# Ambrosio v. Commissioner of Social Security

> District Court, S.D. Illinois · February 29, 2024

URL: https://www.frixlaw.com/law-library/cases/10157399

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** February 29, 2024
- **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

MARIE A.,1 )
)
Plaintiff, )
)
vs. ) Case No. 3:23-CV-1094-MAB2
)
COMMISSIONER OF SOCIAL )
SECURITY, )
)
Defendant.

MEMORANDUM AND ORDER

BEATTY, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), Plaintiff Marie A. is before the Court,
represented by counsel, seeking review of the final decision of the Commissioner of Social
Security denying her application for Disability Insurance Benefits (DIB) under Title II of
the Social Security Act and her application for Supplemental Security Income (SSI) under
Title XVI of the Social Security Act. For the reasons set forth below, the Commissioner’s
decision is reversed and this matter is remanded for rehearing and reconsideration of the
evidence pursuant to sentence four of 42 U.S.C. § 405(g).
PROCEDURAL HISTORY
Plaintiff protectively filed a Title II application for a period of disability and DIB
on April 7, 2020 (Tr. 252-54, 255-61). Plaintiff also filed a Title XVI application for SSI on

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 This case was assigned to the undersigned for final disposition upon consent of the parties pursuant to 28
U.S.C. §636(c) (Doc. 9).
April 17, 2020 (Tr. 262-68). Plaintiff’s applications alleged disability beginning on
December 2, 2017, due to numerous impairments including bilateral shoulder problems,

thyroid condition, celiacs disease, degenerative disc disease of cervical spine, numbness
in hands, swollen hands and feet, and anxiety (Tr. 61).
Plaintiff’s claim was initially denied in January 2021 and upon reconsideration in
February 2022 (Tr. 60-96, 97-157, 166-77). Plaintiff requested a rehearing by an
Administrative Law Judge (ALJ), which occurred on June 30, 2022 (Tr. 34-59, 178-79).
Following the hearing, ALJ Matthew Bring issued an unfavorable decision dated August

3, 2022 (Tr. 1-23). Plaintiff’s request for review was denied by the Appeal’s Council and
thus, the ALJ’s decision became the final agency decision (Tr. 27-32). Plaintiff has
exhausted her administrative remedies and has filed a timely complaint in this Court
seeking judicial review of the ALJ’s adverse decision (Doc. 1).
APPLICABLE LEGAL STANDARDS

To qualify for DIB or SSI, a claimant must be disabled within the meaning of the
applicable statutes and regulations.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).

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 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, of the DIB regulations. Most citations herein are to the DIB regulations out of convenience.
To determine whether a claimant is disabled, the ALJ considers the following five
questions in order. 20 C.F.R. § 416.920(a)(4). The first question is whether the claimant is

presently engaged in substantial gainful activity? Id. If the answer is yes, then the
claimant is not disabled regardless of their medical condition, age, education, and work
experience. Id. at § 416.920(a)(4)(i), (b). If the answer is no, and the individual is not
engaged in substantial gainful activity, the analysis proceeds to question two. Id. at §
416.920(a)(4).
At question two, the ALJ considers whether the claimant has a medically

determinable physical or mental impairment, or a combination of impairments, that is
“severe” and expected to persist for at least twelve months. 20 C.F.R. § 416.920(a)(4)(ii),
416.909. If the answer is no, then the claimant is not disabled. Id. at § 416.920(c). If the
answer is yes, the analysis proceeds to question three. Id. at § 416.920(a)(4).
At question three, the ALJ must determine whether the claimant’s severe

impairments, singly or in combination, meet the requirements of any of the “listed
impairments” enumerated in the regulations. 20 C.F.R. § 416.920(a)(4)(iii). See also 20
C.F.R. Pt. 404, Subpt. P, Appendix 1 (list of impairments). A claimant who meets the
requirements of a “listed impairment” is deemed disabled. 20 C.F.R. § 416.920(d). For
claimants who do not meet the requirements of a “listed impairment,” the ALJ must then

determine the claimant’s residual functional capacity (RFC). Id. at § 416.920(e).
At question four, the ALJ must determine whether the claimant retains the RFC to
continue performing their former occupation. 20 C.F.R. § 416.920(a)(4)(iv). If the answer
is yes, then the claimant is not disabled. Id. at § 416.920(a)(4)(iv), (f). If the answer is no,
the analysis proceeds to the fifth and final question, which is whether the claimant can
make an adjustment to perform any other work. Id. at § 416.920(a)(4)(v). If the answer is

yes, then the claimant is not disabled. Id. at § 416.920(g). If the answer is no, then the
claimant is disabled. Id.
It is important to recognize that the scope of review is limited. “The findings of the
Commissioner of Social Security as to any fact, if supported by substantial evidence, shall
be conclusive[.]” 42 U.S.C. § 405(g). Thus, this Court must determine not whether Plaintiff
was, in fact, disabled at the relevant time, but whether the ALJ’s findings were supported

by substantial evidence and whether any errors of law were made. Lopez ex rel. Lopez v.
Barnhart, 336 F.3d 535, 539 (7th Cir. 2003). 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). “[W]e will reverse

only if the record compels a contrary result.” Deborah M. v. Saul, 994 F.3d 785, 788 (7th
Cir. 2021) (citation and internal quotation marks omitted).
THE EVIDENTIARY RECORD
The Court has reviewed and considered the entire evidentiary record in
formulating this Memorandum and Order. The following summary of the record is

