Boucek v. Astrue

Filing 36

MEMORANDUM Opinion and Order. Signed by the Honorable Young B. Kim on 6/16/2010. (aac, )

UNITED STATES DISTRICT COURT N O R T H E R N DISTRICT OF ILLINOIS E A S T E R N DIVISION C A R O L BOUCEK, P la in tif f , v. M I C H A E L ASTRUE, C o m m is s io n e r of Social Security, D e f e n d a n t. ) ) ) ) ) ) ) ) )

C a s e No. 08 CV 5152 M a g is tr a te Judge Young B. Kim

J u n e 16, 2010

M E M O R A N D U M OPINION and ORDER B e f o re the court is Carol Boucek's motion to reverse a decision of the Commissioner o f Social Security ("the Commissioner") denying her application for disability insurance b e n e f its ("DIB") under the Social Security Act, 42 U.S.C. §§ 416(i), 423. Boucek claims that h e r asthma, cardiac problems, knee and toe pain, and arthritis render her disabled. The C o m m is s io n e r of Social Security issued a final decision denying her claims, and Boucek a p p e a ls . For the following reasons, Boucek's motion is denied: Procedural History B o u c e k applied for DIB in January 2006, claiming that her disability began on N o v e m b e r 15, 2005. (A.R. 20, 79.) The Commissioner denied her claim initially and on re c o n s id e ra tio n . (Id. at 51-52.) Boucek then requested, and was granted, a hearing before a n administrative law judge ("ALJ"). (Id. at 66.) The ALJ concluded that Boucek was not " d is a b le d " as defined in the Social Security Act. (Id. at 16.) When the Appeals Council d e n ie d review, (id. at 1), the ALJ's decision became the final decision of the Commissioner,

see Schmidt v. Astrue, 496 F.3d 833, 841 (7th Cir. 2007). Boucek then filed the current suit s e e k in g judicial review of the ALJ's decision. See 42 U.S.C. § 405(g). The parties have c o n s e n te d to the jurisdiction of this court. See 28 U.S.C. § 636(c). Facts In her DIB application, Boucek claimed that her disability began on November 15, 2 0 0 5 , when she quit her job as a certified public accountant because her constant exposure a t the office to boxes of moldy and dusty documents exacerbated her asthma. (A.R. 25, 37, 1 1 6 -1 7 , 244-45.) She also claimed that her ability to work is limited by her fatigue, which is caused by a combination of her asthma and a cardiac condition called mitral valve re g u r g i t a ti o n . (Id. at 47.) Finally, Boucek claimed to suffer from chronic knee pain and a rth ritis . (Id. at 30-32, 44-45, 116, 196.) At her hearing before an ALJ, Boucek provided b o th documentary and testimonial evidence in support of her claims. A. B o u c e k 's Evidence

B o u c e k testified that she was forced to stop working because of her asthma, which c a u s e s her to wheeze and experience tightness in her chest and shortness of breath. (A.R. 25, 3 6 .) She explained that her asthma is exacerbated by environmental triggers such as mold, d u s t, smoke, and strong smells (animals are not among this list, as Boucek keeps a dog and f iv e cats as pets). (Id. at 23, 37.) Boucek had never gone to the emergency room or hospital f o r treatment of an asthma attack, but she testified that she uses Pulmicort, Nasacort, and a re s c u e inhaler to control her symptoms. (Id. at 36, 122.) She explained that her asthma

