MAXEY v. KIJAKAZI

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

VIVIAN M.,1 )

)

Plaintiff, )

)

v. ) No. 1:21-cv-00686-DML-JRS

)

KILOLO KIJAKAZI, Acting Commissioner )

of Social Security,2 )

)

Defendant. )

Order on Complaint for Judicial Review

Vivian M. filed for supplemental security income ("SSI") from the Social

Security Administration ("SSA") on September 21, 2018, alleging an onset date of

September 21, 2018. [Tr. 15.] Her application was initially denied on January 17,

2019 [Tr. 105], and upon reconsideration on April 30, 2019 [Tr. 117].

Administrative Law Judge Livia Morales (the "ALJ") conducted a hearing on July

21, 2020. [Tr. 34–75.] On August 24, 2020, the ALJ issued a decision that

concluded that Vivian was not disabled. [Tr. 12–27.] The Appeals Council denied

review on January 22, 2021. [Tr. 1.] On March 22, 2020, Vivian timely filed this

1 To protect the privacy interests of claimants for Social Security benefits, and

consistent with the recommendation of the Court Administration and Case

Management Committee of the Administrative Office of the United States Courts,

the Southern District of Indiana uses only first names and last initials of non-

governmental parties in Social Security judicial review opinions.

2 According to Federal Rule of Civil Procedure 25(d), Kilolo Kijakazi automatically

became the Defendant in this case when she was named as the Acting

Commissioner of the SSA.

civil action asking the court to review the denial of benefits according to 42 U.S.C.

§§ 405(g) and 1383(c). [Filing No. 1.]

Standard for Proving Disability

To prove disability, a claimant must show she is unable 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. § 1382c(a)(3)(A). Vivian is disabled if her impairments are of such severity

that she is not able to perform the work she previously engaged in and, if based on

her age, education, and work experience, she cannot engage in any other kind of

substantial gainful work that exists in significant numbers in the national economy.

Id. at 1382c(a)(3)(B). The SSA has implemented these statutory standards by, in

part, prescribing a five-step sequential evaluation process for determining

disability. 20 C.F.R. § 416.920.

Step one asks if the claimant is currently engaged in substantial gainful

activity; if she is, then she is not disabled. Step two asks whether the claimant's

impairments, singly or in combination, are severe; if they are not, then she is not

disabled. A severe impairment is one that "significantly limits [a claimant's]

physical or mental ability to do basic work activities." Id. at 416.920(c). The third

step is an analysis of whether the claimant's impairments, either singly or in

combination, meet or medically equal the criteria of any of the conditions in the

Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1. The Listing of

Impairments includes medical conditions defined by criteria that the SSA has pre-

determined are disabling, so that if a claimant meets all the criteria for a listed

impairment or presents medical findings equal in severity to the criteria for the

most similar listed impairment, then the claimant is presumptively disabled and

qualifies for benefits. Sims v. Barnhart, 309 F.3d 424, 428 (7th Cir. 2002).

If the claimant's impairments do not satisfy a listing, then her residual

functional capacity ("RFC") is determined for purposes of steps four and five. RFC

is a claimant's ability to do work on a regular and continuing basis despite her

impairment-related physical and mental limitations. 20 C.F.R. § 416.945. At the

fourth step, if the claimant has the RFC to perform her past relevant work, then she

is not disabled. The fifth step asks whether there is work in the relevant economy

that the claimant can perform, based on her age, work experience, and education

(which are not considered at step four), and her RFC; if so, then she is not disabled.

The individual claiming disability bears the burden of proof at steps one through

four. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). If the claimant meets that

burden, then the Commissioner has the burden at step five to show that work exists

in significant numbers in the national economy that the claimant can perform,

given her age, education, work experience, and functional capacity. 20 C.F.R. §

416.960(c)(2); Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004).3

3 The Code of Federal Regulations contains separate, parallel sections concerning

disability insurance benefits and SSI, which are identical in most respects. Cases

like Young may reference the section pertaining to only one type of benefits. 362

F.3d at 1000 (citing 20 C.F.R. § 404.1520 (for disability insurance benefits)).

Generally, a verbatim section exists establishing the same legal point with both

Standard for Review of the ALJ's Decision

Judicial review of the Commissioner's (or ALJ's) factual findings is

deferential. A court must affirm if no error of law occurred and if the findings are

supported by substantial evidence. Dixon v. Massanari, 270 F.3d 1171, 1176 (7th

Cir. 2001). Substantial evidence means evidence that a reasonable person might

accept as adequate to support a conclusion. Biestek v. Berryhill, 139 S. Ct. 1148,

1154 (2019) (internal quotation and citation omitted). The standard demands more

than a scintilla of evidentiary support, but it does not demand a preponderance of

the evidence. Wood v. Thompson, 246 F.3d 1026, 1029 (7th Cir. 2001).

