The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JASON L. 1,
Plaintiff,
v. Case No. 21-cv-00595-SPM
KILOLO KIJAKAZI,
Acting Commissioner of
Social Security,
Defendant.
MEMORANDUM AND ORDER
McGLYNN, District Judge:
In accordance with 42 U.S.C. § 405(g), plaintiff seeks judicial review of the final
agency decision denying her application for Disability Insurance Benefits (DIB) benefits
pursuant to 42 U.S.C. § 423 and 42 U.S.C. §§ 1382 and 1382c, respectively2 (Doc. 1).
PROCEDURAL HISTORY
On August 22, 2019, plaintiff applied for DIB, alleging a disability onset date of
June 25, 2014. (Tr. 200). On December 20, 2019, plaintiff was advised that he did not
qualify for benefits and his claims was disapproved. (Tr. 135-138). On January 4, 2020,
1 In keeping with the court’s practice, plaintiff’s full name will not be used in this Memorandum and
Order due to privacy concerns. See, Fed. R. Civ. P. 5.2(c) and the Advisory Committee Notes thereto.
2 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 and regulations 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.
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plaintiff requested reconsideration. (Tr. 140). On May 21, 2020, plaintiff was advised
that his claim had been independently reviewed; however, the previous denial was found
to be correct. (Tr. 143-147). On June 3, 2020, plaintiff requested a hearing before an
Administrative Law Judge (“ALJ”) because he disagreed with the determination and
claimed to be disabled and unable to work as a result of a severe injury to his spine. (Tr.
148-149). After holding an evidentiary hearing on November 2, 2019, the ALJ denied
the application on November 19, 2020. (Tr. 12-29). Plaintiff requested review of the
ALJ’s decision, but the Appeals Council denied plaintiff’s request for review on April 12,
2021. (Tr. 1-6). In accordance with the foregoing, the ALJ’s decision is the final agency
decision subject to judicial review. Plaintiff has exhausted administrative remedies and
filed a timely complaint with this Court (Doc. 1).
ISSUES RAISED BY PLAINTIFF
In his brief, plaintiff indicates that there are two primary issues to be decided:
1. Whether or not the ALJ’s assessment of Plaintiff’s credibility is
supported by substantial evidence; and,
2. Whether Plaintiff has been under a disability since June 4, 2019?
APPLICABLE LEGAL STANDARDS
To qualify for DIB or SSI, a claimant must be disabled within the meaning of the
applicable statutes. Under the Social Security Act, a person is disabled if he has an
“inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death
or which has lasted or can be expected to last for a continuous period of not less than
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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? 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). Thus, this Court must
determine not whether Plaintiff was, in fact, disabled at the relevant time, but whether
the ALJ’s findings were supported by substantial evidence and whether any errors of
law were made. Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003). 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.
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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).
THE DECISION OF THE ALJ
The ALJ, Katherine Jecklin, followed the five-step analytical framework
described above. She determined that plaintiff had not worked at the level of substantial
gainful activity since June 4, 2019, which was the alleged date of onset. (Tr. 17). She
found that plaintiff met the insured requirements of the Social Security Act through
December 31, 2019. (Id.). Plaintiff was born on October 10, 1973 and was 46 years old
on the alleged date of onset, which is defined as a younger individual age 45-49. (Tr. 24).
Plaintiff had at least a high school education. (Id.).
The ALJ found the plaintiff had the following severe impairments through the
date last insured: degenerative disc disease of the lumbar spine and obesity. (Tr. 17).
Regarding residual functional capacity (“RFC”), the ALJ found the plaintiff
had the RFC to perform sedentary work, as defined in 20 CFR 404.1567(a) 3,
3 Sedentary work. Sedentary work involves lifting no more than 10 pounds at a time and occasionally
lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined
as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out
job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary
criteria are met.
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“except the claimant could never climb ladders, ropes, or scaffolds. He could
occasionally climb ramps and stairs, stoop, kneel, crouch, crawl, and
balance on uneven, narrow, slippery, or erratically moving surfaces.
[Plaintiff] could frequently balance on even or all other terrain. He must
have been allowed to stand for one to two minutes after sitting for 45
minutes while he remained at his workstation. He could have no more than
occasional exposure to vibration and to hazards, such as unprotected
heights.” (Tr. 18).
