Reed v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

NICHOLE R.1, )

)

Plaintiff, )

)

v. ) CIVIL NO. 3:20cv892

)

KILOLO KIJAKAZI, )

Commissioner of Social Security, )

)

Defendant. )

OPINION AND ORDER

This matter is before the court for judicial review of a final decision of the defendant

Commissioner of Social Security Administration denying Plaintiff's application a period of

disability and for Disability Insurance Benefits (DIB) under Title II of the Social Security Act. 42

U.S.C. § 423(d). Section 405(g) of the Act provides, inter alia, "[a]s part of his answer, the

[Commissioner] shall file a certified copy of the transcript of the record including the evidence

upon which the findings and decision complained of are based. The court shall have the power

to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or

reversing the decision of the [Commissioner], with or without remanding the case for a

rehearing." It also provides, "[t]he findings of the [Commissioner] as to any fact, if supported by

substantial evidence, shall be conclusive. . . ." 42 U.S.C. §405(g).

The law provides that an applicant for disability insurance benefits must establish an

"inability to engage in any substantial gainful activity by reason of any medically determinable

physical or mental impairment which can be expected to last for a continuous period of not less

than 12 months. . . ." 42 U.S.C. §416(i)(1); 42 U.S.C. §423(d)(1)(A). A physical or mental

1 To protect privacy, Plaintiff’s full name will not be used in this Order.

impairment is "an impairment that results from anatomical, physiological, or psychological

abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic

techniques." 42 U.S.C. §423(d)(3). It is not enough for a plaintiff to establish that an

impairment exists. It must be shown that the impairment is severe enough to preclude the

plaintiff from engaging in substantial gainful activity. Gotshaw v. Ribicoff, 307 F.2d 840 (7th

Cir. 1962), cert. denied, 372 U.S. 945 (1963); Garcia v. Califano, 463 F.Supp. 1098 (N.D.Ill.

1979). It is well established that the burden of proving entitlement to disability insurance

benefits is on the plaintiff. See Jeralds v. Richardson, 445 F.2d 36 (7th Cir. 1971); Kutchman v.

Cohen, 425 F.2d 20 (7th Cir. 1970).

Given the foregoing framework, "[t]he question before [this court] is whether the record

as a whole contains substantial evidence to support the [Commissioner’s] findings. Scott v.

Astrue, 734, 739 (7th Cir. 2011); 42 U.S.C. §405(g). "Substantial evidence is defined as 'more

than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.'" Rhoderick v. Heckler, 737 F.2d 714, 715 (7th Cir. 1984)

quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1410, 1427 (1971); see also Jones v.

Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010). "If the record contains such support [it] must [be]

affirmed, 42 U.S.C. §405(g), unless there has been an error of law." Garfield, supra at 607; see

also Schnoll v. Harris, 636 F.2d 1146, 1150 (7th Cir. 1980).

In the present matter, after consideration of the entire record, the Administrative Law

Judge (“ALJ”) made the following findings:

1. The claimant meets the insured status requirements of the Social Security Act

through December 31, 2023 (10D).

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2. The claimant has not engaged in substantial gainful activity since December 12,

2017, the alleged onset date (20 CFR 404.1571 et seq.).

3. The claimant has the following severe impairments: epilepsy; disorders of the

cervical and lumbar spine (with radiculopathy); major dysfunction of the right

shoulder; fibromyalgia; anxiety; depression; and posttraumatic stress disorder

(“PTSD”) (20 CFR 404.1520(c)).

4. The claimant 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 (20 CFR 404.1520(d), 404.1525 and 404.1526).

5. After careful consideration of the entire record, I find that the claimant has the

residual functional capacity to perform sedentary work as defined in 20 CFR

404.1567(a) except the claimant can occasionally climb ramps and stairs; the

claimant cannot climb ladders, ropes, or scaffolds; the claimant can occasionally

balance (on uneven terrain and slippery surfaces); the claimant can occasionally

stoop, kneel, crouch, and crawl; the claimant cannot have exposure to extreme

cold, vibration, vibrating tools, unprotected heights, or moving mechanical parts;

the claimant cannot operate a motor vehicle within the scope of employment (due

to her history of seizures); the claimant can only engage in occasional operation of

foot controls and occasional pushing and pulling with the bilateral lower

extremities; the claimant requires the ability to alternate between sitting and

standing at will at the workstation, which would not take her off task more than

10% of the workday (essentially, the claimant requires jobs that can be performed

either sitting or standing at her option); and the claimant is limited to work

involving only simple, routine tasks in an environment free from fast-paced

production work (such as an assembly wherein all tasks must be completed within

strict timeframes).