The ALJ is required to articulate a minimal, but legitimate, justification for

her decision to accept or reject specific evidence of a disability. Scheck v. Barnhart,

357 F.3d 697, 700 (7th Cir. 2004). The ALJ need not address every piece of evidence

in her decision, but she cannot ignore a line of evidence that undermines the

conclusions she made, and she must trace the path of her reasoning and connect the

evidence to her findings and conclusions. Arnett v. Astrue, 676 F.3d 586, 592 (7th

Cir. 2012); Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).

Before addressing Vivian's assertions of error, the court provides background

information about her past work and the ALJ's sequential findings.

types of benefits. See, e.g., 20 C.F.R. § 416.920 (for SSI). The court will take care to

detail any applicable substantive differences but will not usually reference the

parallel section.

Background and ALJ Decision

Vivian was 50 years old when her alleged disability began. [Tr. 25.] She had

graduated from high school. [Tr. 42.] She had a history of special education. [Tr.

50.] She had worked as a cook, laborer, ticket taker, and janitor. [Tr. 44; 188.]4

The ALJ followed the five-step sequential evaluation set forth by the SSA in

20 C.F.R. § 416.920(a)(4) and concluded that Vivian was not disabled. [Tr. 27.]

Specifically, the ALJ found as follows:

• At step one, Vivian had not engaged in substantial gainful activity5

since September 21, 2018, the application date. [Tr. 17.]

• At step two, she had "the following severe impairments: right foot pes

planus and calcaneal spur status post debridement of callus plantar

aspect, onychomycosis of the bilateral toes, osteoarthritis, peroneal

tendonitis of the right ankle, asthma, depressive disorder, adjustment

disorder, posttraumatic stress disorder ("PTSD"), and narcissistic

personality disorder." Id. (citation omitted).

• At step three, she did not have an impairment or combination of

impairments that met or medically equaled the severity of one of the

listed impairments. [Tr. 19.]

• After Step Three but before Step Four, Vivian had the RFC "to perform

light work as defined in 20 CFR 416.967(b) except she can stand and

walk no more than four hours in an eight-hour workday; can

occasionally climb ramps and stairs; can never climb ladders, ropes, or

scaffolds; can frequently balance and stoop; can occasionally kneel,

crouch, and crawl; can occasionally work at unprotected heights but

4 The relevant evidence of record is amply set forth in the parties' briefs and need

not be repeated here. Specific facts relevant to the court's disposition of this case

are discussed below.

5 Substantial gainful activity is defined as work activity that is both substantial

(i.e., involves significant physical or mental activities) and gainful (i.e., work that is

usually done for pay or profit, whether or not a profit is realized). 20 C.F.R. §

416.972(a).

can frequently work around moving mechanical parts and can

frequently operate a motor vehicle in the course of employment; can

tolerate occasional exposure to dust, odors, fumes, and other

pulmonary irritants; can occasionally tolerate temperature extremes,

humidity, and wetness; and she will predictably be off-task up to 10%

of the workday due to the combined distracting effects of her mental

impairments and her pain." [Tr. 20.]

• At step four, considering the testimony of the vocational expert ("VE")

and Vivian's RFC, she was incapable of performing her past relevant

work as a housekeeper. [Tr. 25.]

• At step five, considering the VE's testimony and Vivian's age,

education, work experience, and RFC, she was capable of performing

other work with jobs existing in significant numbers in the national

economy in representative occupations like a weight measure checker

clerk, hand sorter, and bus monitor. [Tr. 25–27.]

Analysis

Vivian contends that the ALJ erred: (A) in evaluating her mental

impairments by failing to develop the record and leaving the RFC without the

support of substantial evidence, and (B) by not providing for the need to use a cane

and rolling walker in her RFC finding. The court will address the arguments in

turn.

A. The ALJ did not err in evaluating Vivian's mental impairments.

Vivian contends that the ALJ erred in evaluating her mental impairments

by: (1) failing to develop the record by obtaining an opinion from a treating source or

scheduling a consultative examination, (2) ignoring evidence that Vivian had

marked or extreme limitations interacting with others, and (3) failing to provide a

logical bridge from the evidence to the ALJ's conclusion that Vivian's RFC did not

include limitations in interacting with others.

