# Greer v. Commissioner of Social Security

> District Court, S.D. Illinois · September 27, 2021

URL: https://www.frixlaw.com/law-library/cases/10154326

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** September 27, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10154326

## How later opinions describe it (automated extraction)

- discussing an ALJ's duties under SSR 00-4p as part of the step-five inquiry

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10154326. Public record. Not legal advice.