In making her RFC assessment, the ALJ noted that she considered all symptoms
and the extent they were consistent with the objective medical evidence and other
evidence, pursuant to 20 CFR 404.1529 and SSR 16-3p. (Tr. 19). The ALJ also
considered the medical opinion(s) and prior administrative medical findings, pursuant
to 20 CFR 404.1520c. The ALJ found that plaintiff’s statements as to the intensity,
persistence and limiting effects of his symptoms were inconsistent with the objective
evidence contained within the records4. (Id.).
The ALJ found that Plaintiff was unable to perform any past relevant work
through the date last insured. (Tr. 23). The ALJ further found that transferability of job
skills was not material to the determination of disability because using the Medical-
Vocational Rules as a framework supported a finding that the plaintiff was “not
disabled”, whether or not he has transferable job skills. (Tr. 24).
Through the last date insured, considering plaintiff’s age, education, work
experience, and RFC, the ALJ found that jobs existed in significant numbers in the
national economy that the plaintiff could have performed. (Id.). Specifically, the ALJ
4 The ALJ cited to specific examples like statements made by plaintiff during the hearing that were
inconsistent with the medical evidence and other evidence within the record.
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determined that the VE’s testimony was consistent with the information contained in
the Dictionary of Occupational Titles regarding the following jobs that were available
in the national economy and which could be performed by an individual such as plaintiff:
(1) Information Clerk; (2) Order Clerk; and, (3) Document Preparer. (Tr. 24-25).
Accordingly, the ALJ concluded that plaintiff was capable of making a successful
adjustment to other work that exists in significant numbers in the national economy.
(Tr. 25).
Finally, the ALJ found that the plaintiff has not been under a disability at any
time from June 4, 2019, the alleged onset date, through December 31, 2019, the date
last insured. (Id.).
THE EVIDENTIARY RECORD
The Court has reviewed and considered the entire evidentiary record in
formulating this Memorandum and Order. The following summary of the records is
directed to the points raised by plaintiff.
1. Agency Forms
Plaintiff was born on October 10, 1973. (Tr. 200). In a prior claim5, he alleged that
originally became unable to work because of his disabling condition on June 25, 2014
and was receiving workers’ compensation, public disability, or black lung benefits,
which ended on January 31, 2017. (Id.).
5 This prior application was denied in June 2019 and is not the subject of this appeal. (Tr. 93-104).
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In this claim, he alleged a disability onset date of June 4, 2019 due to a
degenerative disc disease that included a micro discectomy in 2008 and a spinal fusion
in 2016, which resulted in chronic pain. (Tr. 34, 111, 122). He further claimed to not
have been engaged in substantial gainful activity since that date through his date last
insured of December 31, 2019. (Tr. 17).
2. Evidentiary Hearing
Plaintiff was represented by an attorney at the hearing on November 2, 2020. (Tr.
30-45).
Plaintiff resides with his wife. (Tr. 37). He had a prior disability claim denied the
day before the onset of this claim. (Tr. 36). Nothing has changed, he just believes the
decision was wrong. (Id.). He could not stand or walk for long distances or long periods,
and twice a month was in too much pain to get out of bed. (Id.).
From June 4, 2019 through the last half of the year, he was unable to sit for long
periods of time (20-30 minutes) without getting up and moving. (Id.). He tried to move
around, but had limits, and if he started hurting, he sat in his recliner or laid down in
bed. (Tr. 37). He would rest 45-60 minutes in the recliner before trying something else.
(Id.). He had to limit what he did so he did not take pain killers all the time. (Tr. 37-38).
He estimated reclining and being in bed 3/5 of every day, not including bedtime. (Tr.
38). Plaintiff can lift a gallon of milk, but not much more. (Tr. 39). His pain management
doctor said nothing is going to change and there is no further treatment. (Tr. 38).
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Plaintiff goes to Wal-Mart weekly with his wife. (Tr. 39). He cannot do much
there, but it is a way to get out of the house. (Tr. 40). He gets a cart right away and
walks a little but needs to take breaks on the shoe bench to rest. (Id.).
As for housework, plaintiff cannot do laundry because it is in the basement and
he avoids stairs. (Id.). He cannot use the dishwasher or oven because they are too low
to the ground. (Id.). He can heat things up in the microwave but cannot stand waiting
long. (Tr. 41).