1. The ALJ did not fail to develop the record.

Vivian was represented by counsel at the hearing. [Tr. 32.] A claimant

represented by counsel is presumed to have made her best case to the ALJ. Skinner

v. Astrue, 478 F.3d 836, 842 (7th Cir. 2007). When Vivian filled out forms for the

SSA describing her functioning, she indicated that her conditions affected lifting,

squatting, bending, standing, reaching, walking, kneeling, and climbing stairs. [Tr.

199.] She did not identify memory, completing tasks, concentration, understanding,

following instructions, or getting along with others as functional problems. Id.

When Vivian was asked by the ALJ at the hearing why she was unable to work, she

testified that she had bad arthritis in her knees and shoulders, some days were

better than others, and she could not exert herself, move around too much, and

stand for too long. [Tr. 48–49.] When her counsel took over questioning, he asked

her about problems with her right foot and needing to urinate more frequently in

the morning after taking a water pill. [Tr. 54–56.] At no point did Vivian allege

that her mental impairments contributed to her disability.

"Particularly in counseled cases, the burden is on the claimant to introduce

some objective evidence that further development of the record is required." Poyck

v. Astrue, 414 F. App'x 859, 861 (7th Cir. 2011). "If the ALJ denied the request for

an examination, on appeal the claimant must show prejudice by pointing to specific

medical evidence that was omitted from the record." Id. at 861–62. Vivian did not

request that the ALJ develop the record further concerning her mental

impairments, nor did she request that the ALJ order a consultative examination.

Even if she had, "[t]he ALJ is not required to order such examinations, but may do

so if an applicant's medical evidence about a claimed impairment is insufficient."

Skinner, 478 F.3d at 844 (emphasis in original) (citing 20 C.F.R. §§ 416.912(f) and

416.917). By regulation, "[t]he evidence in [the] case record must be complete and

detailed enough to allow [the SSA] to make a determination or decision about

whether the claimant is disabled," including evidence that would allow the SSA to

determine the "nature and severity" of the claimant's impairments and her RFC "to

do work-related physical and mental activities." 20 C.F.R. § 416.912(a)(2). The SSA

has the responsibility to develop the complete medical record and "to make every

reasonable effort to help [the claimant] get medical evidence from [her] own medical

sources . . . ." Id. at 416.912(b)(1). "Generally, [the SSA] will not request a

consultative examination until [the SSA has] made every reasonable effort to obtain

evidence from [the claimant's] medical sources." Id. at 416.912(b)(2). "If [the SSA]

cannot get the information [the SSA] need[s] from [a claimant's] medical sources,

[the SSA] may decide to purchase a consultative examination." 20 C.F.R. §

416.919a(a). The SSA "may purchase a consultative examination to try to resolve

an inconsistency in the evidence or when the evidence as a whole is insufficient to

support a determination or decision," including when there is "needed medical

evidence, such as clinical findings, laboratory tests, a diagnosis, or prognosis . . . ."

Id. at 416.919a(b).

On appeal, Vivian asserts that "[d]espite evidence from [her] treating

psychiatrist that [she] was diagnosed with Narcissistic Personality Disorder and

Paranoid Personality Disorder and was prescribed the powerful anti-psychotic drug

Geodon, the ALJ made no attempt to develop the file by obtaining an opinion from

the treating source or scheduling a consultative examination." [Filing No. 19 at 15.]

Vivian alludes to a record that contained ample evidence of her mental functioning,

including her diagnoses, reported symptoms, and clinical findings from mental

status examinations. That evidence was sufficient for the ALJ to evaluate Vivian's

mental impairments, but she faults the ALJ for not procuring a medical opinion.

The regulations do not expressly require the ALJ to develop the record by

seeking a medical opinion. For claims like Vivian's filed on or after March 27, 2017,

"[a] medical opinion is a statement from a medical source about what [the claimant]

can still do despite [her] impairment(s) and whether [she had] one or more

impairment-related limitations or restrictions in the abilities listed . . . ." 20 C.F.R.

§ 416.913(a)(2). The list includes a claimant's abilities to "perform mental demands

of work activities, such as understanding; remembering; maintaining concentration,

persistence, or pace; carrying out instructions; or responding appropriately to

supervision, co-workers, or work pressures in a work setting . . . ." Id. at

416.913(a)(2)(i)(B). Even though the ALJ did not expressly rely on the prior

administrative medical findings of the state agency psychological consultants, the

consultants reviewed the evidence at the initial and reconsideration phase and

assessed that Vivian's mental impairments were not severe.6 [Tr. 81–82; 93–94.]