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became worse while she was working as an accountant, because the job required her to h a n d le old, musty documents. (Id. at 25, 116.) Boucek submitted a letter from her former e m p lo ye r corroborating that his office caused her to cough and wheeze. (Id. at 244.) She te s tif ie d that when she quit her job, her asthma improved. (Id. at 38.) B o u c e k testified that she also suffers from extra heartbeats, skipped heartbeats, and m itra l valve regurgitation, which will eventually require valve-replacement surgery. (A.R. 3 7 .) She said that the combination of her asthma and mitral valve regurgitation causes her to feel fatigued and short of breath, and that she tires easily with strenuous activity. (Id. at 4 6 -4 7 .) The ALJ noted that her most recent stress echocardiogram did not show any serious a b n o rm a litie s , and Boucek reported that her cardiologist, Dr. Raymond Rapecz, told her that s h e is "doing ok for now." (Id. at 37-38.) She submitted treatment evaluations from D r. Rapecz, who reported in June 2006 that Boucek was "clinically doing well." (Id. at 2132 1 4 .) She also submitted echocardiogram reports from April 2006 and November 2007. Both reports show only mild mitral valve regurgitation, although the 2006 report shows " s e v e re pulmonic regurgitation." (Id. at 196, 247.) Boucek does not take any medication in c o n n e c tio n with her heart condition. (Id. at 122, 185.) B o u c e k also described her chronic right knee pain, which is caused by arthritis and a degeneration of cartilage. (A.R. 30-31.) She testified that despite undergoing a knee a rth ro s c o p y in 1999, she still experiences an aching, throbbing pain that can range from a " th re e to a fifteen" on a scale of one to ten. (Id. at 30-32.) The pain often keeps her awake

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at night. (Id. at 38-39.) Boucek explained that the pain is worse when she is active, and if s h e sits still for too long it can lock in a bent position. (Id. at 31.) She said she is considering g e ttin g a cane, but has not used one yet because "it's a psychological thing." (Id. at 32.) Boucek also testified that she only takes over-the-counter medicine to control her pain, and th a t she had not asked her doctor for prescription pain medication because she does not like to take pills "unless I absolutely have to." (Id. at 45-46.) In support of her testimony she s u b m itte d a report from her general practitioner, Dr. Lisa Fortman, who wrote in November 2 0 0 5 that Boucek will need knee replacement surgery "in the future." (Id. at 201.) Three m o n th s later, Dr. Fortman opined that Boucek can walk for one hour and can lift and carry u p to ten pounds for short distances, but that during a work day she would need to change p o s itio n s often and get up to stretch her right knee every hour. (Id. at 183.) F in a lly, Boucek described her struggles with arthritis in her thumbs and left toes. She e x p la in e d that the arthritis in her thumbs makes it difficult for her to grip anything heavy. She also testified that she experienced something called "trigger thumb," but that it had been tre a te d in August 2007 and she was "pretty much back to normal on that." (Id. at 35, 249.) The week before the hearing she had undergone two bunionectomies to fix an abnormality in her big left toe that was inflaming her arthritis. (Id. at 30.) At the time of the hearing, B o u c e k was taking Vicodin and Celebrex to control the pain from those procedures, but she d id not expect to renew the prescriptions when they ran out. (Id. at 39-40.)

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The ALJ questioned Boucek at length about her daily activities. Boucek explained th a t she lives alone with her dog and five cats, and that she takes care of her own cooking, c le a n in g , and housekeeping. (A.R. 23, 40.) Boucek testified that because she tires easily, w h e n shopping she tries to visit only one store at a time. (Id. at 40.) She explained that she n a p s every day, and that when cleaning her house she has to rest after every half-hour of w o rk . (Id. at 43, 48.) She said that merely changing the linens on her bed is enough to make h e r lose her breath. (Id. at 48.) In c lu d e d in the record is a residual functional capacity assessment submitted by a m e d ic a l consultant named Dr. Young-Ja Kim. Based on his review of the medical records, h e opined that Boucek could sit, stand, or walk for about six hours in an eight-hour work day. (Id. at 189.) He noted that she should avoid concentrated exposure to fumes, odors, dusts, g a s e s , and poor ventilation. (Id. at 192.) He did not note any other significant limitations. A second medical consultant, Dr. Frank Jimenez, agreed with Dr. Kim's conclusions. (Id. a t 228-29.) B. T h e ALJ's Decision

