Townsend v. Kijakazi

Filing 24

ORDER signed by the Honorable Sheila M. Finnegan on 9/26/2024. For the reasons stated in the accompanying Order, Plaintiff's motion for summary judgment [11, 12] is denied, and the Commissioner's cross-motion for summary judgment is granted. The Clerk is directed to enter judgment in favor of the Commissioner. Civil case terminated. Mailed notice (sxw)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DONNA T.,
Plaintiff,
v.
MARTIN J. O’MALLEY,
Commissioner of Social Security,1
Defendant.

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No. 22 C 1323
Magistrate Judge Finnegan

ORDER
Plaintiff Donna T. seeks to overturn the final decision of the Commissioner of
Social Security (“Commissioner”) denying her applications for Disability Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the
Social Security Act.

The parties consented to the jurisdiction of the United States

Magistrate Judge pursuant to 28 U.S.C. § 636(c), and filed cross-motions for summary
judgment. After careful review of the record and the parties’ respective arguments, the
Court now grants the Commissioner’s motion.
BACKGROUND
Plaintiff protectively applied for DIB and SSI on July 16, 2020, alleging disability
since January 26, 2019 due to Darrach procedure to the left wrist, scapholunate ligament
repair to the left wrist, asthma, hypertension/high blood pressure, sciatica of the lower
back, and mallett (trigger) finger of the right middle digit. (R. 132-38, 213). Plaintiff

Martin O’Malley became the Commissioner of Social Security on December 20, 2023. He is
automatically substituted as the named defendant pursuant to FED. R. CIV. P. 25(d).
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subsequently amended the alleged onset date to October 1, 2020 due to disqualifying
substantial gainful activity. (R. 15, 35).
Born in June 1973, Plaintiff was 47 years old as of the alleged disability onset date
(R. 259), making her a younger person. 20 C.F.R. § 404.1563(c); 20 C.F.R. § 416.963(c).
She completed two years of college and lives in a home with her two children and three
grandchildren. (R. 42-43, 214). Plaintiff worked in the health care industry for many
years, holding positions as a certified nursing assistant and mental health worker. (R.
214). In January 2019, she was involved in an automobile collision and injured her left
wrist. (R. 308). This led to several surgeries but she continued to work full-time until
October 1, 2020. (R. 214). As of August 2021, Plaintiff was still working part-time as a
companion for an 85-year-old woman and as a personal assistant with the Department of
Rehabilitative Services. (R. 44, 214). None of the part-time work has qualified as
substantial gainful activity. (R. 15-16).
The Social Security Administration denied Plaintiff’s applications initially on
December 29, 2020, and again upon reconsideration on March 15, 2021. (R. 66-123,
126-38). Plaintiff filed a timely request for a hearing and appeared before administrative
law judge Carla Suffi (the “ALJ”) on August 11, 2021.2 (R. 27). The ALJ heard testimony
from Plaintiff, who was represented by counsel, and from vocational expert Julie Bose
(the “VE”). (R. 29-65). On September 28, 2021, the ALJ found that Plaintiff’s obesity,
hypertension, right third trigger finger, history of mallet finger status-post surgery, and left
wrist ligament injury status-post surgery are severe impairments, but that they do not

2

The hearing was held telephonically due to the COVID-19 pandemic.

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alone or in combination meet or equal any of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1. (R. 16).
After reviewing the evidence, the ALJ concluded that Plaintiff has the residual
functional capacity (“RFC”) to perform a reduced range of light work. (R. 16-20). The
ALJ accepted the VE’s testimony that a person with Plaintiff’s background and this RFC
could perform Plaintiff’s past work as a home health care aide, along with a significant
number of other jobs available in the national economy, including furniture rental clerk,
account investigator, and office helper. (R. 20-21). As a result, the ALJ concluded that
Plaintiff was not disabled at any time from the alleged disability onset date through the
date of the decision. (R. 21-22). The Appeals Council denied Plaintiff’s request for review
on January 7, 2022.

(R. 1-5).

That decision stands as the final decision of the

Commissioner and is reviewable by this Court under 42 U.S.C. §§ 405(g). See Haynes
v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005); Whitney v. Astrue, 889 F. Supp. 2d 1086,
1088 (N.D. Ill. 2012).
In support of her request for reversal or remand, Plaintiff argues that the ALJ: (1)
failed to consider significant medical evidence of record in determining her RFC; (2) erred
in evaluating her subjective statements regarding her symptoms; and (3) ignored VE
testimony regarding jobs available to a person with the use of only one hand. For reasons
discussed in this opinion, the Court finds that the ALJ’s decision is supported by
substantial evidence.