6 "An impairment or combination of impairments is not severe if it does not

significantly limit [her] physical or mental ability to do basic work activities." 20

C.F.R. § 416.922(a). "[B]asic work activities" are "the abilities and aptitudes

The ALJ did find that Vivian had severe mental impairments including

depressive disorder and narcissistic personality disorder. The ALJ also explained

that because of "the distracting effects of [Vivian's] depressed and irritable moods,

paranoid thoughts, and her pain . . ., she [would have] predictably be[en] off-task for

up to 10% of the workday in addition to regularly scheduled breaks." [Tr. 24.]

Vivian faults the ALJ for assessing her RFC without a medical opinion

specifying her limitations from her mental impairments, but according to the

regulations, "[i]f [the] case is at the administrative law judge hearing level . . ., the

administrative law judge . . . is responsible for assessing [the claimant's] residual

functional capacity." 20 C.F.R. § 416.946(c). The ALJ was not required to rely on a

medical opinion to assess Vivian's RFC.

Citing Smith v. Apfel, 231 F.3d 433, 437 (7th Cir. 2000), and Selby v.

Barnhart, 48 F. App'x 576, 581 (7th Cir. 2002), Vivian asserts that the ALJ's duty to

develop the record "can require obtaining opinion evidence." [Filing No. 19 at 15.]

In Smith, the ALJ discounted functional limitations assessed by the claimant's

treating physician because the doctor had not ordered x-rays to confirm the

claimant's arthritis. 231 F.3d at 437. But the court explained that there was

imaging in the record that was nearly ten years old showing that the claimant had

early signs of degeneration in his ankle that would have presumably only

necessary to do most jobs." Id. at 416.922(b). "Examples of these include . . .

(3) Understanding, carrying out, and remembering simple instructions; (4) Use of

judgment; (5) Responding appropriately to supervision, co-workers and usual work

situations; and (6) Dealing with changes in a routine work setting." Id.

progressed, and the court did not see how the ALJ could evaluate the claimant's

arthritis without ordering updated imaging. Id. at 437–38. In the unpublished

Selby opinion, the court relied on an older regulatory scheme—not applicable to

Vivian's claim—that expressly directed the ALJ to give more weight to examining

sources, especially treating sources. 48 F. App'x at 580 (citing 20 C.F.R. §

404.1527(d) (for claims filed before March 27, 2017, sometimes referred to as the

treating physician rule)). The court explained that rather than discounting the

opinion of the claimant's treating physician that he was disabled because the

opinion was overly broad, the ALJ should have done a better job of seeking

clarification from the treating physician about the claimant's specific limitations.7

Selby, 48 F. App'x at 580–81 (citing Smith, 231 F.3d at 437 for the proposition that

the "ALJ should gather additional medical evidence if he believes that the evidence

of record is insufficient to enable him to make a disability determination"). Here,

neither the ALJ nor the reviewing psychological consultants found the record

insufficient to evaluate Vivian's mental impairments. Vivian did not allege that her

mental impairments were disabling, nor did she produce a medical opinion that she

7 Vivian relies on case law that was applying regulations that do not apply to her

claim. For instance, the treating source statement in Selby would no longer qualify

as a medical opinion because the physician did not assess specific impairment-

related limitations or restrictions. 20 C.F.R. § 416.913(a)(2). Also, in McFadden v.

Berryhill, 721 F. App'x 501, 506 (7th Cir. 2018), the court explained that an ALJ

need not solicit further explanation from a treating source every time she evaluates

an opinion. The court observed that Barnett—that had found the duty to solicit

additional information—was applying a regulation, 20 C.F.R. § 404.1527(c)(3), that

had been eliminated in 2012. Id. (citing Barnett v. Barnhart, 381 F.3d 664, 670 (7th

Cir. 2004); 77 Fed. Reg. 10651, at 10656 (Feb. 23, 2012)).

was disabled because of her mental impairments. And Vivian has not explained

why the ALJ had the duty rather than her counsel to seek a medical opinion from

one of her treating sources. As in Buckhanon ex rel. J.H. v. Astrue, 368 F. App'x

674, 679 (7th Cir. 2010), Vivian, "acting through counsel," knew that the

consultants did not find her mental impairments disabling, and even though she

was gathering other evidence, she never presented a treating opinion, nor did she

request that the ALJ contact a consultant for further development. "The

appropriate inference is that [she] decided that another expert opinion would not

help her." Id. Accordingly, the ALJ cannot be faulted for failing to develop the

record.

2. Vivian has not demonstrated that the ALJ ignored significant

evidence.