6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).

7. The claimant was born on March 2, 1977 and was 40 years old, which is defined

as a younger individual age 18-44, on the alleged disability onset date (20 CFR

404.1563).

8. The claimant has at least a high school education and is able to communicate in

English (20 CFR 404.1564).

9. Transferability of job skills is not an issue in this case because the claimant’s past

relevant work is unskilled (20 CFR 404.1568).

10. Considering the claimant’s age, education, work experience, and residual

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functional capacity, there are jobs that exist in significant numbers in the national

economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a)).

11. The claimant has not been under a disability, as defined in the Social Security Act,

from December 12, 2017, through the date of this decision (20 CFR 404.1520(g)).

(Tr. 25-38).

Based upon these findings, the ALJ determined that Plaintiff was not entitled to disability

benefits. The ALJ’s decision became the final agency decision when the Appeals Council denied

review. This appeal followed.

Plaintiff filed her opening brief on August 23, 2021. On October 4, 2021, the defendant

filed a memorandum in support of the Commissioner’s decision to which Plaintiff replied on

November 10, 2021. Upon full review of the record in this cause, this court is of the view that

the ALJ’s decision must be remanded.

A five-step test has been established to determine whether a claimant is disabled. See

Singleton v. Bowen, 841 F.2d 710, 711 (7th Cir. 1988); Bowen v. Yuckert, 107 S.Ct. 2287, 2290-

91 (1987). The United States Court of Appeals for the Seventh Circuit has summarized that test

as follows:

The following steps are addressed in order: (1) Is the claimant

presently unemployed? (2) Is the claimant's impairment "severe"?

(3) Does the impairment meet or exceed one of a list of specific

impairments? (4) Is the claimant unable to perform his or her

former occupation? (5) Is the claimant unable to perform any other

work within the economy? An affirmative answer leads either to

the next step or, on steps 3 and 5, to a finding that the claimant is

disabled. A negative answer at any point, other than step 3, stops

the inquiry and leads to a determination that the claimant is not

disabled.

Nelson v. Bowen, 855 F.2d 503, 504 n.2 (7th Cir. 1988); Zalewski v. Heckler, 760 F.2d 160, 162

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n.2 (7th Cir. 1985); accord Halvorsen v. Heckler, 743 F.2d 1221 (7th Cir. 1984). From the nature

of the ALJ's decision to deny benefits, it is clear that step five was the determinative inquiry.

Plaintiff alleges severe epilepsy; disorders of the cervical and lumbar spines with

radiculopathy; major dysfunction of the right shoulder; fibromyalgia; anxiety; depression; and

PTSD. (Tr. 26.) In October 2019, Jillorna A. Uceny, LCSW opined that Plaintiff had extreme

limitations in understanding detailed instructions and marked limitations in remembering

locations and very short and simple instructions, accepting instructions and responding

appropriately to criticism from supervisors, getting along with co-workers or peers without

distracting them or exhibiting behavioral extremes, and taking precautions against hazards. (Tr.

874-75.) Plaintiff also had extreme limitations in setting realistic goals or making plans

independently of others. (Tr. 875.) Plaintiff did not get along with co-workers during her last two

years of employment and her physical limitations impacted her mental capacity. (Tr. 875.)

Plaintiff also fatigued easily. (Tr. 875.) Plaintiff would be absent four days or more per month.

(Tr. 876.)

Non-examining State agency reviewing doctors Kenneth Neville, Ph.D. and M. Brill,

M.D. opined in October 2018 that Plaintiff had severe epilepsy and spine disorders as well as

non-severe depression resulting in mild limitations in concentrating, persisting, or maintaining

pace. (Tr. 82.) Dr. Brill opined that Plaintiff could perform light work with postural and

environmental limitations. (Tr. 84-85.) Joelle J. Larsen, Ph.D. and Mangala Hasanadka, M.D.

affirmed the opinions in December 2018. (Tr. 94-99.)

In support of remand, Plaintiff first argues that the ALJ did not properly evaluate opinion

evidence. The ALJ found LCSW Ms. Uceny’s opinion not persuasive. The ALJ opined that the

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opinion was not generally supportable and not consistent with other record evidence. (Tr. 35.)

