropriate on their face and

support remand. For example, as a nut sorter, Plaintiff would have to “observe[] nut

meats on a conveyor belt, and pick[] out broken, shriveled, wormy nuts” (Doc. 21, p. 4).

Plaintiff argues that working around a conveyer belt means he cannot avoid “dangerous

moving machinery,” as outlined by his RFC. Defendant disagrees, and argues that

Plaintiff simply failed to read the entire description of the jobs, because if he had, he

would see that the descriptions themselves state he will not be exposed to machinery.

Additionally, Defendant argues that Plaintiff failed to challenge the VE’s testimony at the

time of the hearing, and, therefore, cannot advance that argument now. The Court agrees

with Plaintiff and this case will be remanded.

At step five of the sequential evaluation process for determining disability, the

Commissioner must establish “that the claimant can perform other work that exists in

significant numbers in the national economy.” Overman v. Astrue, 546 F.3d 456, 464 (7th

Cir. 2008 (internal quotations omitted). As part of this inquiry, the ALJ must comply with

SSR 00-4p,8 which clarifies the standards for using evidence from VEs in disability

proceedings. See Prochaska v. Barnhart, 454 F.3d 731, 735–36 (7th Cir. 2006) (discussing an

ALJ's duties under SSR 00-4p as part of the step-five inquiry); SSR 00-4p, at *1–2. Under

SSR 00-4p, an ALJ must affirmatively (1) ask if a VE's evidence “conflicts with

information provided in the DOT” before using that evidence to find a claimant not

disabled; and (2) “investigate and resolve any apparent conflict between the VE's

testimony and the DOT” by obtaining “reasonable explanations for the

conflict.” Overman, 546 F.3d at 462–63 (internal quotations omitted); Weatherbee v. Astrue,

8 See SSA POLICY INTERPRETATION RULING, available at

https://www.ssa.gov/OP_Home/rulings/di/02/SSR2000-04-di-02.html (last accessed September 24,

2021).

649 F.3d 565, 570 (7th Cir. 2011). These affirmative obligations apply regardless of

whether a claimant identifies the alleged conflict at the hearing.

See Overman, 546 F.3d at 463 (a claimant does not forfeit an SSR 00-4p argument by failing

to raise it at the administrative level).

Defendant is correct that in his cited description of ampoule sealer, nut sorter, and

compact assembler, the jobs list (after the main descriptions) that “moving mech. parts:

not present—activity or condition does not exist.”9 SSR 00-4p only requires the ALJ to

obtain explanations for apparent conflicts, i.e., those conflicts that are “so obvious that

the ALJ should have picked up on [them] without any assistance.” Mitchell v. Berryhill,

No. 17 C 6241, 2019 WL 426149, at *6 (N.D. Ill. Feb. 4, 2019) (internal citations omitted).

Plaintiff was represented by counsel and he is presumed to have put forth her best case

for benefits at the hearing. Skinner v. Astrue, 478 F.3d 836, 842 (7th Cir. 2007). Plaintiff’s

counsel did not object to the VE’s testimony or point out that these three job descriptions

were inconsistent with Plaintiff’s RFC.10 Additionally, the ALJ explicitly asked the VE to

9 See DOT 559.687-014: Ampoule Sealer, 1991 WL 683782 (4th Ed. 1991); DOT 521.687-086: Nut Sorter,

1991 WL 674226 (4th Ed. 1991); and DOT 739.687-066: Compact Sealer, 1991 WL 680189 (4th Ed. 1991).

These jobs descriptions do not include the “moving mech. parts: not present” language on the

Department of Labor’s website. See OALJ LAW LIBRARY, DOT, Processing Occupations 558.485-010 to

570.683-010, available at https://www.dol.gov/agencies/oalj/PUBLIC/DOT/REFERENCES/DOT05F

(last accessed September 27, 2021); OALJ LAW LIBRARY, DOT, Processing Occupations 519.585-018 to

522.685-094, available at https://www.dol.gov/agencies/oalj/PUBLIC/DOT/REFERENCES/DOT05B

(last accessed September 27, 2021); OALJ LAW LIBRARY, DOT Benchwork Occupations 737.381-010 to

761.684-101, available at https://www.dol.gov/agencies/oalj/PUBLIC/DOT/REFERENCES/DOT07D

(last accessed September 27, 2021).

