# Crews v. Commissioner of Social Security

> District Court, S.D. Illinois · July 25, 2022

URL: https://www.frixlaw.com/law-library/cases/10155319

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** July 25, 2022
- **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

DARRIN C.,1

Plaintiff,

v. Case No. 3:21-CV-00012-NJR

COMMISSIONER OF SOCIAL
SECURITY,

Defendant.

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief 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) and
Supplemental Social Security (SSI) benefits pursuant to 42 U.S.C. § 423.
BACKGROUND
Plaintiff previously applied for DIB and SSI on April 5, 2016, alleging a disability
onset beginning of September 17, 2014. (Tr. 111). The previous claims were denied
initially on July 15, 2016, and again on reconsideration on October 17, 2016. On July 5,
2018, a hearing was conducted. (Tr. 37). After holding a hearing, an Administrative Law
Judge (ALJ) denied the first application on November 20, 2018. (Tr. 124). For the first
application, Plaintiff did not timely appeal the denial to the Appeals Council, making it
final and binding. (Tr. 15).

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.
Plaintiff applied a second time for DIB and SSI on November 30, 2018, alleging a
disability onset date of November 30, 2018, and September 17, 2014, with respect to the

SSI claim. (Id.). These claims were denied initially on May 6, 2019, and again on
reconsideration on September 19, 2019. On July 14, 2020, a hearing was conducted.
(Tr. 80). After holding a hearing, an ALJ denied the application on August 3, 2020. (Tr. 21-
29). The Appeals Council denied Plaintiff’s request for review, making the ALJ’s decision
the final agency decision subject to judicial review. (Tr. 1). Accordingly, Plaintiff
exhausted administrative remedies and filed a timely complaint.

ISSUES RAISED BY PLAINTIFF
Plaintiff raises the following issues:
1. The ALJ failed to consider that Plaintiff was prescribed a medical assistive
device.

2. The ALJ used objectively faulty rationale in discounting the medical sources
statement from Plaintiff’s treating source.

3. The ALJ improperly relied upon a prior ALJ decision where the claimant’s
non-attorney representative failed to update the record.

LEGAL STANDARD
To qualify for DIB and SSI, a claimant must be disabled within the meaning of the
applicable statutes. Under the Social Security Act, a person is disabled if he or 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

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 or her 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). 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.
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 raised by Plaintiff.
I. Evidentiary Hearings
Plaintiff was first represented by a non-attorney at the hearing on July 5, 2018.
(Tr. 37). Plaintiff explained he stopped working as a forklift driver because he was laid
off around September 17, 2014—and would have worked the next day if he had not been

laid off. (Tr. 42, 46-47). Plaintiff testified about his back pain, asthma, shoulder pain,
seizures, and sleep apnea (Tr. 53, 62, 66, 67). Besides receiving a spinal cord stimulator
implant on May 23, 2017, Plaintiff did not take medications to address the back pain.
(Tr. 56-59). Plaintiff has problems showering, getting dressed, doing yardwork, and even
sitting because of his back pain. (Tr. 69-71). Plaintiff also explained that he broke his left

humerus bone and dislocated his left shoulder at the age of 14. (Tr. 62). Plaintiff was only
doing physical therapy for his shoulder. (Tr. 64). As for his seizures, he experiences them
every few months after he drinks excessively. (Tr. 66). For Plaintiff’s sleep apnea, he only
slept about two to three hours a night, but he did not use a machine. (Tr. 68, 70-71).
A vocational expert (VE) also testified. The ALJ asked him a hypothetical question
which corresponded to the residual functional capacity (RFC) assessment—would there

be light work for an individual with the same age, education, and work experience as
Plaintiff. (Tr. 74). The VE testified that there are approximately 80,000 unskilled office
helper positions nationally, approximately 120,000 light unskilled routing clerk positions
nationally, and approximately 100,000 light unskilled packer positions nationally.
(Tr. 75). The ALJ also asked the VE about the impact on the ability of the individual to
perform these jobs if an individual can only occasionally reach overhead and behind the

back with the “dominant right upper extremity.” (Tr. 75). The VE testified that this would
reduce the number of jobs to 40,000 for office helper positions, 60,000 for routing clerks,
and 50,000 for packer jobs. (Tr. 76).
At his second hearing, on July 14, 2020, Plaintiff was represented by an attorney.
(Tr. 83). Plaintiff explained that he last worked in March 2020 as a forklift operator.