The ALJ noted that while Plaintiff consistently presented with a depressed and anxious mood, her

thought process was normal, she was oriented, and her memory was normal. (Tr. 35.) The ALJ

also noted that neuropsychological testing had not been ordered and that Plaintiff had not been

referred to a psychiatric specialist. (Tr. 35.) The ALJ also noted no memory, concentration, and

orientation deficits and alert, cooperative, and engaged findings on exams and that Plaintiff

denied suicidal ideation and had not been hospitalized for psychiatric purposes. (Tr. 35.) Plaintiff

had been treated fairly conservatively for her impairments as well, with medications and

individual therapy, resulting in a stable symptomology. (Tr. 35.)

Plaintiff contends that the ALJ made a mistake of fact in evaluating Ms. Uceny’s opinion.

Plaintiff points out that in contrast to the ALJ’s conclusion that the record only showed normal

thought process, the record frequently showed a disorganized thought process. (Tr. 357, 447-49,

451-53, 639, 643, 647, 666.) See Sarchet v. Chater, 78 F.3d 305, 309 (7th Cir. 1996) (mistakes of

fact compel remand). The ALJ noted that the record contained both abnormal findings of anxious

and depressed mood, as well as normal findings such as full orientation, cooperation, and normal

memory. (Tr. 35.) Plaintiff contends that the ALJ failed to explain why those abnormal findings

were outweighed by the normal ones, nor why the abnormal findings in question did not render

the opinion sufficiently supported by and consistent with the overall record. O'Connor-Spinner v.

Astrue, 627 F.3d 614, 621 (7th Cir. 2010) (“An ALJ must explain why he does not credit

evidence that would support strongly a claim of disability, or why he concludes that such

evidence is outweighed by other evidence”); Scott v. Barnhart, 297 F.3d 589 (7th Cir. 2002).

Plaintiff notes that the record post-dating the last State agency opinion contains findings

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of tearful/sad, anxious, depressed affect, depressed and anxious mood, flight of ideas,

disorganized thought process, and limited impulse control with anger outbursts. (Tr. 638-47, 666,

683, 698.) Plaintiff argues that the ALJ interpreted these findings without expert input, and failed

to explain why these myriad supportive findings did not render Ms. Uceny’s opinion persuasive.

Gerstner v. Berryhill, 879 F.3d 257, 261-62 (7th Cir. 2018) (ALJ fixated on “normal”

examinations in the record and selectively discussed the evidence). The ALJ also remarked that

the record showed that Plaintiff was “alert” upon examinations. (Tr. 35.) Plaintiff contends that

the fact that an individual is alert upon examination simply means that he or she is responsive to

their environment and that a finding that an individual is alert upon examination does not show

that the individual does not have significant concentration limitations. See John P. v. Saul, 2019

WL 4072118 *10 (N.D. Ind. Aug. 28, 2019); Milburg v. Colvin, 2017 WL 1237970 *20 (C.D. Ill.

Jan. 20, 2017).

Plaintiff also objects to the fact that the ALJ speculated that neuropsychological testing or

a referral to a psychiatric specialist were required in order to substantiate the limitations recited in

Ms. Uceny’s opinion. SSR 86-8 (“Reasonable inferences may be drawn, but presumptions,

speculations, and suppositions should not be substituted for evidence”). Plaintiff notes that the

ALJ pointed to no evidence that such referrals were needed to render Ms. Uceny’s opinion more

persuasive. Plaintiff also argues that the fact that Plaintiff denied suicidal ideation and did not

need to be hospitalized also does not render Ms. Uceny’s opinion inconsistent with the record.

Social Security Regulations do not require hospitalization for a severe mental impairment to be

found to be a disabling condition. Baird v. Astrue, 2011 WL 529045 *18 (N.D. Ill. Feb. 3, 2011).

Plaintiff submits that the ALJ—as a layperson—speculated that a psychiatric hospitalization or

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suicidal thoughts were needed to support the opinion where no evidence suggested that that was

the case. Myles v. Astrue, 582 F.3d 672, 677 (7th Cir. 2009) (“‘Common sense can mislead; lay

intuitions about medical phenomena are often wrong’”).