10 Plaintiff is represented by a different attorney in this Court.

identify portions of his testimony and findings that were inconsistent with the DOT, and

the VE testified that his testimony was consistent (Tr. 52).11

Because Plaintiff did not object at the hearing, he “now has to argue that the

conflicts were obvious enough that the ALJ should have picked up on them without any

assistance, for SSR-00-4p requires only that the ALJ investigate and resolve apparent

conflicts between the VE’s evidence and the DOT.” Overman v. Astrue, 546 F.3d 456, 463

(7th Cir. 2008) (citing Prochaska v. Barnhart, 454 F.3d 731, 735 (7th Cir. 2006))(emphasis in

original). Here, the error is so apparent that the ALJ should have picked up on the

discrepancy without assistance.

The ALJ determined the RFC, including the provision that Plaintiff must avoid all

hazards, unprotected heights, and dangerous moving machinery. Additionally, the ALJ

determined that Plaintiff cannot perform at a production rate pace “such as that involved

in assembly line work” (Tr. 19). The description of nut sorter includes that Plaintiff would

be working on a conveyer belt. Since the RFC explicitly states that Plaintiff must avoid

“dangerous moving machinery,” the Court cannot say that a conveyer belt is not

dangerous moving machinery, as there is nothing in the record to indicate that it isn’t.

Similarly, the ALJ determined Plaintiff could work with flames in a Bunsen burner to

11 An ALJ may rely on even “purely conclusional” VE testimony that goes unchallenged. Barrett v. Barnhart,

355 F.3d 1065, 1067 (7th Cir.), on reh’g. 368 F.3d 691 (7th Cir. 2004). See also Liskowitz v. Astrue, 559 F.3d 736,

744 (7th Cir. 2009) (“Had [plaintiff] actually objected to the VE’s testimony, the VE could have said

more…As it stands, however, the VEs testimony was both unobjected to and uncontradicted. Thus, the ALJ

was entitled to credit this testimony.”); Donahue v. Barnhart, 279 F.3d 441, 446-47 (7th Cir. 2002) (“When no

one questions the vocational expert’s foundation or reasoning, an ALJ is entitled to accept the vocational

expert’s conclusion.”).

melt glass despite including in his RFC that Plaintiff must avoid “all exposures to

hazards.” These job descriptions appear to contradict Plaintiff’s RFC and account for

34,000 out of the 59,000 jobs determined to be appropriate based on Plaintiff’s skill level

(Tr. 27). As such, remand is proper to resolve the discrepancies between Plaintiff’s RFC

and the ALJ’s selected jobs. See White v. Colvin, No. 1:13-cv-00914-JMS-TAB, 2014 WL

301487 (S.D. Ind. Jan. 28, 2014) (holding that remand was proper when a Plaintiff’s RFC

included avoiding “concentrated exposure to hazards such as…dangerous moving

machinery” and the ALJ and VE determined the Plaintiff could do the jobs of packager

and dishwasher as they exposed him to and required him to use machines).

In sum, while the ALJ certainly did complete a deep dive into the medical records

to determine Plaintiff’s RFC, the ALJ failed to properly resolve discrepancies between

Plaintiff’s RFC and the three jobs identified as appropriate for him by the VE. An ALJ’s

decision must be supported by substantial evidence, and the ALJ’s discussion of the

evidence must be sufficient to “provide a ‘logical bridge’ between the evidence and his

conclusions.” Terry v. Astrue, 580 F.3d 471, 475 (7th Cir. 2009) (internal citations omitted).

Here, the ALJ failed to build the requisite logical bridge between Plaintiff’s prospective

jobs in the national market and his RFC.

The Court wishes to stress that this Memorandum and Order should not be

construed as an indication that the Court believes that Plaintiff was disabled during the

relevant period or that he should be awarded benefits. On the contrary, the Court has

not formed any opinions in that regard and leaves those issues to be determined by the

Commissioner after further proceedings.

Conclusion

The Commissioner’s final decision denying Plaintiff’s application for social

security disability benefits is REVERSED and REMANDED to the Commissioner for

rehearing and reconsideration of the evidence, pursuant to sentence four of 42 U.S.C.

§405(g).

The Clerk of Court is directed to enter judgment in favor of Plaintiff.

IT IS SO ORDERED.

DATED: September 27, 2021

s/ Mark A. Beatty

MARK A. BEATTY

United States Magistrate Judge