When assessing the "paragraph B" criteria, the ALJ found that the Vivian

had a mild limitation in interacting with others. [Tr. 19.] The limitations identified

in the paragraph B criteria are used to rate the severity of mental impairments at

steps two and three of the sequential evaluation process. 20 C.F.R. § 416.920a(d)–

(e). However, the RFC assessment used at steps four and five requires a more

detailed assessment by itemizing various functions contained in the broad areas of

functioning found in paragraph B. Social Security Ruling ("SSR") 96-8p (S.S.A. July

2, 1996), 1996 WL 374184, at *4. The ALJ explained her paragraph B finding that

Vivian had a mild limitation interacting with others:

As detailed below, although the claimant's treaters sometimes

described her as irritable, they also regularly stated that she

behaved in a cooperative manner. She admitted that she was able to

maintain a relationship with her husband, with whom she lived, and

that she attended church services regularly and socialized with her

family. She also said that she was able to take public transportation

and go shopping in public stores.

[Tr. 19 (citations omitted).]

Vivian contends that the ALJ ignored evidence that she had marked or

extreme limitations interacting with others. An extreme limitation in one of the

broad paragraph B domains would mean that Vivian was presumptively disabled at

step three. See, e.g., 20 C.F.R. § Pt. 404, Subpt. P., App. 1, 12.04(b) (for depressive

disorders). Alternatively, marked limitations in two of the domains would also

establish disability. Id. However, Vivian did not produce any medical opinion that

she had marked or extreme limitations interacting with others. She does not argue

that she has marked limitations in any other domain. And she does not cite any

legal authority or even the regulatory definition of an extreme limitation to advance

a step three argument. The Seventh Circuit has held in a social security disability

context that "[p]erfunctory and undeveloped arguments are waived, as are

arguments unsupported by legal authority." Krell v. Saul, 931 F.3d 582, 586 n.1

(7th Cir. 2019) (quoting Schaefer v. Universal Scaffolding & Equip., LLC, 839 F.3d

599, 607 (7th Cir. 2016)). Any step three argument is waived.

Regarding Vivian's argument that the ALJ ignored evidence, the Seventh

Circuit has explained that "an ALJ doesn't need to address every piece of evidence,

but . . . she can't ignore a line of evidence supporting a finding of disability."

Deborah M. v. Saul, 994 F.3d 785, 788 (7th Cir. 2021). Vivian contends that her

mental health records demonstrate that anger was her primary emotion, that her

interpersonal disposition was a barrier to her success, that she was distrustful and

paranoid throughout the treatment record, that she was diagnosed with a paranoid

personality disorder, and that she had difficulty getting along with her family, case

workers, and her own therapists "who are trained to deal with mentally ill

individuals." [Filing No. 19 at 16–18.]

The ALJ addressed this line of evidence. She explained that Vivian treated

with a therapist and psychiatrist for depressed and irritable moods, paranoid

thoughts, and questionable judgment. [Tr. 23.] She also explained that even

though Vivian continued to report some irritability and paranoid thoughts, she also

showed some improvement with her mood beginning in May 2019, that she was

observed by various examiners throughout the record to be cooperative and

pleasant, and that her treating providers also regularly recorded normal or

unremarkable moods and behaviors. Id.

The ALJ summarized fairly the conflicting evidence of Vivian's interpersonal

demeanor, which is outlined below. On November 6, 2018, Vivian's therapist

questioned her about "always feeling like she had to fight the world . . . ." [Tr.

1128.] On examination, her affect was irritable, and her therapist noted that it was

difficult to interject questions. Id. Vivian's therapist assessed delusional thinking

with continued paranoid themes that she appeared to view the world with distrust

and felt the need always to protect herself. Id. On November 8, 2018, her

psychiatrist's mental status examination recorded that Vivian's attitude was

irritable, her mood depressed, her thought content paranoid, and her judgment

questionable, but that her attitude was cooperative, she made good eye contact, her

speech was normal with good articulation, and her thought processes were logical,

sequential, and goal oriented. [Tr. 1130.] Vivian's diagnoses included paranoid

personality disorder and narcissistic personality disorder. [Tr. 1131.] Her

psychiatrist explained that she was "neither gravely disabled at present nor acutely

dangerous to self/others. [But] Inappropriate/excessive anger/reactivity to perceived

slights/poor coping arising from [her personality disorders] appear[ed] to be a major

barrier to success."8 Id.

On May 24, 2019, Vivian's therapist explained that "social connectedness"

was one of Vivian's strengths and that she had "significant interpersonal skills."