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DISCUSSION
A.

Standard of Review
A claimant is disabled within the meaning of the Social Security Act if she is unable

to perform “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 12 months.”3 20
C.F.R. § 404.1505(a). In determining whether a claimant suffers from a disability, an ALJ
must conduct a standard five-step inquiry, which involves analyzing: “(1) whether the
claimant is currently employed; (2) whether [the claimant] has a severe impairment or a
combination of impairments that is severe; (3) whether [the claimant’s] impairments meet
or equal any impairments listed as conclusively disabling; (4) whether [the claimant] can
perform . . . past work; and (5) whether [the claimant] is capable of performing any work
in the national economy.” Gedatus v. Saul, 994 F.3d 893, 898 (7th Cir. 2021) (citing 20
C.F.R. § 404.1520(a)-(g)). If the claimant meets her burden of proof at steps one through
four, the burden shifts to the Commissioner at step five. Id.
In reviewing an ALJ’s decision, the Court “will not reweigh the evidence, resolve
debatable evidentiary conflicts, determine credibility, or substitute [its] judgment for the
ALJ’s determination so long as substantial evidence supports it.” Warnell v. O’Malley, 97
F.4th 1050, 1052-53 (7th Cir. 2024) (quoting Gedatus, 994 F.3d at 900). Substantial
evidence is “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (citation omitted).
“[S]ocial-security adjudicators are subject to only the most minimal of articulation

3

Because the regulations governing DIB and SSI are substantially identical, for ease of reference,
only the DIB regulations are cited herein.

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requirements,” and ALJs need only provide “an explanation for how the evidence leads
to their conclusions that is sufficient to allow us, as a reviewing court, to assess the validity
of the agency’s ultimate findings and afford [the appellant] meaningful judicial review.”
Warnell, 97 F.4th at 1053-54 (internal quotations omitted) (in “shorthand terms,” an ALJ
must build a “logical bridge from the evidence to his conclusion.”); Morales v. O’Malley,
103 F.4th 469, 471 (7th Cir. 2024).
B.

Analysis
1.

RFC

Plaintiff argues that the case must be reversed or remanded because the ALJ
failed to consider significant evidence in determining her RFC. A claimant’s RFC is the
maximum work that she can perform despite any limitations. 20 C.F.R. § 404.1545(a)(1);
SSR 96-8p. “[T]he responsibility for the RFC assessment belongs to the ALJ, not a
physician, [but] an ALJ cannot construct his own RFC finding without a proper medical
ground and must explain how he has reached his conclusions.” Anna-Marie L. v. Kijakazi,
No. 21 C 50354, 2022 WL 4610120, at *2 (N.D. Ill. Sept. 30, 2022) (quoting Amey v.
Astrue, No. 09 C 2712, 2012 WL 366522, at *13 (N.D. Ill. Feb. 2, 2012)).
The ALJ found Plaintiff capable of light work with certain restrictions. Though
Plaintiff can use her dominant right arm without limitation, she can only use the nondominant left arm as follows: no gripping or lifting more than one pound; occasional gross
handling; frequent fine fingering/manipulation; and no pushing or pulling. Plaintiff is also
limited to: frequent stooping, kneeling, and crouching; occasional climbing of ramps and
stairs; no crawling; and no climbing of ladders, ropes, or scaffolds. Finally, she can never
perform work tasks involving exposure to concentrated amounts of wetness or vibration,

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or exposure to “extraordinary hazards such as unprotected heights and dangerous,
unguarded, moving mechanical parts that can engage the body.” (R. 16).
In support of this RFC, the ALJ set forth a detailed recitation of Plaintiff’s medical
history. Following her January 2019 auto accident, Plaintiff complained of left wrist pain
and pain in the right middle finger. (R. 17, 18). Between March and December 2019,
Plaintiff underwent three surgical procedures: (1) a closed reduction and internal fixation
of the right middle finger on March 25, 2019 (R. 17, 18, 379-80, 382-83); (2) a partial
denervation of the left hand and Darrach procedure of the left wrist on May 31, 2019 (R.
18, 397-99); and (3) a flexor carpal ulnaris tendon transfer, extension carpi ulnaris tendon
transfer, and internal fixation with K-wires of the scapholunate on December 16, 2019.
(R. 18, 426). By January 21, 2020, Plaintiff was “doing great” with no complaints of pain
and very good range of motion in the wrist. (R. 18, 436-37).
A few months later, on June 23, 2020, Plaintiff complained of left wrist pain again,
along with an inability to wash herself or to reach under her opposite arm. On exam,
however, treating surgeon Orhan Kaymakcalan, M.D., noted that Plaintiff brought her
hand to her head and neck with no difficulty and had full range of motion on the left. (R.
19, 442). Dr. Kaymakcalan documented an ability to lift one pound with each finger on
the left hand and recommended gentle occupational therapy (“OT”) with no heavy lifting
or pushing. He did not recommend additional surgery but invited Plaintiff to get a second
opinion.