(Tr. 86). His main issues were his asthma, back, and shoulders. (Tr. 88). During this
hearing, Plaintiff explained that he can be on his feet for about 10 to 15 minutes. (Tr. 89).
There were no additional surgeries or treatment for his back pain. (Tr. 90).
Plaintiff explained that his right shoulder bothers him. (Id.). He testified that he
met with a doctor one time regarding his right shoulder. (Id.). Plaintiff also noted that he

has limited range of motion in both shoulders and is restricted from lifting anything over
10 pounds. (Tr. 91).
Besides his shoulders, Plaintiff explained that he uses a cane because of his back
pain and the pain in his right leg. (Id.). Plaintiff explained that he does not live with
anybody right now because his mother passed away from COVID. (Tr. 93). Without his
mother, he is having trouble keeping up with things. (Id.).

A VE also testified at this hearing. The ALJ asked him a hypothetical question
which corresponded to the RFC assessment—would there be light work for an individual
with the same age, education, and work experience as Plaintiff. (Tr. 96). The VE testified
that there are approximately 3,200 unskilled counter clerk positions nationally,
approximately 105,000 light unskilled furniture rental clerk positions nationally, and
approximately 15,000 light unskilled investigator dealer account or floor plan adjuster

positions nationally. (Tr. 96-97). The ALJ also asked the VE about the impact on the ability
of the individual to perform these jobs if an individual cannot crawl; cannot climb
ladders, ropes, scaffolds; occasionally balance, stoop, kneel, crouch, climb ramps and
stairs, push, pull, and reach overhead and in other directions with the right upper
extremity. (Tr. 98). The VE confirmed that the individual could still perform these jobs

with those limitations. (Id.).
II. Relevant Medical Records
On November 15, 2017, Plaintiff saw Meena Murugappan, M.D. (“Dr.
Murugappan”) complaining about a persistent cough and oral thrush. (Tr. 689).
Dr Murugappan reported that Plaintiff’s gait was normal and there was normal

movement of extremities. (Tr. 692). On November 30, 2017, Plaintiff saw Haley Bray, M.D.
(“Dr. Bray”) for his persistent cough. (Tr. 413). Dr. Bray reported that Plaintiff “moves all
extremities well.” (Tr. 414). On December 21, 2017, Plaintiff saw Yusuf Agamawi, M.D.
(“Dr. Agamawi) for nasal congestion and his persistent cough. (Tr. 410). During the visit,
Dr. Agamawi noted that “[p]atient is otherwise doing well” and “moves all extremities
well.” (Tr. 410-412). In January 2018, Plaintiff’s gait was normal. (Tr. 701, 710).

On February 15, 2018, Plaintiff saw Anthony Truong D.O. (“Dr. Truong”) to “fill
out disability parking placard form.” (Tr. 713) (emphasis added). Plaintiff complained that
he “has pain with walking [greater than] 200 yards.” (Id.) (emphasis added). Later that
month, on February 21, 2018, Richard Derby, M.D. (“Dr. Derby”) reported that Plaintiff’s
gait was normal. (Tr. 719). In March 2018, Plaintiff saw Joseph Brunworth, M.D.
(“Dr. Brunworth”) for nasal obstruction and his persistent cough. During this visit, Dr.

Brunworth observed that Plaintiff “moves all extremities well.” (Tr. 409).
In April 2018, Yi Pan, M.D. (“Dr. Pan”) noted that Plaintiff’s back pain is “well
controlled, but he has intermittent leg kerking.” (Tr. 401, 405-406, 439, 441). During Dr.
Pan’s exam, he noted that gait was “normal, tandem walk stable, Romberg negative.”
(Tr. 407). In May 2018, Dr. Murugappan noted that Plaintiff’s gait was normal and his

extremities had normal movement. (Tr. 728). Then in June 2018, Dr. Bray noted that
Plaintiff was able to move all extremities well. (Tr. 405).
In July 2018, Plaintiff saw James Wade, M.D. (“Dr. Wade”) for the first time to
“establish care, discuss meds, and discuss disability due to asthma and back issues.”
(Tr. 546). During the examination, Dr. Wade noted that Plaintiff’s back was normal and