presented in mostly chronological order and directed to the points and factual allegations
raised by Plaintiff. Specifically, because Plaintiff challenges the ALJ’s conclusion
regarding the use of her upper extremities, the Court’s summary of the record focuses
upon evidence pertaining to Plaintiff’s upper extremities.
Plaintiff was born on April 25, 1977, and was 40 years old at her alleged disability

onset date of December 2, 2017 (Tr. 16, 60). Plaintiff worked in telecommunications as an
Information Technology Manager from 1997 until her alleged disability onset date (Tr.
39, 379-83).4 While Plaintiff attempted to perform some part-time work after her alleged
onset date, that employment was sporadic and did not result in earnings sufficient to be
considered substantial gainful activity (Tr. 6-7, 40).

Prior to her alleged onset date of December 2, 2017, Plaintiff dealt with pain and
several other symptoms on a less frequent basis (Tr. 41, 720). Office treatment records
from Plaintiff’s visits to Dr. Robert Rice from December 2016 to November 2017
document that Plaintiff was suffering from back pain, along with pain in her neck,
shoulders, hip, right ankle, and joints (Tr. 464-87). Numerous other records also

document Plaintiff’s struggles with back, neck, shoulder, thigh, hip, and ankle pain both

4 The ALJ describes Plaintiff’s past employment as being “a chief computer programmer” in his decision
(Tr. 16). However, the ALJ’s citations to the record refer to her prior job title as an “Information Technology
Manager (Tr. 379). Ultimately, in light of the ALJ’s determination at step four (discussed below), any
potential distinction between the two job titles is inconsequential to the Court’s analysis.
before and after her alleged onset date (Tr. 720-24, 731, 1002-04, 1080, 1337-61, 1529-54).
Likewise, numerous records provide evidence of the mental impairments that Plaintiff

was allegedly facing both before and after her alleged onset date (Tr. 920, 954-57, 961,
996-1000, 1047-49, 1366-1442).
On September 5, 2019, Plaintiff visited Dr. Susan Reynolds and reported shoulder
and neck pain, as well as suffering from swollen hands and feet that takes two hours to
go away in the morning (Tr. 954-58). Similarly on January 8, 2020, Plaintiff complained to
Dr. Reynolds that she was experiencing pain in her neck that radiated down her arms

and back, as well as dealing with numbness and weakness in her arms and loss of
sensation in her hands (Tr. 962-65). Plaintiff made similar complaints during a September
2020 evaluation with the Illinois Department of Human Services (Tr. 1047-49). For
instance, Plaintiff complained that “[i]t is very depressing that I can’t use my hands and
fingers. I can’t grip anything. It will fall out of my hands.” (Tr. 1047).

Similarly, a November 2020 report from West Park Medical Clinic noted that
Plaintiff reported that her hands may get numb and she has difficulty gripping things
(Tr. 1087-94). That report also included the results of a physical examination and stated,
“[t]he patient could oppose the thumb to each finger in both hands. Pinch strength, arm,
leg and grip strength were 4+/5 throughout.” (Tr. 1089). It was further noted that Plaintiff

had moderate difficulty in her left hand (and mild difficulty in her right hand) when
picking up a coin, picking up and holding a cup, picking up a pen, using buttons or
zippers, and tying shoelaces (Tr. 1091).
A function report was submitted by Plaintiff’s friend, Terry Hopkins, in 2020 (Tr.
386-93). Hopkins indicated that Plaintiff is in constant pain and has difficulties with

mobility and completing simple tasks (Tr. 386). Hopkins stated that Plaintiff is able to
prepare simple meals such as microwave meals on her own, but frequently requires
assistance from others (Tr. 388). Hopkins also wrote that Plaintiff needs assistance doing
housework, but is sometimes able to drive herself, shop on a limited basis and manage
her own finances (Tr. 388-89). Hopkins further explained that Plaintiff is unable to
participate in events or partake in activities like she used to (Tr. 390-91).

Plaintiff’s counsel also prepared a function report in 2020 on Plaintiff’s behalf (Tr.
398-408). In the report, Plaintiff indicated she is unable to shop without assistance, do
housework and yard work, prepare meals, provide personal care to herself without
assistance, and attend social functions (Tr. 399-402). Plaintiff stated that her ability to do
certain things such as preparing meals or doing housework was impeded by her limited

use of her hands (Tr. 400-01).5
No medical opinions were provided but several administrative medical findings
were prepared. In January 2021, Dr. John Peterson, a state agency medical consultant,
reviewed Plaintiff’s medical records and made several findings. Dr. Peterson found
Plaintiff had numerous exertional limitations and he limited her to occasional pushing

and/or pulling in both upper extremities (Tr. 60-72). Dr. Peterson also limited Plaintiff’s