A f t e r considering the proffered evidence, the ALJ concluded that Boucek is not d is a b le d . In so finding, the ALJ applied the standard five-step sequence, see 20 C.F.R. § 404.1520, which requires her to analyze: (1 ) whether the claimant is currently [un]employed; (2) whether the claimant h a s a severe impairment; (3) whether the claimant's impairment meets or e q u a ls one of the impairments listed by the [Commissioner], see 20 C.F.R. § 404, Subpt. P, App. 1; (4) whether the claimant can perform her past work; 5

and (5) whether the claimant is capable of performing work in the national e c o n o m y. C liffo r d v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000) (quoting Knight v. Chater, 55 F.3d 309, 3 1 3 (7th Cir. 1995)). If at step three of this framework the ALJ finds that the claimant has a severe impairment which does not meet the listings, she must "assess and make a finding a b o u t [the claimant's] residual functional capacity based on all the relevant medical and other e v id e n c e ." 20 C.F.R. § 404.1520(e). The ALJ then uses the residual functional capacity to d e te rm in e at steps four and five whether the claimant can return to her past work or to d if f e re n t available work. Id. § 404.1520(f), (g). It is the claimant's burden to prove that she h a s a severe impairment that prevents her from performing past relevant work. 42 U.S.C. § 423(d)(2)(A); Clifford, 227 F.3d at 868. H e re , at steps one and two of the analysis the ALJ determined that Boucek had not b e e n employed since November 15, 2005, and that she suffers from two severe impairments: a s t h m a and osteoarthritis. (A.R. 13.) The ALJ did not discuss Boucek's mitral valve re g u rg ita tio n at step two, but he noted her problem with trigger thumb and concluded that it w a s not a severe impairment, because Boucek "testified that was successfully treated." (Id.) At step three, the ALJ evaluated Boucek's impairments under social security listings 3.03 (a s th m a ) and 1.02 (major dysfunction of joints). He determined that Boucek's pulmonary f u n c tio n testing did not reveal the level of pulmonary insufficiency specified in the asthma lis tin g s. (Id.) The ALJ also concluded that Boucek's arthritis did not meet the specific

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criteria of listing 1.02, which, when applied to knee pain, requires the "inability to ambulate e f f e c tiv e ly." (Id.); see also 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.02(A). Turning to step four, the ALJ determined that Boucek has a residual functional c a p a c ity to perform "sedentary work in a work environment free of respiratory irritants." (A.R. 14.) In reaching that determination, the ALJ noted that Boucek's records from 2006 s h o w that she had never required emergency room or inpatient treatment for asthma, nor had s h e required steroids or nebulizer asthma treatments. (Id. at 15.) The ALJ recognized that th e office environment at Boucek's last job exacerbated her asthma, but concluded she could s till work "in an office environment that does not aggravate her asthma." (Id.) As for the m itra l valve regurgitation, the ALJ noted that Dr. Rapecz's 2006 report shows that she only e x p e rie n c e d "occasional palpitations" and was "clinically doing well." (Id.) He also noted th a t her December 2006 cardiac screening tests "were all either negative or within normal lim its ." (Id.) The ALJ considered Boucek's arthritis, but after noting that she took only o v e r-th e -c o u n te r pain medication, he concluded that "the pain from this condition is largely c o n tro lle d ." (Id.) H a v in g determined that Boucek's residual functional capacity would allow her to p e rf o rm sedentary work, the ALJ concluded that she could return to her past relevant work a s an accountant. (A.R. 16.) He once again noted that her most recent job "was apparently in an environment which was excessively dusty," but explained that "there is no indication in the record that she has any allergies that would preclude office work in general." (Id.)