In response, the Commissioner reiterates that the record reflects that at times Plaintiff’s

thought content was reality-based and relevant. However, as Plaintiff points out, reality-based

thought content is not inconsistent with a disorganized thought process. This was a selective

reading of the record, for the ALJ emphasized normal findings while failing to explain why

probative abnormal findings did not support the opinion. Gerstner v. Berryhill, 879 F.3d 257,

261-62 (7th Cir. 2018) (ALJ fixated on “normal” examinations in the record and selectively

discussed the evidence). That the record contains some findings of normal thought process did

not absolve the ALJ from analyzing myriad findings of disorganized thought process. (AR 357,

447-49, 451-53, 639, 643, 647, 666.)

The Commissioner also argues that the ALJ was only required to minimally articulate her

findings and that the ALJ here noted both findings of depressed/anxious mood and certain other

normal findings. However, as Plaintiff has argued, the ALJ committed reversible legal error by

failing to explain why those abnormal findings were outweighed by the normal ones, or why

the abnormal findings in question did not render the opinion sufficiently supported by and

consistent with the overall record. O'Connor-Spinner v. Astrue, 627 F.3d 614, 621 (7th Cir.

2010).

The Commissioner next maintains that the ALJ simply noted the lack of “more invasive”

types of treatment to show that Plaintiff’s treatment was conservative, and that the ALJ did not

speculate that such treatment was required. The Commissioner argues that the ALJ did not

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suggest that neuropsychological testing or referral to a psychiatric specialist were required to

substantiate the limitations opined by Ms. Uceny. However, the plain language of the ALJ’s

decision contradicts this. The ALJ stated that “neuropsychological testing has not been ordered

and it does not appear that the claimant has been referred to a psychiatric specialist.” (AR 35.)

The reasonable conclusion from this remark is that the ALJ found the opinion was unsupported

because of the lack of this treatment.

Accordingly, for the above reasons, remand is required on the issue of the proper

evaluation of the medical opinion evidence.

Next, Plaintiff argues that the ALJ’s mental RFC assessment is not supported by

substantial evidence. The State agency doctors opined that Plaintiff had no severe mental

impairments. (Tr. 82, 94-99.) The ALJ found these opinions not entirely persuasive, and found

that Plaintiff had severe depression, anxiety, and PTSD resulting in moderate limitations in

concentrating, persisting, or maintaining pace and adapting or managing oneself. (Tr. 26, 28-31,

35-36.) The ALJ summarized some treatment notes and then found that Plaintiff was limited to

work involving only simple, routine tasks in an environment free from fast-paced production

work. (Tr. 30-31.)

The ALJ emphasized that Plaintiff exhibited numerous normal mental status

examinations. (Tr. 34-36.) Plaintiff argues that the ALJ erred by speculating as to the meaning of

the normal and abnormal mental health examinations in the record. Plaintiff points out that the

only opinion as to Plaintiff’s mental functionality in the record comes from treating LCSW Ms.

Uceny. (Tr. 874-75.) As noted, the ALJ found that opinion not persuasive. (Tr. 35.) Plaintiff

argues that by rejecting this opinion, the ALJ improperly substituted her lay judgment for that of a

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treating provider. Myles, 582 F.3d at 677; Wilder v. Chater, 64 F.3d 335, 337 (7th Cir. 1995)

(“Severe depression is not the blues. It is a mental illness; and health professionals, in particular

psychiatrists, not lawyers or judges, are the experts on it”).

Plaintiff contends that the ALJ speculatively and selectively focused on certain normal

findings such as Plaintiff being alert, oriented, and cooperative with unremarkable thought

content, goal directed thoughts, and insightful thought process. (Tr. 34-36); Gerstner, 879 F.3d at

261-62; O’Connor-Spinner, 621 F.3d at 627. Plaintiff claims this was in error as the record

contains significant abnormal mental status examinations post-dating the last, December 2018,

State agency opinion. These later examinations evidenced tearful/sad, anxious, depressed affect,

depressed and anxious mood, tearful affect, flight of ideas, disorganized thought process, and

limited impulse control with anger outbursts. (Tr. 638-47, 666, 683, 698.) Plaintiff argues that the

ALJ did not create a logical bridge from these repeatedly abnormal mental status examinations,

especially disorganized thought process on numerous occasions, to the conclusion that Plaintiff

could sustain simple tasks without fast production requirements. Plaintiff points out that she has

alleged frequent panic attacks, mostly in crowded spaces and she had panic attacks twice daily.