5 An essentially identical function report was prepared on March 23, 2021, by Plaintiff’s counsel (Tr. 428-
35). This report included some additional information regarding kidney problems Plaintiff experienced
that resulted in hospitalization (Tr. 435).
left hand use to occasional handling and fingering, and her right hand use to frequent
handling and occasional fingering (Tr. 73). Dr. Peterson concluded that Plaintiff was able

to perform work at the sedentary exertional level with postural and environmental
limitations (Tr. 71-75).
At the reconsideration level, Dr. Terra Jones, a state agency physician, reaffirmed
Dr. Peterson’s findings (Tr. 97-119). Dr. Jones also found Plaintiff could perform
unskilled, sedentary work with appropriate limitations (Tr. 123-25). In January 2022, Dr.
Colleen Ryan, a state agency physician, reviewed the record and findings of Dr. Peterson

and Dr. Jones (Tr. 437-39). Dr. Ryan’s findings were divided into two time periods,
12/2/17 to 4/30/20 (Tr. 1297-34) and 5/1/20 continuing onwards (Tr. 1305-13). Dr. Ryan
imposed less restrictions during the earlier period, such as allowing unlimited pushing
and pulling (Tr. 1298) and no manipulative limitations (Tr. 1300). To support this
distinction, Dr. Ryan emphasized that certain severe physical impairments were not

documented or diagnosed until after Plaintiff’s alleged onset date of 12/2/17 (Tr. 437-39,
1305-13). However, when reviewing the time period from 5/1/20 until the present, Dr.
Ryan agreed with the prior medical assessments and the limitations they imposed (Tr.
437-39, 1305-13).
Dr. Howard Tin, a state agency psychiatric consultant, conducted a mental RFC

assessment at the initial level in January 2021 (Tr. 75-79). Dr. Tin concluded that, since the
protective filing date, Plaintiff has severe mental impairments that requires limiting her
to performing one and two-step tasks and avoiding interactions with the public (Tr. 78-
79). Upon reconsideration, Dr. Maria Yapondjian-Alvarado, a state agency psychiatric
consultant, found Plaintiff was capable of performing simple, routine, and/or repetitive
tasks (Tr. 119-22). Dr. Yapondjian-Alvarado stated that Plaintiff “would do best in a work

setting with brief and superficial contact with the public.” (Tr. 122).
An evidentiary hearing was held before ALJ Bring on June 30, 2022 (Tr. 33-59).
During this hearing, Plaintiff testified that she previously worked in telecommunications
doing coding, but lost her job around the time her employer was acquired by another
company (Tr. 39). Plaintiff attempted to return to work after that date, but her health
deteriorated around that time, potentially due to complications from a surgery and two

car accidents (Tr. 39). Plaintiff discussed how she sought part time employment after that
date but was unable to maintain a position because she couldn’t stand on her feet for long
periods of time and couldn’t hold serving trays (Tr. 39-40). She said a combination of
issues kept her from performing other jobs, and that the loss of feeling in her hands
prohibited her from writing clearly and was a major factor in her inability to work (Tr.

40). Plaintiff explained how issues with her hands went from being a sporadic problem
to something that she deals with constantly (Tr. 41). When the ALJ asked Plaintiff how
much weight she estimated she could lift with her hands, Plaintiff said five pounds (Tr.
43). The ALJ then asked Plaintiff how she manages day to day activities (Tr. 44). Plaintiff
said she cannot really cook but sometimes can make herself a sandwich and that she does

laundry once a week if she can (Tr. 44). She also tries to avoid driving due to her
medications, but she is at least somewhat able to manage her own finances (Tr. 44-45).
Charles Turner, a vocational expert, testified as to Plaintiff’s ability to find
employment based upon her limitations (Tr. 52-56). Mr. Turner first explained that based
upon her limitations, Plaintiff was unable to perform past work (Tr. 54). Thereafter, Mr.
Turner testified that Plaintiff could perform several unskilled, sedentary jobs given her

limitations,6 including as a table worker (approx. 10,000 jobs nationally), document
preparer (approx. 16,000 jobs nationally), and a surveillance system monitor (approx.
2,500 jobs nationally). Significantly, the ALJ then asked:
ALJ: Everything the same, but added that on the left upper extremity,
handling and fingering would be limited to occasional. Is that going to then
rule out unskilled sedentary jobs?

Vocational Expert: Well, the monitor job would remain and with the
others, yes. I could not submit any other jobs at the occasional.

(Tr. 54). When Plaintiff’s counsel questioned the vocational expert, he admitted that the
number of surveillance system monitor jobs was “a very low number.” (Tr. 55-56).
THE ALJ’S DECISION
The ALJ followed the five-step analytical framework outlined above. At step one,
the ALJ determined that Plaintiff has not engaged in substantial gainful activity since
December 2, 2017, Plaintiff’s alleged onset date (Tr. 6). At step two, the ALJ found Plaintiff
has the severe impairments of cervical and lumbar degenerative disc disease, left
shoulder acromioclavicular joint arthropathy, carpal tunnel syndrome (CTS),

6 As described to the vocational expert, the ALJ stated the following limitations and factors:

If you do assume a hypothetical person of the claim’s same age, education and past work
experience, assume further an individual able to do work at the sedentary exertional level
I’ll say frequent, rather than constant – doublecheck on thing here – frequent, rather than
constant, handle, finger and feel bilaterally; no ladders, ropes or scaffolds; occasionally
stoop, kneel, crouch, crawl; no more than occasional exposure to hazards such as
unprotected heights, moving mechanical parts; mentally able to perform simple and
routine tasks; able to interact with the public and with coworkers on an occasional basis.