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Accordingly, the ALJ concluded that Boucek is not under a disability as defined by the Social S e c u rity Act, and denied her application for DIB. (Id.) Analysis In Boucek's current motion--which is one for summary judgment in form if not in la b e l-- s h e attacks the ALJ's decision with multiple arguments at almost every stage of the f iv e -s te p framework, but she does so in a largely conclusory manner. It is the equivalent of th ro w in g a pot full of wet noodles at the kitchen wall to see whether any will stick. Here, n o n e do. First, Boucek argues that at step two the ALJ failed to properly analyze her severe i m p a irm e n ts because he did not discuss her mitral valve regurgitation or the cartilage d e g e n e ra tio n in her right knee. Next, she argues that the ALJ erred at step three by failing to properly analyze the asthma and joint pain listings, and by excluding any analysis of w h e th e r her conditions are medically equivalent to other listings. Boucek also argues that th e ALJ improperly weighed the evidence in reaching the step-four residual functional c a p a c ity, and finally, that the ALJ had no basis to conclude that she can return to general o f f ic e work. In reviewing the Commissioner's decision denying DIB, this court asks only whether th e ALJ applied the correct legal standards and reached a decision that is supported by s u b s ta n tia l evidence. 42 U.S.C. § 405(g); Eichstadt v. Astrue, 534 F.3d 663, 665 (7th Cir. 2 0 0 8 ). Substantial evidence means "such relevant evidence as a reasonable mind might a c c e p t as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401

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(1971) (quotation omitted). This court reviews the entire record in making the substantial e v id e n c e determination, but does not "reweigh the evidence, resolve conflicts, decide q u e s tio n s of credibility, or substitute our own judgment for that of the Commissioner." Clifford, 227 F.3d at 869. We must affirm the ALJ's decision if reasonable minds could d if f e r regarding whether the claimant is disabled. Schmidt v. Astrue, 496 F.3d 833, 842 (7th C ir. 2007). B o u c e k first argues that the ALJ erred at step two of the disability framework by f a ilin g to consider whether her mitral valve regurgitation, "status-post knee arthroscopy," and f o o t problem constitute severe impairments.1 (R. 31, Pl.'s Mem. at 8.) Boucek faults the A L J for omitting any discussion of those ailments and for providing what she considers an in s u f f ic ie n t analysis of the evidence. But given the ALJ's findings that her asthma and o s te o a rth ritis constitute severe impairments, Boucek's focus on the step-two analysis is m isp la c e d . As the Commissioner points out, step two "is essentially an initial screening d e v ic e " to weed out claimants whose impairments do not significantly limit their ability to w o rk . Taylor v. Schweiker, 739 F.2d 1240, 1243 n.2 (7th Cir. 1984); see also 20 C.F.R. § 4 0 4 .1 5 2 1 ( a ) . Here the ALJ did not screen out Boucek's claim; he found that her

o s te o a rth ritis and asthma constitute severe impairments. And although he did not discuss all

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B o u c e k also includes arthritis in this list, but the ALJ specifically found that her o s te o a rth ritis constitutes a severe impairment. (A.R. 13.) 9

of her impairments at step two, he considered them at step four in determining whether B o u c e k retains a residual functional capacity to allow her to keep working. More importantly, it was Boucek's burden to prove at step two that her ailments are s e v e re , see Clifford, 227 F.3d at 868, and even now she points to no record evidence to s u p p o rt her assertion that the impairments the ALJ overlooked at step two should be c h a ra c te riz e d as severe. With respect to the mitral valve regurgitation, Dr. Rapecz said that s o m e day Boucek will need valve replacement surgery, but noted just months before the h e a rin g that she is "clinically doing well." (A.R. 37, 213-14.) Boucek's knee arthroscopy to o k place eight years before the hearing, and there is no evidence that the surgery, rather th a n the osteoarthritis, has had lingering debilitating effects. As for her foot problems, B o u c e k had corrective surgery the week before the hearing and she submitted no s u p p le m e n ta l evidence to suggest that the surgery was unsuccessful in alleviating her foot p a in . Finally, Boucek criticizes the ALJ for concluding that her trigger thumb is not a severe im p a irm e n t. The ALJ based that decision on Boucek's testimony that her trigger thumb had b e e n treated successfully. (A.R. 13.) According to Boucek this analysis "misses the mark" b e c a u s e , she says, the fact that her condition was treated does not mean it now functions n o rm a lly. (R. 31, Pl.'s Mem. at 8.) But Boucek testified that she was "pretty much back to n o rm a l" with respect to her trigger thumb, (A.R. 35), and she points to no evidence anywhere in the record to support her theory that her trigger thumb is a severe impairment. Accordingly, there is no reversible error in the ALJ's failure to analyze each of these