full range of motion. (Tr. 547). Dr. Wade’s exam also revealed no issues with Plaintiff’s
extremities and his musculoskeletal was “grossly normal, with appropriate ROM and
muscle strength.” (Id.).
On November 1, 2018, Plaintiff saw Dr. Wade to get “paper work done.” (Tr. 539)
(emphasis added). Plaintiff stated that he was unable to walk any distance due to the pain
and he requires a cane to walk. (Id.). After this appointment, on November 6, 2018,

Swetaben Patel, APRN-CNP (“Patel”) noted that Plaintiff was “doing well.” (Tr. 471).
Patel observed that Plaintiff walked with a cane. (Tr. 402, 473). On November 15, 2018,
Dr. Brunworth noted during the physical exam that Plaintiff “moves all extremities well.”
(Tr. 400).
On November 27, 2018, Plaintiff saw Dr. Wade to discuss his “back pain, [ ] pain
medication, lawyer and CT results.” (Tr. 536) (emphasis added). During this appointment,

Plaintiff was prescribed two medications for his back pain and referred to a specialist for
his bulging lumbar disc. (Tr. 537). In December 2018, Dr. Wade prescribed a cane for
Plaintiff to be used for 90 days. (Tr. 534). By March 2019, Dr. Feinerman noted that
Plaintiff could ambulate 50 feet without an assistive device. (Tr. 574-581). A month later,
in April 2019, Dr. Deppe observed that “[Plaintiff’s] gait was somewhat slowed and

deliberate; however, his posture was within normal limits.” (Tr. 588).
On April 24, 2019, Dr. Truong noted Plaintiff had “[n]ormal range of motion.”
(Tr. 760). In early June 2019, Plaintiff explained to Tara Helfrich, N.P. (“Helfrich”) that he
was “[o]verall feeling great other than known low back chronic pain and shoulder pain.”
(Tr. 776). Helfrich noted Plaintiff had a normal range of motion and exhibits no edema,

tenderness, or deformity. (Tr. 780). By late June 2019, Plaintiff also had normal range of
motion, exhibited no edema, tenderness, or deformity, and his gait and coordination were
normal. (Tr. 800).
On July 16, 2019, Dr. Mattei, neurosurgeon, conducted a physical examination on
Plaintiff. (Tr. 825). During the exam, he noted that Plaintiff seemed to be in mild

discomfort, but in no acute distress. (Id.). Dr. Mattei reported that Plaintiff “has
questionable straight leg raise test on the right side with pain radiating to the right S1
dermatome, negative on the left side.” (Id.). But overall, Dr. Mattei noted that “[r]eflexes
are physiologic and symmetric at 1+ in the lower limbs.” (Id.).
On October 25, 2019, Dr. Tikku George, M.D. (“Dr. George”) noted Plaintiff no
longer had pain radiating to his legs and was not using a cane for ambulation. (Tr. 839-840)

(emphasis added). Plaintiff also told Dr. George that he “plan[ned] to return to work
soon, either office position or as forklift driver.” (Id.). On January 31, 2020, Dr. Truong
observed that Plaintiff’s range of motion was normal. (Tr. 918). On February 26, 2020,
Plaintiff saw Marc McCleary, M.D. (“Dr. McCleary”) for back and neck pain. (Tr. 901).
(Id.). Plaintiff noted that he exercised and Dr. McCleary did not record observing a

walker. (Tr. 904). Plaintiff’s range of motion was normal. (Tr. 905).
III. State Agency Consultants’ Opinions
In April 2019, Lenore Gonzalez M.D. (“Dr. Gonzalez”) assessed Plaintiff’s RFC
based on a review of the record. Dr. Gonzalez concluded that Plaintiff could do light
work. (Tr. 142). Besides Dr. Gonzalez, M.W. DiFonso, Psy.D. (“DiFonso”) noted no

mental medically determinable impairment. (Tr. 137).
In August 2019 and September 2019, a second state agency consultant, James
Madison, M.D. (“Dr. Madison”) reviewed the record. Dr. Madison concluded that
Plaintiff could do light work (Tr. 175-193). Besides Dr. Madison, Craig Brown, Ed. D.
(“Brown”) noted no mental medically determinable impairments established. (Tr. 170,
188).
DECISIONS OF THE ALJ

The ALJ followed the five-step analytical framework process for determining
whether an individual is disabled. The ALJ determined that Plaintiff had not engaged in
substantial gainful activity since November 30, 2018, the alleged onset date. (Tr. 18). The
ALJ also found that Plaintiff had severe impairments such as degenerative disc disease,
degenerative joint disease, asthma, epilepsy, and obesity. (Id.)