(Tr. 54-54).
fibromyalgia, anxiety disorder and adjustment disorder (Tr. 7). The ALJ also found
Plaintiff has numerous medically determinable non-severe medical impairments

including migraines, celiac disease, Hashimoto’s thyroiditis, and seizure disorder (Tr. 7).
At step three, the ALJ held that none of Plaintiff’s impairments, alone or in combination,
met or medically equaled a listed impairment in 20 C.F.R. Part 404, Subpart
P, Appendix 1. (Tr. 7-9). As it relates to the use of her upper extremities, the ALJ stated:
The claimant does not meet listings 1.15, 1.16 or 1.18. There is no evidence
indicating the claimant cannot perform fine and gross movements with at
least one upper extremity due to a combination of extremity-related
limitations and the use of a medically necessary mobility device.
Specifically, examinations showed some deficits in his grip strength and
ability to manipulate objects but there was no documented need for an
assistive device requiring the use of both hands (Exhibits 5F/1-25, 7F/23,
9F/1, 9F/45-55, 13F).

(Tr. 7).

Before turning to step four, the ALJ analyzed Plaintiff’s RFC (Tr. 9-16). Specifically,
the ALJ found:
After careful consideration of the entire record, the undersigned finds that
the claimant has the residual functional capacity to perform sedentary work
as defined in 20 CFR 404.1567(a) and 416.967(a) except she is able to
frequently balance and occasionally climb ramps or stairs, stoop, kneel,
crouch and crawl but never climb ladders, ropes or scaffolds. She is able to
frequently reach, handle and finger with her bilateral upper extremities.
She must avoid more than occasional exposure to hazards such as
unprotected heights and moving mechanical parts. She is able to perform
simple and routine tasks and interact with co-workers and the public on an
occasional basis.

(Tr. 9). In reaching this conclusion, the ALJ stated that “the claimant’s statements
concerning the intensity, persistence and limiting effects of these symptoms are not
entirely consistent with the medical evidence and other evidence in the record for the
reasons explained in this decision.” (Tr. 10).

Significantly, in evaluating Plaintiff’s RFC, the ALJ repeatedly relied upon
evidence supporting the conclusion that the claimant maintains good strength in her
upper extremities (Tr. 13). Accordingly, the ALJ found the upper extremity manipulative
limitations and pushing and pulling limitations to be inappropriate or excessive (Tr. 13-
15).7 In pertinent part, the ALJ held:
Since the protective filing date, the opinion of Dr. Peterson is persuasive
with regard to limiting the claimant to sedentary work with additional
postural, manipulative and environmental limitations because it is
generally supported by a review and summary of the evidence available at
the time of the opinions; however, the undersigned finds pushing and
pulling limitations are not appropriate because the claimant has good
strength in her upper extremities. The undersigned also finds Dr. Peterson’s
left upper extremity manipulative limitations are excessive and there is no
support for the limitations regarding exposure to temperature extremes,
wetness, humidity, vibration, pulmonary irritants. The undersigned finds
she is able to perform sedentary work with additional postural limitations.
She is able to frequently reach, handle and finger with her bilateral upper
extremities but she must avoid more than occasional exposure to hazards.
This is consistent with the claimant’s treatment notes that show diminished
range of motion in her cervical spine and left shoulder, but she had good
strength in her upper extremities. There was also tenderness in her lumbar
spine and her range of motion was painful, but she ambulated with a
normal gait. There was evidence of right CTS and cervical radiculopathy,
but examinations showed no deficits in her grip strength or ability to
manipulate objects with her hands (Exhibits 5F/1-26, 7F/12, 7F/23, 9F/1,
9F/45-55, 12F/1, 24F/6, 28F/32). Although a consultative examiner noted
diminished sensation in her hands and she had difficulty picking up a
coin/manipulating objects, her muscle and grip strength was only mildly
diminished (Exhibit 13F).

7 Notably, the ALJ found Dr. Peterson’s “left upper extremity manipulative limitations” to be excessive (Tr.
13). However, Dr. Peterson also imposed an exertional limitation of occasional for fingering (fine
manipulation) with Plaintiff’s right hand (Tr. 73). While the ALJ later stated that he found Plaintiff could
frequently reach, finger, and handle with both upper extremities, he failed to provide a specific explanation
for why he was disregarding Dr. Peterson’s exertional limitation for fingering with Plaintiff’s right hand.
(Tr. 12-13). Additionally, the ALJ rejected the findings of Dr. Jones and Dr. Ryan
regarding limitations on the use of Plaintiff’s upper extremities and pushing/pulling for
the exact same reasons (Tr. 13-14).
The ALJ also reviewed Dr. Tin’s and Dr. Yapondjian-Alvarado’s findings
regarding Plaintiff’s severe mental impairments (Tr. 14-16). Notably, the ALJ found most

of their opinions to be persuasive but distinguished from them by finding that, since the
protective filing date, Plaintiff is able to interact with co-workers and the public on an
occasional basis (Tr. 14). The ALJ reached this conclusion because, among other reasons,
Plaintiff presented herself as cooperative and pleasant to her medical care providers (Tr.
14-15). The ALJ’s decision also stated that Plaintiff could perform simple and routine

tasks (Tr. 15).
The ALJ found inconsistencies between Plaintiff’s medically determinable
impairments and some of her alleged symptoms. The ALJ explained:
While her medically determinable impairments could reasonably be
expected to produce some of the alleged symptoms, the objective medical
evidence does not reasonably substantiate her allegations about intensity,
persistence and functionally limiting effects of the symptoms. The claimant
testified she has neck and left shoulder pain that makes it difficult to lift
more than five pounds, but she is able to do laundry.