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impairments at step two. See Morgan v. Astrue, No. 07 CV 1741, 2009 WL 650364, at *8 (N .D . Ill. Mar. 9, 2009) (noting that "we have found no case that has been remanded solely o n the basis of a Step Two determination that was favorable to the claimant, but cursory"); M a z ia rz v. Sec. of Health & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987) (noting that w h e re ALJ finds claimant suffers from severe impairments, failure to find other "condition c o n s titu te d a severe impairment could not constitute reversible error"). N e x t, Boucek raises several underdeveloped arguments in an effort to dismantle the A L J 's step-three determination. At this stage the ALJ considered the opinions of the medical c o n s u lta n ts and concluded that Boucek's conditions do not meet or medically equal any lis tin g . Specifically, the ALJ determined that Boucek's pulmonary function testing did not re v e a l readings that meet the requirements for asthma listing 3.03, and her "arthritic c o n d itio n has not manifested clinical signs and findings that meet the specific criteria of L is tin g 1.02." (A.R. 13.) Boucek first faults the ALJ for considering her asthma only under lis tin g 3.03(A), and states without explanation that listing 3.03(B) "is more appropriate to an a s th m a tic condition." (R. 31, Pl.'s Mem. at 9.) But to meet listing 3.03(B), a claimant must e x p e rie n c e asthma attacks which, despite prescribed treatment, occur at least once every two m o n th s and require physician intervention. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 3.03(B). Boucek has not cited any evidence in the record showing she has ever experienced an asthma a tta c k that could not be controlled by her prescription inhalers and that required a doctor's in t e r v e n t i o n . An ALJ is not required to consider listings that obviously do not apply. See

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Skarbek v. Barnhart, 390 F.3d 500, 504 (7th Cir. 2004) ("An ALJ is required to consider im p a irm e n ts a claimant says he has, or about which the ALJ receives evidence.") Boucek also argues that the ALJ failed to explain sufficiently his determination that B o u c e k 's knee problem does not meet listing 1.02. It is true that the ALJ's explanation in th is regard is terse--he says only that after considering the opinions of the medical experts h e did not see clinical signs that meet the listing 1.02 criteria. (A.R. 13.) But again, Boucek h a s pointed to no evidence to support her argument that her knee condition meets the listing. Listing 1.02(A) requires chronic joint pain that results "in inability to ambulate effectively," m e a n in g "an extreme limitation of the ability to walk . . . that interferes very seriously with th e individual's ability to independently initiate, sustain, or complete activities." 20 C.F.R. P t. 404, Subpt. P, App. 1 § 1.02(A). Boucek cites no evidence to demonstrate that her knee p a in limits her in these ways. On the contrary, Dr. Fortman and the state medical consultants a g r e e d that Boucek can walk for up to an hour without resting. (A.R. 183, 185.)

Accordingly, the ALJ correctly noted that there are no clinical signs that Boucek meets the 1 .0 2 listing, and even though his explanation is brief, it is sufficient to reassure this court that h is determination is based on substantial evidence. See Eichstadt, 534 F.3d at 665-66. B o u c e k also raises the wholly undeveloped argument that "the ALJ erred at Step T h re e by failing to proffer any equivalence inquiry in violation of 404.1526." (R. 31, Pl.'s M e m . at 10.) The regulation she cites states that an impairment "is medically equivalent to a listed impairment . . . if it is at least equal in severity and duration to the criteria of any