[Tr. 1319.] She reported socializing with family members, playing cards, going to

church, and working for a temporary service at the stadium. Id. Her mental status

examination recorded that her mood was euthymic, she showed a full range of

emotions including a "brighter" affect with "[l]ess posturing," but she had only

partial insight and her judgment was noted to be "questionable at times." [Tr.

1321.] Her therapist explained that she was still "distrustful," but Vivian reported

feeling like she had made improvement. [Tr. 1322.]

8 Vivian includes her psychiatrist's statement, for example, in the evidence that she

contends the ALJ ignored. [Filing No. 19 at 17.] But Vivian does not contend that

her psychiatrist's opinion was a medical opinion. The ALJ cited to the treatment

visit and summarized it as showing that Vivian's psychiatrist "regularly observed

depressed and irritable moods and paranoid thoughts . . . ." [Tr. 23.]

On January 23, 2020, Vivian was noted to be cooperative, pleasant, and she

related well. [Tr. 1422.] On February 26, 2020, she was cooperative and

conversant. [Tr. 1425.] On February 27, 2020, Vivian was cooperative and

conversant on examination, but she reported problems with a Department of Child

Services case worker who was involved with her son because of an incident between

him and his father, and her therapist recorded "[c]ontinued irritability and

paranoia." [Tr. 1429–30.] An examination by her psychiatrist that same day

recorded her to be both cooperative and irritable. [Tr. 1432.] On April 13, 2020,

Vivian was cooperative and conversant as she discussed having Easter with her

mother and a "very small group of people there." [Tr. 1452–53.] On April 17, 2020,

her attitude was cooperative, and her mood was depressed and anxious but not

irritable. [Tr. 1462.] Her psychiatrist explained that she suffered from multiple

psychiatric conditions but was neither "gravely disabled," "nor acutely dangerous"

to herself or others, and her global status was "improving but with [a] persisting

unstable condition." [Tr. 1464.] On May 11, 2020, Vivian reported relationship

problems with her children. [Tr. 1467.] She was angry and irritable but

cooperative and conversant during examination. [Tr. 1468.]

Vivian asserts only on appeal that her inability to interact with others was

disabling. She cites SSR 85-15 (S.S.A. 1985), 1985 WL 56857, at *4, that "[t]he

basic mental demands of competitive . . . unskilled work include the abilities (on a

sustained basis) . . . to respond appropriately to supervision, coworkers, and usual

work situations; and to deal with changes in a routine work setting." "A substantial

loss of ability to meet any of these basic work-related activities . . . would justify a

finding of disability . . . ." Id. When reporting her functioning to the SSA, Vivian

did not indicate that getting along with others was a problem. There is no medical

opinion that clearly states that she had a substantial loss of one of these basic

abilities. And Vivian has not made any argument that the ALJ was unqualified to

evaluate her mental treatment records or that any new and significant evidence

was added to the record after the consultant's last review. Accordingly, the court

has not considered those potential arguments and finds that Vivian has waived

them. What remains is beyond the scope of review: only an invitation for the court

to reweigh the relevant evidence that the ALJ considered. Accordingly, Vivian has

not demonstrated that the ALJ erred by ignoring significant evidence.

3. The ALJ's relevant RFC finding is supported by substantial

evidence.

Relatedly, Vivian contends that the ALJ summarized the evidence of her

mental functioning but did not explain the reasoning behind her RFC finding.

[Filing No. 19 at 18.] She also contends that the ALJ relied on "innocuous things"

like her ability to live with her husband to find that she had only a mild limitation

interacting with others. Id. She further contends that the ALJ did not account for

her paragraph B finding that Vivian had a mild limitation interacting with others

by limiting her ability to interact with the public, coworkers, or supervisors in her

RFC. Id. at 19.

As previously discussed, the ALJ did not rely solely on Vivian's relationship

with her husband to assess her interpersonal functioning. She considered Vivian's

daily activities like her ability to use public transportation, shop in public stores,

and attend church. For instance, Vivian testified that she got help from her sisters

to get around and she also used public transportation, i.e., buses. [Tr. 41–42.] The

ALJ also relied on mental status examinations showing that Vivian was

cooperative, at least for the most part, with her treating providers.