(Tr. 15). The ALJ also reemphasized that Plaintiff had “good muscle and grip strength in
her upper extremities.” (Tr. 15).
At step four, the ALJ determined that Plaintiff is unable to perform any past
relevant work as a chief computer programmer (Tr. 16). The ALJ then noted that Plaintiff
was 40 years old at the alleged onset date, and subsequently changed age category to a
younger individual age 45 to 49 (Tr. 16). Finally, at step five, the ALJ concluded that in
light of Plaintiff’s age, education, work experience, and RFC,8 “there are jobs that exist in

significant numbers in the national economy that [Plaintiff] can perform.” (Tr. 16).
Specifically, the ALJ relied upon the vocational expert’s testimony that given Plaintiff’s
age, education, work experience, and RFC, she could be employed as a table worker
(approx. 10,000 positions nationally), document preparer (approx. 16,000 positions
nationally), and surveillance system monitor (approx. 2,500 positions nationally) (Tr. 17).
Therefore, the ALJ concluded that a finding of “not disabled” was appropriate (Tr. 17).

ISSUES RAISED BY PLAINTIFF
In her brief, Plaintiff raises the following issue:
1. The Administrative Law Judge failed to build a logical bridge from the
evidence to his conclusions when considering the opinions from multiple
state agency medical consultants.

DISCUSSION
Plaintiff argues the ALJ erred by disregarding the opinions of the state agency
medical consultants regarding exertional limitations upon the use of her upper
extremities (Doc. 16, p. 7). Accordingly, Plaintiff avers that the ALJ failed to build a logical

8 Again, the ALJ determined Plaintiff’s RFC to be:

[Plaintiff] has the residual functional capacity to perform sedentary work as defined in 20
CFR 404.1567(a) and 416.967(a) except she is able to frequently balance and occasionally
climb ramps or stairs, stoop, kneel, crouch and crawl but never climb ladders, ropes or
scaffolds. She is able to frequently reach, handle and finger with her bilateral upper
extremities. She must avoid more than occasional exposure to hazards such as unprotected
heights and moving mechanical parts. She is able to perform simple and routine tasks and
interact with co-workers and the public on an occasional basis.

(Tr. 9).
bridge between the evidence and his conclusion related to the use of her upper
extremities (Id.). Plaintiff contends that as a result of this error, the ALJ relied on jobs she

could not perform in reaching his conclusion that a significant number of jobs exist in the
national economy that Plaintiff is capable of performing (Id. at pp. 7-8).
In response, the Commissioner argues the ALJ reasonably considered the prior
administrative medical findings in reaching his conclusion (Doc. 22, p. 4). The
Commissioner further claims that the ALJ’s decision to impose limitations different from
those suggested by the state agency medical consultants was supported by evidence in

the record (Id. at p. 5). The Commissioner concludes by emphasizing that even if
reasonable minds could differ as to whether Plaintiff is disabled, the ALJ’s decision must
stand so long as it is supported by substantial evidence (Id. at p. 7-8).
The ALJ relied on the same exhibits and used the same language each time to
explain why he decided to impose different limitations than those suggested by each of

the three medical consultants. In pertinent part, the ALJ stated:
The undersigned also finds Dr. Peterson’s left upper extremity
manipulative limitations are excessive and there is no support for the
limitations regarding exposure to temperature extremes, wetness,
humidity, vibration, pulmonary irritants. The undersigned finds she is able
to perform sedentary work with additional postural limitations. She is able
to frequently reach, handle and finger with her bilateral upper extremities
but she must avoid more than occasional exposure to hazards. This is
consistent with the claimant’s treatment notes that show diminished range
of motion in her cervical spine and left shoulder, but she had good strength
in her upper extremities. There was also tenderness in her lumbar spine and
her range of motion was painful, but she ambulated with a normal gait.
There was evidence of right CTS and cervical radiculopathy, but
examinations showed no deficits in her grip strength or ability to
manipulate objects with her hands (Exhibits 5F/1-26, 7F/12, 7F/23, 9F/1,
9F/45-55, 12F/1, 24F/6, 28F/32). Although a consultative examiner noted
diminished sensation in her hands and she had difficulty picking up a
coin/manipulating objects, her muscle and grip strength was only mildly
diminished (Exhibit 13F).

Tr. 13-14.
In analyzing whether the ALJ relied upon substantial evidence to support his
conclusion, the Court has extensively reviewed the exhibits cited by the ALJ to reach his
conclusion. Exhibit 5F/1-26 contains office treatment records from 2/1/2019 to
9/26/2019 (Tr. 558-83). The majority of the cited records in Exhibit 5F discuss pain
injection procedures (Tr. 558-81). The final two cited pages of 5F support the ALJ’s
conclusion that there was evidence of right carpal tunnel syndrome and cervical
radiculopathy (a pinched nerve) (Tr. 582-83). Exhibit 5F does not, however, provide any
support for the ALJ’s conclusion regarding Plaintiff’s strength in her upper extremities.
Similarly, Exhibit 7F/12 is a new patient consult report from 12/22/2017 that documents
Plaintiff’s lower back pain but does not discuss her upper extremities (Tr. 720). Exhibit