(Id.).

On July 6, 2020, M. Vincent Makhlouf, M.D., agreed that surgical

intervention was not appropriate. Plaintiff exhibited tenderness mainly on palpation of the
scar on the wrist and had a positive scaphoid test that was not very acute in nature. (R.
19, 444). Dr. Makhlouf suspected that a scapholunate tear not apparent on x-ray was

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causing pain on the ulnar side of the wrist and recommended that Plaintiff resume OT.
(Id.).
When Plaintiff saw Dr. Kaymakcalan on August 4, 2020, she was doing well with
no acute pain, resting pain, or pain with normal activities of daily living. She did complain
of discomfort on strenuous activities during the examination but was able to bring her
hand to her head and back of head. Dr. Kaymakcalan observed no swelling and only
“slight minimal tenderness over the scar.” (R. 19, 446). He gave Plaintiff Salonpas,
Neurontin and Motrin and said she could not do “regular heavy work.” (Id.). Plaintiff was
subsequently discharged from OT on September 16, 2020. At that time, she had met all
of her short-term goals, including being able to increase left grip strength by 5-10 pounds
(to a total of 21 pounds) for opening containers independently. (R. 19, 599, 600). She
had also met several of her long-term goals and made improvements in pain level, range
of motion, and strength, with an increased ability to complete activities of daily living. (R.
19, 600-01).
Plaintiff does not explain how any of this medical evidence supports greater
functional restrictions or demonstrates that she was disabled as of the October 1, 2020
alleged onset date. Notably, the opinions of record support the opposite conclusion. On
December 11, 2020, state agency reviewer Sai Nimmagadda, M.D., determined that
Plaintiff has an RFC for light work with: occasional lifting and carrying of 20 pounds;
frequent lifting and carrying of 10 pounds; occasional climbing of ramps and stairs; no
climbing of ladders, ropes, or scaffolds; unlimited balancing, stooping, kneeling,
crouching, and crawling; and no concentrated exposure to wetness, vibration, or hazards.
(R. 74-77, 88-91). Reynaldo Gotanco, M.D., affirmed these findings on March 10, 2021.

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(R. 102-06, 115-19). The ALJ found both opinions “largely persuasive,” as they were
consistent with the evidence as a whole.

(R. 19-20).

The ALJ also credited Dr.

Kaymakcalan’s assessment that Plaintiff cannot perform heavy work and accounted for
that limitation in the RFC. (R. 19). Plaintiff does not address these opinions or challenge
the weight assigned to them. Jeske v. Saul, 955 F.3d 583, 597 (7th Cir. 2020) (arguments
not raised before the district court are waived). She also fails to identify any physician of
record who found her more limited than the ALJ. As the Seventh Circuit has stated, “[t]he
lack of an opposing medical opinion [imposing greater restrictions than those the ALJ
found in his decision] makes it difficult for us to find that the ALJ misjudged the evidence
so significantly as to warrant reversal.” Tutwiler v. Kijakazi, 87 F.4th 853, 860 (7th Cir.
2023).
Also unavailing is Plaintiff’s cursory objection that the ALJ erred in “discounting
[her] allegations of severe left wrist pain caused by medically determinable impairment.”
(Doc. 12, at 14). To begin, there is no merit to Plaintiff’s assertion that the ALJ’s use of
boilerplate credibility language requires remand. (Id. at 13). This is because the ALJ
provided several valid reasons for discounting Plaintiff’s testimony, none of which was
“patently wrong.” Grotts v. Kijakazi, 27 F.4th 1273, 1279 (7th Cir. 2022) (“As long as an
ALJ gives specific reasons supported by the record, [the Court] will not overturn a
credibility determination unless it is patently wrong.”). For example, the ALJ noted that
Plaintiff continued to work part-time, even as of the August 11, 2021 hearing. (R. 17, 4344); Dorothy B. v. Berryhill, No. 18 C 50017, 2019 WL 2325998, at *4 (N.D. Ill. May 31,
2019) (citing Berger v. Astrue, 516 F.3d 539, 545 (7th Cir. 2008)) (“The ALJ is entitled to
consider Plaintiff’s part-time work after her alleged onset date.”).