Furthermore, the ALJ did not ignore Vivian's ongoing problems with

irritability and paranoia. The ALJ explained that Vivian would be expected to be

off task because of distractions including distractions from the effects of her

interpersonal demeanor. The ALJ's RFC "finding was more limiting than that of

any state agency doctor or psychologist, illustrating reasoned consideration given to

the evidence [Vivian] presented." Burmester v. Berryhill, 920 F.3d 507, 510 (7th

Cir. 2019). Minor limitations—such as an inability to work overtime because of

fatigue and a limited ability to follow moderately complex instructions—do not need

to be included in the RFC when they would have no effect on the outcome of the

case. See Denton v. Astrue, 596 F.3d 419, 423–25 (7th Cir. 2010). Similarly, an

appellant must establish harm by identifying specific limitations that were

supported by the evidence and neglected by the ALJ. See Jozefyk v. Berryhill, 923

F.3d 492, 498 (7th Cir. 2019). Vivian does not identify the specific interaction

limitations that she contends should have been included in her RFC. And her

counsel did not solicit testimony from the VE about the effects of interaction

limitations on the occupational base. Accordingly, the ALJ's RFC finding

concerning Vivian's limitations from her mental impairments is supported by

substantial evidence, the ALJ adequately explained her reasoning, and Vivian has

not demonstrated harm.

B. The ALJ's RFC finding that omitted the use of an assistive device

is supported by substantial evidence.

Vivian contends that the ALJ did not give sound reasoning for finding that

Vivian's RFC did not include the need to use an assistive device. [Filing No. 19 at

19–20.] She also contends that the ALJ played doctor by concluding without

medical support that Vivian did not need to use the assistive devices prescribed by

her treating providers. Id. at 20–21.

SSR 96-9p (S.S.A. July 2, 1996), 1996 WL 374185, at *7, explains that an

"adjudicator must always consider the particular facts of a case" concerning the use

of hand-held assistive devices. The ruling explains:

To find that a hand-held assistive device is medically required, there

must be medical documentation establishing the need for a hand-held

assistive device to aid in walking or standing, and describing the

circumstances for which it is needed (i.e., whether all the time,

periodically, or only in certain situations; distance and terrain; and

any other relevant information).

Id. Depending on the circumstances, the SSA's guidance suggests that consultation

with a vocational resource "may be especially useful" to consider the effect of the use

of an assistive device on the occupational base. Id.

The ALJ addressed Vivian's alleged need to use an assistive device:

She described pain and weakness so severe that she needed to make

daily use of a [rollator] walker or a cane to ambulate; however,

although the record does confirm that she was prescribed these

assistive devices, at no point did any of her medical providers actually

observe her using an assistive device to walk. She admitted to her

physical therapist that she "does not consistently use cane when out in

community," where her need for such a device would presumably be

greatest. Moreover, although her medical providers did observe

tenderness in the ankles and other major joints, they otherwise

regularly observed that she presented for examinations in no acute

distress, with only intermittent reports of weakness and with no

mention of any unusual fatigue. Imaging testing has consistently

shown only "mild" levels of degeneration or "small" abnormalities.

[Tr. 23–24.] In Tripp v. Astrue, 489 F. App'x 951, 955 (7th Cir. 2012), the court

explained that even abundant evidence of the claimant's use of an assistive device—

including her presentation with one during treatment visits—did not necessarily

establish that an assistive device was medically required according to SSR 96-9p.

On June 6, 2019, Vivian reported to her primary care physician that her knee pain

was "well controlled" with Voltaren gel and she was planning on returning to work

part time. [Tr. 1324.] She had seen an orthopedist who offered her steroid

injections, but she refused because of discomfort with needles and her preference for

conservative management. Id. Her physician diagnosed primary osteoarthritis of

both knees and explained, "Pain controlled on current regimen however, in

attempting to return to work, patient is concerned about fall risk and inability to

walk/stand for extended periods and needing to frequently sit down and rest." [Tr.

1330.] Vivian's physician recorded that a rollator walker was "ordered . . . to reduce

fall risk and maintain mobility." Id. On June 19, 2019, Vivian attended physical

therapy for knee pain. [Tr. 1333.] She denied recent falls. Id. She reported that

she ambulated with a cane in her home environment but did not consistently use a

cane when out in the community. Id. She reported that "cream and pills are good."

Id. On examination, Vivian ambulated without an assistive device and had

"[d]ecreased knee extension through gait cycle with slight weight shift onto [left

lower extremity]." [Tr. 1335.] She had some decreased strength, "4+/5," in various

leg muscles that were tested. [Tr. 1335–36.] On June 23, 2020, her physician

ordered a replacement rollator walker because her previous one had been stolen.

[Tr. 1527.]