7F/23 is a 7/7/2018 urgent care report that again documents Plaintiff’s lower back pain
but provides no meaningful discussion of Plaintiff’s upper extremities (Tr. 731).9
Exhibit 9F/1 is Dr. Reynold’s 10/16/2020 new patient report, and the only
reference it includes to Plaintiff’s extremities is that Plaintiff reported her “hands and feet

9 The Commissioner points out that a later page in this urgent care report may support the argument that
Plaintiff had strong grip strength (Doc. 22, p. 6; see also Tr. 734). While this page of the report does note
“grip strong,” the Court notes that the ALJ cited to a different page in this report when his pinpoint citations
make it clear he was not simply referencing the first page of each report. See Spiva v. Astrue, 628 F.3d 346,
348 (7th Cir. 2010) (“The government’s lawyers who defend denials of disability benefits often rely heavily
on evidence not (so far as appears) relied on by the administrative law judge, and defend the tactic by
invoking an overbroad conception of harmless error.”); Larson v. Astrue, 615 F.3d 744, 749 (7th Cir. 2010)
(reasons not apparent in the ALJ’s opinion cannot be relied upon by the Commissioner on appeal).
swell when waking up in the morning-takes 2 hours for them to go down.” (Tr. 954).10
Exhibit 9F/45-55 contains additional medical records from Plaintiff’s appointments with

Dr. Reynolds that were conducted over the phone (Tr. 998-1008). The only potential
reference to Plaintiff’s upper extremities in these appointment records comes from a self-
report by Plaintiff related to peripheral neuropathy, wherein it is stated that Plaintiff
experiences tingling and weak limbs (Tr. 1007). Exhibit 12F/1 is a 10/6/2020 new patient
report that discusses several of Plaintiff’s issues but does not mention her upper
extremities (Tr. 1080). Furthermore, Exhibit 24F/6 is a 12/9/2021 report which

documents that Plaintiff was seen for trigger point injections (Tr. 1319). Similarly, Exhibit
28F/32 is the first page of a 2022 appointment report documenting more trigger point
injections (Tr. 1478). Accordingly, none of the above-cited records provide support for
the ALJ’s conclusion that the limitations imposed upon the use of Plaintiff’s left upper
extremity were excessive.

Finally, the ALJ cites to portions of Exhibit 13F in support of his determination.
Exhibit 13F is a West Park Medical Clinic Report from November 2020 (Tr. 1087-95).
Regarding her upper extremities, this report first states “She had some mild difficulties
picking up a penny off of the table with her right hand. She had moderate difficulties
doing this with her left hand.” (Tr. 1088). The following page notes that “[t]he patient

10 The Commissioner again points out that a later page in Exhibit 9F included a physical examination and
noted “normal movement of all extremities.” (Doc. 22, p. 6; see also Tr. 956). The Court again finds it
concerning that the ALJ chose to cite to a different page of this report to support his conclusion.
See Wiersma v. Astrue, No. 10-C-240, 2010 WL 5095318, at *10 (E.D. Wis. Dec. 8, 2010) (“[I]t is the ALJ, not
the Commissioner’s lawyers, who must build an accurate and logical bridge from the evidence to the
conclusion.”).
could oppose the thumb to each finger in both hands. Pinch strength, arm, leg and grip
strength were 4+/5 throughout.” (Tr. 1089). The report continues by stating Plaintiff

notes numbness to her hands and again reiterates the mild and moderate difficulties she
had picking up a small object with her right and left hand, respectively (Tr. 1089).
Thereafter, there is a table documenting fine and gross manipulative movements of
Plaintiff’s hands and fingers (Tr. 1091). The table recorded the mild difficulties Plaintiff
had in using her right hand and the moderate difficulties in using her left hand when it
came to picking up a coin, picking up and holding a cup, buttoning/unbuttoning,

zipping/unzipping, and tying shoelaces (Tr. 1091). It also noted her grip strength was
4+/5 (Tr. 1091). With the exception of documenting Plaintiff’s shoulder range of motion,
the remainder of Exhibit 13F did not include any completed range of motion
examinations regarding Plaintiff’s upper extremities (Tr. 1092-95).
Ultimately, other than referencing Exhibit 13F, the ALJ failed to cite to any

evidence that could have potentially supported his conclusion that the exertional
limitations imposed upon Plaintiff’s upper extremities by all three medical consultants
were excessive (at least in regard to their opinions for the time period after 5/1/20).11
This is particularly concerning because the ALJ appears to have cherry-picked favorable
portions of Exhibit 13F related to grip strength and arm strength, while discrediting or

ignoring portions of that same exhibit that demonstrated deficiencies in Plaintiff’s use of