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listed impairment." 20 C.F.R. § 404.1526. Here, the ALJ stated that Boucek does not have a n impairment that medically equals a listing. (A.R. 13.) At the hearing, Boucek's attorney a rg u e d that the ALJ should consider whether her asthma medically equals the listing, (id. at 2 2 ), but as described above, there is no evidence that her condition meets those criteria. Counsel has not explained what other listing her impairments might equal. Accordingly, e v e n if the ALJ erred by failing to provide a more detailed analysis for his determination that h e r condition does not medically equal a listing, that error is harmless. Sanchez ex rel. S a n c h e z v. Barnhart, 467 F.3d 1081, 1082-83 (7th Cir. 2006). Boucek's final attempt to persuade the court that the step-three analysis involves re v e rsib le error is her contention that the ALJ improperly ignored Dr. Fortman's opinions in f a v o r of the state medical consultant's opinions. The medical consultants concluded that B o u c e k can perform a range of light work, indicating that they did not believe that her im p a irm e n ts meet or equal the listings. Boucek asserts that their opinions conflict with D r. Fortman's, but she points to nothing in the record to support that assertion. This court's re v ie w of Dr. Fortman's records reveals no opinion comparing Boucek's impairments to the lis tin g s or opining that she cannot perform light work. In fact, in 2006 Dr. Fortman opined th a t although Boucek's arthritis causes her difficulty in reaching and gripping, she n o n e th e le ss can walk for an hour and lift and carry ten pounds for short distances. (A.R. 1 8 3 .) Because Boucek has pointed to no evidence that Dr. Fortman disagreed with the m e d ic a l consultants' opinions, the ALJ did not err in failing to discuss Dr. Fortman's

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opinions at stage three. See Diaz v. Chater, 55 F.3d 300, 308 (7th Cir. 1995) (noting that A L J is not required to discuss every piece of evidence to support a conclusion). B o u c e k also raises a host of arguments urging reversal in connection with the ALJ's s te p -f o u r analysis. At step four, the ALJ considered Boucek's medical history, treatment re c o rd s , and testimony regarding her daily activities, and concluded that despite her asthma, a rth ritis , and other pain, Boucek is capable of performing "sedentary work in a work e n v iro n m e n t free of respiratory irritants." (A.R. 14.) Boucek first argues that the ALJ failed to describe how her impairments and combination of impairments impact her ability to f u n c tio n . In assessing a claimant's residual functional capacity, an ALJ is required to p ro v id e a narrative explanation matching up the evidence to his conclusions. Briscoe ex rel. T a y l o r v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005); SSR 96-8p at *7. But the ALJ's d e c is io n will stand as long as the ALJ minimally articulates that narrative, such that this court c a n follow his reasoning and determine that the conclusions are supported by substantial e v id e n c e . See Skarbek, 390 F.3d at 503. Here, the ALJ sufficiently explained his conclusion th a t Boucek can perform sedentary work. The ALJ described the medical evidence

s u p p o rtin g her claims of knee and thumb pain, but noted that her knee pain is controlled with o v e r - t h e - c o u n te r medicine and that, even according to Boucek, her thumb was treated s u c c e s s f u lly. He considered her mitral valve regurgitation but noted that her most recent c a rd io g ra m showed that she was in normal limits and her cardiologist thought she was " c lin ic a lly doing well." (A.R. 213-14.) The ALJ noted that Boucek's last working

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environment exacerbated her asthma, but found no evidence suggesting that she could not w o rk in other office environments. The ALJ also explained that Boucek can do things like g o shopping, mow the lawn, garden, and prepare meals. Based on the combination of B o u c e k 's testimony regarding her daily activities and her treatment records showing that the s e v e rity of her pain and asthma are controlled by medication, the ALJ logically concluded th a t she can perform sedentary work. Next Boucek argues that the ALJ failed at step four to consider evidence that c o n tra d ic te d his conclusions. She then presents a laundry list of what she considers examples o f that evidence, and concludes that "[a]ll of the aforementioned evidence is reasonably related to severe exertional and nonexertional limitations which reasonably could be expected to derive from such conditions." (R. 31, Pl.'s Mem. at 12.) Boucek does not explain what f u n c tio n a l limitations her laundry list of evidence supports. And although she is correct that a n ALJ cannot ignore all evidence that contradicts his conclusions, see Indoranto v. B a r n h a r t , 374 F.3d 470, 474 (7th Cir. 2004), he is not required to discuss every scrap of e v id e n c e in the record, see Rice v. Barnhart, 384 F.3d 363, 371 (7th Cir. 2004). Here, the A L J recognized much of the evidence favorable to Boucek's claim, including her complaints o f pain, her diagnoses of asthma and mitral valve regurgitation, and the records revealing her " rig h t locked trigger thumb and a left foot bunion." (A.R. 15.) That he did not describe e v e r y condition that Boucek now lists in her brief does not constitute error, see Rice, 384 F .3 d at 371, especially where Boucek has not even attempted to demonstrate that any of the