He drives himself to the doctor (Tr. 40). He has some trouble bathing himself, but
it is manageable. (Id.). He is limited when dressing himself below the waist. (Tr. 41).
Plaintiff typically wakes around 6:00 and goes to bed around 2:00 a.m. (Id.). He averages
4-6 hours of sleep each night (Id.).
A vocational expert (VE), Melinda Stahr, testified that a sedentary RFC would
eliminate plaintiff’s past work. (Tr. 42). Her testimony concurred with the ALJ’s
hypothetical based upon the RFC restrictions. (Tr. 42-43). In other words, the VE
indicated that the individual in the hypothetical could perform work at the sedentary,
unskilled level in jobs such as information clerk, order clerk, and document preparer.
(Tr. 43). According to the VE, sedentary jobs do not generally require walking, standing,
crouching, or running on narrow, slippery or erratically moving surfaces. (Id.). The VE
opined that 15% or more of workday off task would contradict competitive employment.
(Tr. 44). The VE also opined that individuals who miss at least 2 days of work per month
are unable to maintain competitive employment. (Tr. 44).
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3. Relevant Medical Records
In 2008, plaintiff underwent a microdiscectomy. In 2016, plaintiff underwent
spinal fusion surgery on his L2-L3 and L3-L4 vertebrae by Dr. David Kennedy.
Following the 2016 surgery, plaintiff’s treatment consisted of pain management
with Kaylea Boutwell at Katalyst Pain Management. This claim alleges disability
beginning June 4, 2019 and the first medical visit after that date occurred on July 23,
2019. (Tr. 303-306). At that visit, Dr. Boutwell noted that plaintiff described his pain as
a 3/10. Dr. Boutwell reviewed plaintiff’s medications and surgical history, and discussed
making lifestyle changes. On exam, Dr. Boutwell reported that plaintiff was in no acute
distress and that his low back remained “completely unchanged from nearly all previous
visits”. Plaintiff did not use any assistive ambulatory device and had only a slightly
antalgic gait. Dr. Boutwell indicated that there were no significant objective changes
since the last visit6.
On October 30, 2019, plaintiff returned to Dr. Boutwell at Katalyst Pain
Management (Tr. 362-364). Although he advised his pain was somewhat worse with the
weather changing to cooler and wetter, Dr. Boutwell reported that palpation did not
elicit any increased discomfort or tenderness and noted that the 10-system review was
unremarkable with the exception of the musculoskeletal complaints. The bilateral lower
extremity sensory exam was within normal limits. Dr. Boutwell observed that plaintiff
did not use any type of assistive device and that he only had a slight antalgic gait. Dr.
6 Prior to the alleged onset date of June 4, 2019, plaintiff last saw Dr. Boutwell on April 30, 2019.
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Boutwell continued plaintiff on his medications of gabapentin and hydrocodone, but was
optimistic she could reduce the dosages when approaching spring and summer months.
On November 13, 2019, a consultative exam was conducted by Dr. Veronica
Weston (Tr. 335-343). Dr. Weston was aware of plaintiff’s medical history, including the
microdiscectomy and fusion. She was also aware that plaintiff was seeing Dr. Boutwell
for pain management and was treating with hydrocodone and gabapentin. Dr. Weston
observed that plaintiff was well-nourished and obese and had a normal gait. She also
observed that he brought no assistive device to the exam room, that he needed no help
changing for the exam, and that he needed no help getting on and off the exam table,
although he rose from the chair slowly. Her findings noted some tenderness to palpation
along the lumbar spine radiating toward the gluteal region and across the waistline
with decreased range of motion of the lumbar spine.
On November 15, 2019, lumbosacral spine x-rays that had been taken as part of
Dr. Weston’s examination were reviewed by Dr. Joseph Gottesman, a board-certified
radiologist. (Tr. 340). The report indicated that plaintiff was status post dorsal surgical
fixation of and discectomy at L2-L4 with surgical hardware in place, as well as status
post bilateral laminectomies at the L3 level. Dr. Gottesman noted that the height of all
the vertebral bodies and of the remaining intervertebral disc spaces appeared to be well
maintained. He further noted that no fractures or subluxation was seen.