11 Moreover, it is noteworthy that the ALJ cited to Exhibit 13F to acknowledge and refute that report’s
findings related to Plaintiff’s diminished ability to use her hands, rather than to support his prior statement
that Plaintiff has good strength in her upper extremities (Tr. 13-14).
her upper extremities (and her left upper extremity in particular). See, e.g., Denton v.
Astrue, 596 F.3d 419, 425 (7th Cir. 2010) (“An ALJ has the obligation to consider all

relevant medical evidence and cannot simply cherry-pick facts that support a finding of
non-disability while ignoring evidence that points to a disability finding.”); Pamela T. v.
Saul, No. 18 CV 50173, 2020 WL 550604, at *4 (N.D. Ill. Feb. 4, 2020) (remanding because,
among other reasons, the ALJ cherry-picked favorable statements from within a single
document).
Here, the ALJ erred by rejecting the findings of all three medical consultants to

substitute in his own determination that Plaintiff could use her upper extremities at an
increased level. In reaching his conclusion, the ALJ specifically stated that
“examinations show no deficits in her grip strength or ability to manipulate objects with
her hands.” (Tr. 13). However, as discussed above, the records the ALJ cites to do not
support this conclusion. In fact, although Exhibit 13F notes a 4+/5 in grip strength, it is

hard to understand how a score of less than 5/5 could be considered as having “no
deficit.”12 Furthermore, contrary to the ALJ’s assertions, Exhibit 13F provides clear
evidence that Plaintiff has mild and/or moderate difficulties in manipulating objects with
her hands (Tr. 1091). Tellingly, the ALJ did not cite to any other report or study that
contradicted this finding and he also failed to provide any reason why this portion of

Exhibit 13F should be discredited while other portions of the same exhibit should be

12 Conspicuously, the ALJ actually contradicted this statement earlier on in his decision, when he stated,
“examinations showed some deficits in his grip strength and ability to manipulate objects but there was no
documented need for an assistive device requiring the use of both hands.” (Tr. 7) (emphasis added).
heavily relied upon. “The ALJ must confront the evidence that does not support her
conclusion and explain why that evidence was rejected.” Moore v. Colvin, 743 F.3d 1118,

1123 (7th Cir. 2014).
At most, the ALJ cited and relied upon some evidence for his conclusion that
Plaintiff had good grip and arm strength (Tr. 1091). However, as discussed above, the
ALJ did not provide sufficient evidence demonstrating good control and strength of
Plaintiff’s upper extremities as a whole, which was essential to his conclusion that the
recommended limitations imposed upon the use of Plaintiff’s upper extremities were

excessive. The Court rejects the ALJ’s attempt to equate good grip and arm strength with
the ability to handle and finger frequently. See Springer v. Saul, No. 2:19-CV-197-JEM, 2020
WL 4932539, at *4 (N.D. Ind. Aug. 24, 2020) (while records cited to by the ALJ may have
supported his conclusion that treatment offset some of the plaintiff’s ailments, he failed
to build a logical bridge as to how treatments alleviated issues in her hands specifically).

Similarly, the Court also questions the ALJ’s determination that pushing and pulling
limitations were “not appropriate because the claimant has good strength in her upper
extremities.” (Tr. 13).13
“When an ALJ denies benefits, he must build an ‘accurate and logical bridge from
the evidence to [the] conclusion,’ and he may not ‘play doctor’ by using his own lay

13 Specifically, is it unclear whether the medical consultants’ pushing and pulling limitations were imposed
due to Plaintiff’s decreased sensation in and ability to control her hands, and not due to a lack of general
grip or arm strength. Conversely, the Court questions whether it is fair to assume that the pushing and
pulling limitations were due to Plaintiff’s upper extremity limitations at all. In fact, when considering
Plaintiff’s clear history of neck and back impairments, it seems just as conceivable that the pushing and
pulling limitations were imposed due to those impairments.
opinions to fill evidentiary gaps in the record[.]” Chase v. Astrue, 458 F. App’x 553, 556-57
(7th Cir. 2012) (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)). Here, the ALJ

filled in evidentiary gaps related to Plaintiff’s ability to manipulate her upper extremities
by relying upon his own opinion that good grip and arm strength evinces an ability to
frequently handle and finger. See Blakes ex rel. Wolfe v. Barnhart, 331 F.3d 565, 570 (7th Cir.
2003) (“[A]n ALJ may not rely on a hunch.”). Revealingly, the ALJ failed to cite to any
evidentiary, statutory, or precedential support for such a contention and the Court doubts
any such support exists. See Stephen R. S. v. Comm’r of Soc. Sec., No. 3:20-CV-01160-GCS,

2022 WL 897188, at *7 (S.D. Ill. Mar. 28, 2022) (“Furthermore, even if the ALJ
appropriately relied on Plaintiff’s medical records to craft his RFC, he provides no
explanation as to why the ability to play cards supports finding that Plaintiff can handle
gross manipulation frequently with the left upper extremity, or why it supports finding
that he could perform fingering that is fine manipulation of items no smaller than the size

of a paperclip frequently.”).
Additionally, the ALJ appears to rely upon Plaintiff’s ability to sometimes do
laundry as evidence that she can use her upper extremities and perform work at the
sedentary level (Tr. 15). However, in discussing Plaintiff’s ability to perform some
household activities such as doing laundry, the ALJ failed to address the limitations