Vivian takes issue with the ALJ's reasoning. She suggests that the fact that

the medical source did not record her use of an assistive device "is not proof that

they did not observe her use of it. To the contrary, if a medical source has

prescribed a cane for walking and the patient is not using it they would note

noncompliance." [Filing No. 19 at 21.] The fact that no treating source has

documented a claimant's use of an assistive device would certainly be a reasonable

basis to conclude that one was not consistently used. Regardless, Vivian simply

ignores the more direct evidence that the ALJ relied on. She reported to her

physical therapist that she did not consistently use an assistive device when outside

the home. As the ALJ explained, if Vivian needed an assistive device for prolonged

standing and ambulation—as she explained to her treating physician who

prescribed the rollator walker—she presumably would have had a greater need to

use an assistive device when she was out in the community. The ALJ provided a

reasonable explanation in support of her finding that an assistive device was not

medically required.

The ALJ did not play doctor in reaching that conclusion. In Tripp, the court

explained that even a physician's letter that "asserted matter-of-factly" that the

claimant "does need a crutch" lacked "the specificity necessary to determine

whether this was the doctor's medical opinion or merely a restatement of what was

told to him by [the claimant]." 489 F. App'x at 955 (emphasis in original). An

assistive device is not a controlled substance that requires a prescription. See

Parker v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010) (a cane does not require a

prescription). A prescription may assist the recipient with getting the cost covered

by insurance. The fact that Vivian was prescribed assistive devices by her medical

providers does not establish that her medical sources determined that she would

need to use one in the workplace. The prescriptions also do not establish the

specific circumstances that an assistive device might be medically required

according to SSR 96-9p. The ALJ did not need to seek medical input because Vivian

was prescribed assistive devices, particularly when the record provided substantial

evidence that examinations and her own reports did not establish that an assistive

device was medically required.

Moreover, the record does not establish that the ALJ's relevant finding was

material. The ALJ assessed that Vivian could perform a reduced range of light

exertional work that limited her to standing and walking no more than four hours

in an eight-hour workday. Some light exertional occupations are performed

primarily sitting but require pushing and pulling of arm or leg controls that exceed

the exertional demands of sedentary work. SSR 83-10 (S.S.A. 1983), 1983 WL

31251, at *5. Regarding the representative light occupations that the ALJ

ultimately found Vivian could perform, the ALJ asked the VE about the effect of an

individual needing to use a rollator walker to sit down during breaks. [Tr. 64.] The

VE testified that the individual could still perform the work. Id. The ALJ asked if

the individual could perform the jobs if the individual needed a cane for walking,

and the VE testified, "At the light level, yes, your honor. I believe these jobs are

mostly sitting jobs." Id. Vivian's counsel cross-examined the VE about the effect of

an individual always being unable to use one hand while needing to hold a cane.

[Tr. 72.] The VE responded:

The jobs that I've enumerated are basically sit-down jobs. I don't think

she'd be using a cane during the period of time that she's sitting down.

I think she could perform the work. Most of these jobs require up to

six hours of sitting and two hours of standing. The standing portion,

using the cane, I don't think would interfere with her ability to be able

to function.

Id. Vivian's counsel did not develop the record further by soliciting testimony from

the VE about limitations concerning the use of an assistive device that would

preclude performance of the representative occupations. On appeal, Vivian ignores

the VE's testimony that the representative occupations could be performed by an

individual who needed to use a cane. Agency descriptions of how work is

"ordinarily" performed at certain exertional levels does not refute expert testimony

in response to a specific question. Powers v. Apfel, 207 F.3d 431, 436 (7th Cir.

2000). Regardless, Vivian has waived any argument challenging the VE's

testimony. Accordingly, Vivian has not demonstrated that she was prejudiced by

the ALJ's relevant RFC finding.

Conclusion

For the reasons detailed in this order, the court finds no legal basis to reverse

the ALJ's decision that Vivian was not disabled during the relevant time.

Therefore, the decision below is AFFIRMED. Final Judgment will issue

accordingly.

LV hoe Fare

Date: 9/16/2022 Debra McVicker Lynch

United States Magistrate Judge

Southern District of Indiana

Distribution:

Brian J. Alesia

SOCIAL SECURITY ADMINISTRATION

brian.alesia@ssa.gov

Erin Leigh Brechtelsbauer

SOCIAL SECURITY ADMINISTRATION

brechtelsbauer@ssa.gov

Edward A. Wicklund

OLINSKY LAW GROUP

twicklund@windisability.com

Julian Clifford Wierenga

UNITED STATES ATTORNEY'S OFFICE (Indianapolis)

julian.wierenga@usdoj.gov

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