(Tr. 67.) She also alleged concentration deficiencies, a need to isolate, and problems remembering

assignments. (Tr. 206, 209.) Plaintiff claims that examination abnormalities support these

allegations and that further examinations reflect additional similar findings of depressed and

anxious mood and affect, disorganized thought process, angry mood and affect, flight of ideas,

and limited insight. (Tr. 357, 359, 363-69, 445-53.) Plaintiff concludes that findings of

disorganized thought process and flight of ideas reasonably support that Plaintiff would not be

able to sustain tasks of any complexity throughout the workday nor meet even an “average”

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workday pace due to panic, a need to isolate, and problems remembering assignments. (Tr. 62,

206, 209, 701-02, 875); Novak v. Berryhill, 2017 WL 1163733 *7 (N.D. Ill. Mar. 29, 2017)

(remanding where the record did not support inference that the claimant could engage in bursts of

processing speed to make up for periods of low productivity throughout the day).

In response, the Commissioner argues that the ALJ cited to relevant evidence that a

reasonable mind would accept as adequate. However, the Commissioner fails to cite to any

portion of the decision where the ALJ linked the cited evidence to the specific RFC limitations as

required by SSR 96-8p. The ALJ may have cited certain normal and abnormal findings, Plaintiff’s

daily activities, and treatment, but the ALJ did not explain why that evidence led to the ultimate

RFC findings in a way that permits judicial review as required by the Ruling’s narrative

discussion mandate. SSR 96-8p. The ALJ simply cited that evidence, then found that Plaintiff

could do the RFC ascribed to her. (Tr. 36.) Garcia v. Colvin, 741F.3d 758, 762 (7th Cir. 2013)

(“No physician testified—no medical records [re]vealed—that Garcia has the residual functional

capacity ascribed to him by the [ALJ]”). Thus, remand is warranted on this issue. In a related

argument, Plaintiff has also alleged that she would be off task more than 10% of a work-day and

would be absent more than four days per month. These allegations should also be considered on

remand.

Next, Plaintiff argues that the ALJ failed to submit “new and potentially decisive” medical

evidence of Plaintiff’s physical condition to expert review. The last State agency opinion in this

case dates to December 2018. (Tr. 98-99.) After that date, evidence of new conditions entered the

record which was not reviewed by a doctor. Specifically, an EMG/NCV from October 2019 was

abnormal in the bilateral lower extremities for chronic axonal lumbar radiculopathy in the left,

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particularly at S1. There was also chronic axonal loss lumbar radiculopathy involving the right S1

root affecting the paraspinal muscle only. (Tr. 889-92.) Plaintiff contends that additional evidence

from 2019 further reflects that the ALJ should have submitted records from Plaintiff’s worsening

condition to medical review. Specifically, an April 2019 examination showed difficulty with

moving from sitting to standing with an unsteady, widened, and antalgic gait as well as lumbar

pain to palpation and range of motion limitations. (Tr. 839.) A May 2019 examination showed

marked asterixis in the arms and legs (Tr. 713.) A September 2019 examination showed moderate

distress and Plaintiff had an antalgic gait with moderately expressed pain behavior. Plaintiff

exhibited moderate lumbar pain to palpation with limited lumbar flexion and extension due to

pain. (Tr. 829.) An examination also showed an antalgic gait with a limp favoring the right leg

and difficulty moving from a sitting to standing position as well as lumbar abnormalities. (Tr.

834.) A lumbar spine imaging study from October 2019 showed lumbar spondylosis and facet

hypertrophy at L4-5. (Tr. 880.)

Plaintiff points out that the State agency doctors were not aware of radiculopathy in her

legs. (Tr. 79-86, 90-99.) Plaintiff argues that this was a new condition and constituted potentially

decisive evidence the ALJ had to submit to medical scrutiny rather than interpreting herself

without expert input. Goins v. Colvin, 764 F.3d 677, 680 (7th Cir. 2014) (new and potentially

decisive medical evidence must be submitted to medical scrutiny). Plaintiff suggests that had the

ALJ submitted this evidence to medical review, a finding of disability may have resulted.