The ALJ found that Plaintiff has the RFC to perform light work, except Plaintiff
cannot crawl, climb ladders, ropes, or scaffolds. (Tr. 21). In addition, Plaintiff can
occasionally balance, stoop, kneel, crouch, climb ramps or stairs, push or pull, and reach
overhead and behind his back with his upper right extremity. (Id.). However, Plaintiff
should avoid concentrated exposure to extreme heat and cold, humidity, pulmonary

irritants, and hazards. (Id.). The ALJ also found that Plaintiff is unable to perform any
past relevant work. (Tr. 27). In conclusion, based on the VE’s testimony, the ALJ found
that Plaintiff was not disabled because considering his age, education, work experience,
and RFC, Plaintiff is capable of making a successful adjustment to other work that exists
in significant numbers in the national economy. (Tr. 29).

DISCUSSION
I. Failing to Consider the Medical Assistive Device
Plaintiff contends that the ALJ “failed to consider that [Plaintiff] was prescribed a
hand held medical assistive device.” (Doc. 22, p. 5). Plaintiff argues that “[t]he ALJ
ignores the records showing worsening spinal conditions, receiving pain shots, receiving
new oral pain medication, having a positive straight leg raise, and expressly being

prescribed a cane.” (Id. at p. 6). According to Plaintiff, “[t]his is an example of
impermissible cherry picking of evidence.” (Id.). Plaintiff also accuses the ALJ of playing
doctor because the ALJ states “the claimant is not documented to have a chronically
altered gait or ever documented to be unable to ambulate effectively without an assistive
device as would reasonably support a conclusion that the claimant requires the use of a
cane for ambulation and standing.” (Id. at pp. 6-7). Plaintiff concludes, “[a]n ALJ is

certainly not in a better position than a claimant’s treating physician to determine
whether or not a cane is necessary.” (Id. at p. 7).
These arguments are not alleging that the ALJ “played doctor,” Instead, Plaintiff
is asking the Court to reweigh the evidence. But Plaintiff fails to cite to any evidence
supporting his claim that the ALJ played doctor. After analyzing the record, the ALJ not

only noted that Plaintiff does not have documentation for his chronically altered gait, but
also the ALJ explains in great detail why Dr. Wade’s opinion is unpersuasive, noting the
following:
He identified no specific pain behavior (e.g., grimacing, wincing, groaning)
or motor, sensory, reflex, or strength deficits. He also made no change to
the claimant’s medication regimen on that date. (Exhibit B5F/1-2). The
medical signs and treatment documented in that note do not reasonably
supportive Dr. Wade’s opinion. That is, there is no logical nexus between
the clinical findings observed and treatment prescribed by the treatment
provider and his opinion. Additionally, he did not include a sufficient
explanation that reconciles the discrepancies between the clinical findings
and the opinion, or that otherwise creates a logical bridge between the
medical evidence and the opinion. In support of his opinion, the only
objective medical evidence Dr. Wade cited was 2014 evidence of a bulging
disc with spinal canal comprise, which predates the alleged onset date of
disability by approximately four years. Otherwise, he only cited to the
claimant’s diagnoses and subjective complaints. He identified no medical signs
that support his conclusions. Therefore, the opinion is unsupported. Second, the
opinion is not consistent with the broader case record. As has already been
discussed above, the record simply does not document clinical abnormalities or
treatment reasonably supportive of the degree of limitation alleged by the claimant
or assessed by Dr. Wade. Indeed, the only abnormality consistently present has
been the claimant’s obese body habitus. Because the opinion of the claimant’s own
treatment provider is not supported by or consistent with the medical and non-
medical evidence of record, the undersigned finds it to be unpersuasive.