4. State Agency Consultations
Two state agency consultants assessed plaintiff’s RFC based upon a review of the
record and determined that he was not disabled. (Tr. 111-119, 122-133). The initial
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review was completed on December 13, 2019 and the reconsideration was performed on
May 19, 2020. In both, the medical evidence showed that plaintiff’s condition caused
some restrictions, but that he was able to adjust to other work.
ANALYSIS
I. Credibility
Plaintiff first argues that the ALJ erred in her assessment as there was
substantial evidence to support his claim.
The findings of the ALJ as to the accuracy of the plaintiff’s allegations are to be
accorded deference, particularly in view of the ALJ’s opportunity to observe the
witness. Powers v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000). However, Social Security
regulations and Seventh Circuit cases “taken together, require an ALJ to articulate
specific reasons for discounting a claimant's testimony as being less than credible, and
preclude an ALJ from ‘merely ignoring’ the testimony or relying solely on a conflict
between the objective medical evidence and the claimant's testimony as a basis for a
negative credibility finding.” Schmidt v. Barnhart, 395 F.3d 737, 746-747 (7th Cir.
2005), and cases cited therein.
On March 28, 2016, SSR 16-3p (S.S.A Oct. 25, 2017), 2017 WL 5180304, at *2,
became effective, replacing SSR 96-7p, and providing new guidance regarding how a
disability claimant's statements about the intensity, persistence, and limiting effects of
symptoms are to be evaluated. Under SSR 16-3p, an ALJ now assesses a claimant's
subjective symptoms rather than assessing her “credibility.” Id. The Seventh Circuit
has explained that the “change in wording is meant to clarify that administrative law
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judges aren't in the business of impeaching claimants' character; obviously
administrative law judges will continue to assess the credibility of pain assertions by
applicants, especially as such assertions often cannot be either credited or rejected on
the basis of medical evidence.” Cole v. Colvin, 831 F.3d 411, 412 (7th Cir.
2016) (emphasis in original). Still, the standard remains whether the ALJ's assessment
was patently wrong.
The ruling specifies that the SSA uses “all of the evidence to evaluate the
intensity, persistence, and limiting effects of an individual's symptoms,” but continues
to utilize the regulatory factors relevant to a claimant's symptoms, including daily
activities, the location, duration, frequency, and intensity of pain or other symptoms,
factors that precipitate and aggravate the symptoms, the type, dosage, effectiveness,
and side effects of any medication an individual takes or has taken to alleviate pain or
other symptoms; and treatment, other than medication, an individual receives or has
received for relief of pain or other symptoms. SSR 16-3p, 2017 WL 5180304, at *7-8; 20
C.F.R. § 404.1529(c)(3).
As required by § 404.1529 and SSR 16-3p, the ALJ considered the objective
medical evidence; the course of treatment; the findings of the healthcare providers on
mental exams; plaintiff’s own statements to his treaters; his daily activities; and the
medical opinions. The ALJ considered plaintiff’s allegations of disabling symptoms and
explained why they did not bear on his contention that he was unable to work at even
the sedentary level of exertion. For example, the ALJ noted that the microdiscectomy
and spinal fusion surgery, along with the post-fusion imaging, showed “satisfactory
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progression of fusion”. She also noted Dr. Boutwell’s pain management notes regarding
bilateral lower extremity sensory examinations remaining within the normal limits as
well as the normal reflexes and “only slightly antalgic gait” without any assistive device.
In the absence of any contrary opinion from plaintiff’s treating provider, the ALJ
also considered the consultative exam in November of 2019 at which time plaintiff had
a normal, unassisted gait and normal reflexes. Moreover, the ALJ considered plaintiff’s
obesity and SSR 19-2p, which provides that obesity can cause limitation of function in
any of the exertional functions.
A review of the record and the ALJ’s opinion show that she considered plaintiff’s
daily activities; duration, location, frequency, and intensity of pain; precipitating and
aggravating factors; dosage and effectiveness of medication; and, other treatment or
measures used to relieve pain. See 20 C.F.R. §404.1529(c)(3). The ALJ did not disregard
any significant evidence that would have dictated a different opinion. The ALJ’s
evaluation of plaintiff’s subjective complaints was well reasoned and well-supported,
and her conclusion as to the accuracy of plaintiff’s statements was supported by the
evidence and was not “patently wrong”. Schmidt v. Astrue, 496 F.3d 833, 842 (7th Cir.
2007). For all of these reasons, the ALJ’s decision must therefore be affirmed.