Plaintiff stated she faced in performing such tasks. See Latoria v. Astrue, No. 12 C 1097,
2013 WL 438120, at *20 (N.D. Ill. Feb. 5, 2013) (“Thus, the ALJ cannot consider a claimant’s
household activities but ignore the limitations the claimant faces in performing them.”)
(internal citations and quotation marks omitted). Here, when discussing laundry,
Plaintiff stated she does it once a week, “if she can.” (Tr. 44). As such, the Court believes
it is inappropriate to take evidence that Plaintiff can sometimes do laundry as evidence

that she can consistently perform work at the sedentary level. See Stephen R. S., 2022 WL
897188 at *7.
Consequently, without relying upon sufficient evidence in support of his
determinations, the Court finds the ALJ erred in determining that Plaintiff could
frequently reach, handle and finger with her upper extremities. Significantly, this
resulted in more than mere harmless error because the only position Plaintiff could

perform with increased limitations on the use of her upper extremities was surveillance
system monitor. According to the vocational expert, that position has approximately
2,500 jobs in the national economy (Tr. 54). Undoubtedly, this “very low number” (Tr. 56)
falls well short of constituting a significant number of jobs in the national economy.14 See
Richard J. N. v. Kijakazi, No. 20 C 245, 2021 WL 6063912, at *12 (N.D. Ill. Dec. 22, 2021)

(compiling a list of cases analyzing what is considered a significant number of jobs); James
A. v. Saul, 471 F. Supp. 3d 856, 860 (N.D. Ind. 2020) (“The Court concludes that, as a matter
of law, 14,500 jobs, or approximately 1 out of every 10,000 jobs, in the national economy
is not a significant number of jobs.”).
Furthermore, while the Court is convinced that remand is appropriate based upon

the evidentiary shortcomings alone, the Court will touch briefly on its concerns regarding

14 Notably, Plaintiff has not challenged the adequacy of the combined number of jobs available nationally
as a table worker, document preparer, and surveillance system monitor. Consequently, the Court will not
address the question of whether 28,500 positions nationally is a significant number of jobs.
the occupations of both table worker and document preparer. Significantly, a limitation
the ALJ imposed was that Plaintiff was to avoid hazardous moving machinery (Tr. 9).

Yet, as one court recently pointed out:
For example, a table worker is defined as one who ‘[e]xamines squares
(tiles) of felt-based linoleum material passing along on conveyor and
replaces missing and substandard tiles.’ DOT 739.687-182 (Table Worker
(fabrication, nec) alternate titles: spotter). Yet the ALJ provided the VE with
the limitation of no hazardous moving machinery. [Dkt. 12-8 at 75.] The
Court is unsure how this limitation could coexist with a job requiring direct
contact with a moving conveyor.

Jeanette P. v. Kijakazi, No. 120CV03309MJDJMS, 2022 WL 557126, at *8 (S.D. Ind. Feb. 24,
2022). While the Court need not fully address this contention at this time, the Court notes
this concern regarding the occupation of table worker and its relation to hazardous
moving machinery, so that it can be considered upon on remand. See Penny P. v. Kijakazi,
No. 21-CV-1055-SPM, 2022 WL 1289355, at *6 (S.D. Ill. Apr. 29, 2022) (“In sum, the ALJ’s
‘blind reliance on the vocational expert’s testimony’ does not constitute a reasoned
analysis of plaintiff’s disability application.”).
Similarly, regarding the position of document preparer, the Court questions
whether the position of document preparer is still a viable job or now obsolete in light of
technological advances. See Browning v. Colvin, 766 F.3d 702, 709 (7th Cir. 2014) (“No
doubt many of the jobs [listed in the Dictionary of Occupational Titles] have changed and
some have disappeared.”). In analyzing the position of document preparer, one court has
explained:
That concern is particular relevant in this case, where one of the jobs
described by the VE, that of document preparer, microfilming, is described
as follows:
Prepares documents, such as brochures, pamphlets, and catalogs, for
microfilming, using paper cutter, photocopying machine, rubber stamps,
and other work devices: Cuts documents into individual pages of standard
microfilming size and format when allowed by margin space, using paper
cutter or razor knife. Reproduces document pages as necessary to improve
clarity or to reduce one or more pages into single page of standard
microfilming size, using photocopying machine. Stamps standard symbols
on pages or inserts instruction cards between pages of material to notify
[microfilm camera operator] of special handling, such as manual
repositioning, during microfilming. Prepares cover sheet and document
folder for material and index card for company files indicating information,
such as firm name and address, product category, and index code, to
identify material. Inserts material to be filmed in document folder and files
folder for processing according to index code and filming priority schedule.

DOT 249.587-018. The job of preparing documents for microfilm
preservation is one that seems particularly likely to have changed in the last
37 years given the shift to digital storage and advances in scanning
technology.

Dearth v. Berryhill, No. 2:16-CV-487-JEM, 2018 WL 1225045, at *4 (N.D. Ind. Mar. 9, 2018).
Similar concerns have been expressed by judges within this district. See Penny P. v.
Kijakazi, No. 21-CV-1055-SPM, 2022 WL 1289355, at *5 (S.D. Ill. Apr. 29, 2022). Again, the
Court notes its concern with this occupation so that it may be adequately considered on
remand.
In conclusion, the Court holds that the ALJ’s decision was not supported by
substantial evidence and the ALJ’s discussion of that evidence was not sufficient to
provide a logical bridge between the evidence and his conclusions. See Terry v. Astrue,
580 F.3d 471, 475 (7th Cir. 2009). Accordingly, remand is proper so the ALJ can reconsider
the evidence and provide a logical bridge between that evidence and his conclusions.
The Court wishes to stress that this Memorandum and Order should not be
construed as an indication that the Court believes Plaintiff was disabled or that she
should be awarded benefits. To 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 applications for DIB and SSI
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: February 29, 2024
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/10157399. Public record. Not legal advice.