(Tr. 26) (emphasis added).

Here, Plaintiff filed his claim in 2018. Thus, the ALJ was required to evaluate the
medical opinion evidence under 20 C.F.R. § 404.1520c which applies to claims filed on or
after March 27, 2017. Under this regulation, the ALJ “will not defer or give any specific
evidentiary weight, including controlling weight, to any medical opinion(s) or prior
administrative medical finding(s), including those from [a claimant’s] medical sources.”
Id. An ALJ is required to articulate “how persuasive [she] find[s] all of the medical
opinions and all of the prior administrative medical findings in [a claimant’s] case
record.” Id. When evaluating medical opinions, 20 C.F.R. § 404.1520c lists out factors for
ALJ’s to consider including: supportability, consistency, relationship with the claimant,
specialization, and other factors that tend to support or contradict a medical opinion or
prior administrative medical finding. Id. “An ALJ’s decision must explain how she
considered the factors of supportability and consistency, but she is not required to explain
how she evaluated the other factors.” Josefina T. v. Kijakazi, 2022 WL 2669523, at *3 (N.D.
Ill. July 11, 2022) (citing 20 C.F.R. § 404.1520c(b)(2)) (emphasis added). Because the ALJ
neither played doctor nor cherry picked evidence—but instead followed 20 C.F.R.
§ 404.1520c—his decision must be upheld.
II. Using Objectively Faulty Rationale in Discounting the Medical Source
Statement

Plaintiff attempts to argue that the ALJ’s analysis of Dr. Wade was “objectively
incorrect.” (Doc. 22, p. 8). The Court disagrees. First, Plaintiff argues that “[t]he ALJ states
that ‘on the date he rendered his opinion the only abnormality noted was lumbar back
pain.’” (Id.). Plaintiff then notes, but “[o]n this date, Dr. Wade prescribed a cane.” (Id.). A
cane is not an abnormality. Also, there is a difference between prescribing and observing.
This argument does not prove the ALJ’s analysis was faulty.
Second, Plaintiff calls the ALJ’s statement that there were no notes of grimacing,

wincing, or groaning—“simply odd.” (Doc. 22, p. 8). It does not matter if Plaintiff thinks
the ALJ’s statement is odd because the ALJ’s statement is still correct. There are no notes
of grimacing, wincing, or groaning. The fact that “[t]here is no authority requiring the
words ‘grimacing, wincing, or groaning’ when determining a residual functional
capacity” is immaterial. The ALJ is required only to “minimally articulate” his or her

reasons for accepting or rejecting evidence. Berger v. Astrue, 516 F.3d 539, 545 (7th Cir.
2008); Elder v. Astrue, 529 F.3d 408, 415 (7th Cir. 2008). Here, the ALJ met this “lax”
standard because the reason he gave for the weight he assigned to the opinions were
supported by the record, and the ALJ took into consideration the regulatory factors.
Third, Plaintiff calls the ALJ’s statement that there were no medication changes on

the date of the opinion nonsensical. (Doc. 22, p. 8). Plaintiff then notes that “Dr. Wade
prescribed the claimant two new pain meds and gave the claimant two anti-inflammatory
injections on the prior visit of 11/27/2018.” (Id. at pp. 8-9). The problem with Plaintiff’s

argument is the ALJ is not wrong. The ALJ correctly observed that Dr. Wade made no
change to Plaintiff’s medication regimen on December 27, 2018. The significance of not
changing medication on that date is simple. Not changing pain medication shows that
the medication was effective or supports the notion that Plaintiff’s pain was not
worsening to the point where he needed more pain medication.
Fourth, to the extent the ALJ thought Dr. Wade was citing 2014 imaging, any

mistake was harmless at worst. In fact, if the ALJ simply relied on Dr. Wade’s findings,
then this mistake would be serious—but the ALJ went well beyond Dr. Wade’s findings.
Fifth, Plaintiff argues that “[t]he ALJ states that the claimant’s bodily habitus is the
only abnormality that is consistently present[,] . . . [but] [then] the ALJ [found] four severe
medical impairments other than obesity[.]” (Doc. 22, p. 9). Plaintiff did not go into detail