II. Disability
For the second issue, plaintiff challenges the ALJ’s finding that plaintiff has not
been under a disability since June 4, 2019; however, in accordance with 20 C.F.R.
404.1520, the ALJ followed the five-step sequential evaluation process to determine that
plaintiff was “not disabled”.
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At step one, the ALJ reasonably determined that plaintiff had not worked at the
level of substantial gainful activity during the period from his alleged onset date of June
4, 2019 through his date last insured of through December 31, 2019. (Id.). In making
this determination, the ALJ considered the plaintiff’s earning records to verify that he
was not earning an amount that met or exceeded the substantial gainful activity earning
requirements. The ALJ also reviewed the medical records to verify that plaintiff had not
recently begun employment. Although not mentioned in the decision, the ALJ also
verified at the hearing that there was no work to look at during the relevant time period,
which was the alleged onset date of June 4, 2019 through the end of 2019.
At step two, the ALJ found that plaintiff had the severe impairments of
degenerative disc disease of the lumbar spine and obesity. In making this
determination, the ALJ indicated she considered any impairments in the record, and
only determined that degenerative disc disease of lumbar spine and obesity met the
criteria for severe impairment. Additionally, on his application for disability, plaintiff
referenced a back injury and the records referred to the prior microdiscectomy and
spinal fusion and his obesity. Furthermore, plaintiff only discussed the limitation
caused by his back condition at the hearing.
At step three, 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. At this step, the ALJ considered that no treating, examining, or
non-examining medical source opined or otherwise indicated that plaintiff had an
impairment or combination of impairments of listing level severity. In making this
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determination, the ALJ referenced the medical evidence in relation to listings 1.04 and
1.00B2b. She also evaluated plaintiff’s obesity in light of SSR 19-2p.
Before proceeding to step four, the ALJ determined that plaintiff had the
Residual Functional Capacity (“RFC”) to perform sedentary work as defined in 20 CFR
404.1567(c) with the limitations set forth infra. RFC is what an individual can still do
despite his or her limitations. SSR 968p; see also 20 C.F.R. § 404.1545(a)(1). “The RFC
is not the least an individual can do despite his or her limitations or restrictions, but the
most.” Id. “The RFC assessment must be based on all of the relevant evidence in the
case record ....” SSR 96-8p; see 20 C.F.R. § 404.1545(a)(3).
The ALJ considered plaintiff’s symptoms, the objective medical evidence, the
medical opinions, and the medical findings. She listened to plaintiff’s testimony at the
hearing, and she also questioned the VE and presented a hypothetical to her regarding
sedentary requirements and assessments for her opinion. The ALJ even expressly
considered before discounting the assessment conducted by Dr. Frank Mikell that
plaintiff could perform work at the light exertional level. Indeed, even though a
physician thought the RFC should be higher, the ALJ erred on the side of caution.
At Step 4, the ALJ found that plaintiff was unable to perform any past relevant
work through the date last insured. It was determined that plaintiff was previously a
sales route driver, which was beyond plaintiff’s exertional level.
Finally, at step 5, the ALJ found that jobs exist in significant numbers in the
national economy that the plaintiff can perform, considering her age, education, work
experience, and residual functional capacity. The ALJ considered all the applicable
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factors and also questioned the VE with hypotheticals before obtaining information
regarding occupations plaintiff would be capable of performing, all of which were
sedentary exertional level, and were available in sufficient numbers in the national
economy.
In closing, the plaintiff has the burden of establishing that he is disabled within
the meaning of the Social Security Act. Plaintiff’s vague assertion that he was clearly
disabled under the rules is little more than an invitation for this Court to reweigh the
evidence. Plaintiff has not identified a sufficient reason to overturn the ALJ’s
conclusion. The mere fact that he has obtained a disability placard is not dispositive and
this Court is constrained to note that the State of Illinois definition of disability set out
on the handicapped parking application is distinct from the standard employed by the
SAA in determining whether an individual is entitled to benefits. 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).
CONCLUSION
After careful review of the record as a whole, the Court is convinced that the ALJ
committed no errors of law, and that her 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.
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The Clerk of Court is directed to enter judgment in favor of defendant.
IT IS SO ORDERED.
DATED: August 31, 2022
/s/ Stephen P. McGlynn_
STEPHEN P. McGLYNN
U.S. District Judge
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