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conditions she lists would restrict her ability to perform sedentary work in an office free of re s p ira to ry irritants. Boucek also argues that the ALJ played doctor and relied on "his own medical h u n c h e s " instead of record evidence. (R. 31, Pl.'s Mem. at 12.) Specifically, she argues that th e ALJ's observation that she controlled her pain with over-the-counter medication "carries n o significance because the ALJ is not a doctor." (Id. at 11.) But Boucek's pain-

m a n a g e m e n t regimen is just one factor the ALJ found to weigh against a finding that her pain is disabling, and that factor rests on Boucek's own testimony. Boucek also argues that the A L J made "medical guesses" when he concluded that her asthma is not disabling based on th e facts that her lungs are clear and she is able to treat her asthma with inhalers and without h o s p ita l treatment. But again, those observations are drawn from Boucek's medical records, n o t from "medical guesses," as Boucek suggests. Boucek also faults the ALJ for observing th a t the residual effects of her then-recent toe surgery should be transient. But Boucek h e rs e lf testified that the surgery had treated her toe problem and expressed optimism that the a rth ritis in her foot would be improved. (A.R. 30, 39-40.) Thus once again, the ALJ's o b s e rv a tio n is supported by record evidence instead of improper medical assumptions. Boucek half-heartedly suggests that the "ALJ would have benefitted from the advice of a m e d ic a l expert at the hearing." (R. 31, Pl.'s Mem. at 13.) But as the Commissioner points o u t, Boucek's attorney never asked the ALJ to consult a medical expert. Even now, Boucek

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does not explain what functional limitations a medical expert would have identified based o n the medical evidence. Finally, Boucek argues that the ALJ erred at step four in concluding that she can re tu rn to her prior relevant work as an accountant. She labels as "baseless" the ALJ's o b s e rv a tio n that no record evidence suggests Boucek could not work in an office free of re s p ira to ry irritants, but Boucek points to no evidence to suggest otherwise. (R 31, Pl.'s M e m . at 13.) Instead, she faults the ALJ for pointing out that according to the Social S e c u rity Reports, "most office environments do not have excessive pulmonary irritants." (A.R. 16 (citing SSR 85-15).) Boucek argues that the ALJ overlooked that the Social S e c u rity Reports go on to say that: "[w]here an individual can tolerate very little noise, dust, e tc ., the impact on the ability to work would be considerable because very few job e n v iro n m e n ts are entirely free of irritants, pollutants, and other potentially damaging c o n d itio n s ." SSR 85-15, at *8. But Boucek does not argue that she can function only in an e n v iro n m e n t that is "entirely free of irritants." Id. Indeed, Boucek herself described her p rio r work environment--the one which exacerbated her asthma--as being full of boxes of o ld , musty, dusty papers. She testified that after she left that particular environment, her a s th m a improved. She described caring for her pets, cleaning her house, shopping, and v is itin g doctors and never suggested that any of those situations or environments exacerbate h e r asthma. In her brief to this court she points to no evidence that supports her theory that

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she cannot work in any office at all. Accordingly, she has not shown that the ALJ erred in c o n c lu d in g that she can return to her past work as an accountant. Conclusion F o r the foregoing reasons, Boucek's Motion to Reverse the Final Decision of the C o m m is s io n e r of Social Security is denied. ENTER:

_________________________________ Y o u n g B. Kim U n ite d States Magistrate Judge

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