whether the four severe medical impairments were consistently present. Plaintiff did not
explain whether the four severe medical impairments were abnormalities. Plaintiff did
not attack the ALJ’s ultimate conclusion that Plaintiff “does not have an impairment or
combination of impairments that meets or medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” (Tr. 19). The Court rejects

this argument.
Sixth, Plaintiff repeats himself concluding that “[t]he ALJ impermissibly played
doctor and cherry picked evidence unfavorable to the claimant while ignoring evidence
that supported a finding of disability.” (Doc. 22, p. 9). The Court already rejected this
argument.
III. Improperly Relying Upon a Prior ALJ Decision where the Claimant’s Non-
Attorney Representative Failed to Update the Record

The ALJ properly relied upon the prior ALJ decision—and conducted his own
review of the evidence. “Plaintiff put his condition in the preceding years at issue by
claiming that he had been disabled since 2014.” (Doc. 27, p. 12). The Court agrees that “it
was reasonable for the ALJ to note the final and binding November 20, 2018 ALJ decision
finding Plaintiff not disabled.” (Id. at p. 13). As noted by the Commissioner, the record
did not show a significant decline in Plaintiff’s condition following the first ALJ’s
decision. To uncover the lack of decline in Plaintiff’s condition, the ALJ conducted a de
novo review of the evidence—”including evidence that predated Plaintiff’s alleged onset

of disability with respect to his DIB claim and predated his SSI application.” (Id.).
While Plaintiff was previously represented by a non-attorney who failed to update
the record, Plaintiff is not contending that the prior ALJ erred by failing to “qualify” the
non-attorney representative. Plaintiff is also not contending that the prior ALJ failed to
obtain a valid waiver of counsel when he allowed Plaintiff to proceed with Mr.

Bueltemann. See Binion v. Shalala, 13 F.3d 243, 245 (7th Cir. 1994) (citing 42 U.S.C. § 406;
20 C.F.R. § 404.1700) (“[a] claimant has a statutory right to counsel at a disability
hearing”). In fact, Plaintiff cannot challenge the prior ALJ’s decision because Plaintiff did
not timely appeal the denial by filing a Request for Review of Appeals Council. (Tr. 15).2

2 Notably, the ALJ’s duty to develop the record “is enhanced when a claimant appears without
counsel; then the ALJ must scrupulously and conscientiously [ ] probe into, inquire of, and
explore for all relevant facts.” Nelms v. Astrue, 553 F.3d 1093, 1098 (7th Cir. 2009) (internal quotes
Most importantly, the medical records from Dr. Brunworth, Dr. Pan, Dr. Truong,
Dr. Weimer, and Dr. Oragampe do not help Plaintiff's case. Plaintiff points out that “[t]he
exhibit list from the [prior] decision indicates that the newest medical evidence of record

was dated May 30, 2018 when the hearing decision was issued on November 20, 2018.”
(Doc. 22, p. 10). Plaintiff continues “argu[ing] that the prior denial should not present an
uphill battle for the claimant when considering disability after November 20, 2018.” (Id.).
The problem is the recent ALJ decision still relied on medical evidence well past May 30,
2018 —and the medical evidence after that date does not help Plaintiff's case. (Tr. 34).
CONCLUSION
After careful review of the record as a whole, the Court finds that ALJ committed

no errors of law, and 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, and this action is DISMISSED with prejudice.
The Clerk of Court is DIRECTED to enter judgment accordingly.
IT IS SO ORDERED.
DATED: July 25, 2022

NANCY J. ROSENSTENGEL
Chief U.S. District Judge

and citation omitted). The reason is simple. A non-attorney representative—like Mr.
Bueltemann— “lacks the training of an attorney and is not a substitute for an attorney.’” Mar. v.
Colvin, 2016 WL 4154682, at *3 (N.D. IL. Aug. 3, 2016) (quoting Watkins v. Colvin, 2014 WL 683849,
at *9 (N.D. Ind. Feb. 21, 2014)). Frustratingly, the AL] referred to Mr. Bueltemann as “counsel”
numerous times during the hearing—and Mr. Bueltemann never corrected the ALJ. Mr.
Bueltemann was not an attorney.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10155319. Public record. Not legal advice.