In response, the Commissioner argues that the ALJ considered evidence relating to

Plaintiff’s physical conditions, and notes that “[w]hile the State agency medical consultants did

not have some of this evidence to review, the ALJ did properly consider the evidence of record

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throughout the decision.” The Commissioner remarks that the ALJ found the State agency

doctors’ opinion not entirely persuasive and that the medical evidence received since those

opinions supported a more restrictive RFC due to testimony, a fibromyalgia diagnosis, and to

prevent pain exacerbations. The Commissioner contends that updated opinions were not required

as the record was sufficient to assess Plaintiff’s RFC. According to the Commissioner, the ALJ

did not have to seek additional information, as the ALJ properly cited relevant evidence of

Plaintiff’s physical conditions.

Clearly, the Commissioner’s argument is not supported by Seventh Circuit precedent..

While it was the ALJ’s responsibility to determine the RFC, the ALJ could only have done so by

submitting this new raw medical evidence to review by a medical professional. Akin v. Berryhill,

887 F.3d 314, 317–18 (7th Cir. 2018) (ALJ was not qualified to make his own determination

without the benefit of an expert opinion). Because the State agency doctors did not have this

evidence to review, the ALJ’s RFC was not supported by substantial evidence. Stage v. Colvin,

812 F.3d 1121, 1125 (7th Cir. 2016) (ALJs required to rely on expert opinions instead of

determining the significance of medical findings themselves). Therefore, remand is required.

Next, Plaintiff agues that the ALJ’s physical RFC assessment is not supported by

substantial evidence. The ALJ included a sit/stand option at will at the workstation without being

off-task more than 10% of the workday in the RFC. (Tr. 30.) The ALJ found that the RFC was

appropriate based upon Plaintiff’s fibromyalgia and generalized body pain symptoms as well as

her back and lower extremity pain. (Tr. 34, 36.) The ALJ found that the VE’s testimony was

consistent with the Dictionary of Occupational Titles (“DOT”), noting that while the DOT does

not provide information on sit/stand options, the VE’s testimony based on his knowledge and

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experience was adopted. (Tr. 38.) Plaintiff contends that the VE’s testimony was inconsistent

with the DOT, claiming that the sit/stand option is inconsistent with sedentary work because,

she argues, this permits her to stand more than she sits. Plaintiff further contends that the ALJ did

not recognize this conflict and that this was an error under Social Security Ruling (SSR) 00-4p.

However, Plaintiff’s argument lacks merit. The ALJ found that Plaintiff was capable of sedentary

work, and that she could alternate between sitting and standing at will at the workstation, which

would not take her off task more than 10% of the workday, and the ALJ clarified that essentially,

Plaintiff required jobs that can be performed either sitting or standing at her option (Tr. 30). Thus,

this limitation indicates that Plaintiff can sit or stand at will, and there is no indication that it

permits her to stand more than she sits. This limitation indicates that it is at Plaintiff’s discretion

on whether she chooses to sit or stand.

The ALJ’s hypothetical RFC to the vocational expert during the administrative hearing

included the sit/stand limitation that is identical to the ALJ’s RFC finding (Tr. 30, 73-75). The

vocational expert testified that the sit/stand option and off task behavior is not covered by the

DOT or the SCO, and any vocational judgments that he offered were outside the purview of

those documents was based on his actual knowledge of real jobs in the real world and the

knowledge accrued over thirty plus years as a vocational professional (Tr. 74). The vocational

expert identified three sedentary jobs Plaintiff could perform with the limitations that are

identical to the ALJ’s RFC finding, and the ALJ found Plaintiff could perform these jobs at step

five (Tr. 30, 37, 74-75).

Plaintiff contends that she could not sit for extended periods, and suggests that in

shifting positions she would have to be standing for significant portions of the workday and she

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was not capable of the six hours of sitting envisioned by the definition of sedentary work.

However, the RFC finding indicates that Plaintiff could shift positions at will, and thus does not

indicate that she would sit for extended periods (Tr. 30).

Plaintiff contends that the ALJ erred in failing to include limitations related to her

shoulder impairment in the RFC finding. Plaintiff further argues that the job of document

preparer required frequent reaching and handling while the job of assembler required constant

reaching and handling. However, the other job that Plaintiff was found capable of performing,

video monitor, does not require any manipulative abilities (Tr. 37). Thus, Plaintiff would still be

capable of performing this job even if manipulative limitations were included in the RFC finding.

As there is n error regarding the physical RFC, remand will not be ordered on this point.

Conclusion

On the basis of the foregoing, the decision of the Commissioner is hereby REVERSED

AND REMANDED for further proceedings consistent with this Opinion.

Entered: November 29, 2021.

s/ William C. Lee

William C. Lee, Judge

United States District Court

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