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The ALJ also observed that Plaintiff’s statements were inconsistent with objective
evidence. (R. 19). For instance, Plaintiff complained to Dr. Kaymakcalan in June 2020
that she could not reach under her opposite arm, but on exam, she brought her hand to
her head and neck with no difficulty and had full range of motion on the left. (R. 19, 446);
See Gwendolyn B. v. Saul, No. 20 C 3244, 2021 WL 1812879, at *8 (N.D. Ill. May 6, 2021)
(quoting Britt v. Berryhill, 889 F.3d 422, 426 (7th Cir. 2018)) (“[D]iscrepancies between
the objective evidence and self-reports may suggest symptom exaggeration.”). Plaintiff
does not mention these aspects of the ALJ’s credibility determination and has waived any
related challenges. Jeske, 955 F.3d at 597.
Moreover, in formulating the RFC, the ALJ imposed additional restrictions beyond
those articulated by the state agency reviewers to account for Plaintiff’s testimony
regarding her limitations (e.g., no gripping or lifting more than one pound; occasional
gross handling; frequent fine fingering/manipulation; no pushing or pulling; frequent
stooping, kneeling, and crouching; and no crawling). (R. 19-20). In other words, “[i]t was
because of and not in spite of [Plaintiff’s] testimony that the ALJ limited her to a more
restrictive residual functional capacity finding than any physician on the record.” Castile
v. Astrue, 617 F.3d 923, 929 (7th Cir. Aug. 13, 2010). Nothing about this assessment
constitutes reversible error.
Plaintiff insists that remand is still required because the ALJ did not address
records showing that on May 24 and June 21, 2021, she returned to Dr. Makhlouf with
continuing left hand scapholunate ligament pain. (R. 562-63). Dr. Makhlouf documented
reduced range of motion of 25/55 and significant discomfort on palpation of the left wrist.
He was unable to “pinpoint the source” of Plaintiff’s pain but stated that since a lidocaine

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injection did not help, additional surgery was required. (Id.). Plaintiff says she had a
proximal row carpectomy approximately one month after the August 11, 2021 hearing
and argues that this supports her claims of disabling pain and limitation. (Doc. 12, at 14).
Even assuming the ALJ erred in failing to mention these additional records from
Dr. Makhlouf, any such error was harmless. Wilder v. Kijakazi, 22 F.4th 644, 654 (7th
Cir. 2022) (quoting Butler v. Kijakazi, 4 F.4th 498, 504 (7th Cir. 2021)) (“We have
repeatedly emphasized that ‘the harmless error standard applies to judicial review of
administrative decisions, and we will not remand a case to the ALJ for further specification
where we are convinced that the ALJ will reach the same result.’”). The ALJ was well
aware of Plaintiff’s ongoing left wrist problems and heard testimony about another
planned surgical procedure. (R. 41-42). The ALJ also asked Plaintiff’s counsel about
additional medical documents and held the record open for their submission. (R. 13, 3132, 64). Despite this, Plaintiff did not provide a functional capacity assessment from any
of her physicians, including Dr. Makhlouf, much less one indicating that she has greater
restrictions than those identified by the ALJ. Tutwiler, 87 F.4th at 860; Summers v.
Berryhill, 864 F.3d 523, 527 (7th Cir. 2017) (“[B]ecause Summers was represented by
counsel at the hearing, she is presumed to have made her best case before the ALJ.”).
Plaintiff’s mere speculation that she “perhaps” cannot use her left arm at all anymore after
the September 2021 surgery (Doc. 15, at 4-5), is insufficient to justify a remand,
particularly absent corroborating medical evidence. Stewart v. Berryhill, 731 F. Appx.
509, 510 (7th Cir. 2018) (“Unsubstantiated claims are of course, no substitute for
evidence.”) (internal quotations omitted).

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Viewing the record as a whole, the ALJ reasonably considered the medical
opinions, treatment history, and testimonial evidence in determining Plaintiff’s RFC.
Plaintiff may believe that her condition has worsened since the ALJ issued her decision
on September 28, 2021, but her recourse is to file a new application for benefits and
provide appropriate medical support. Getch v. Astrue, 539 F.3d 473, 484 (7th Cir. 2008).
On the record presented, the ALJ’s decision is supported by substantial evidence. Robert
S. v. Kijakazi, No. 20 C 6286, 2022 WL 45036, at *4 (N.D. Ill. Jan. 5, 2022) (“The
substantial evidence standard is a low hurdle to negotiate.”).
2.

VE Testimony

Plaintiff next argues that the ALJ improperly ignored important testimony from the
VE. During the August 11, 2021 hearing, the ALJ asked the VE a question about jobs
available to a hypothetical person who could perform one-handed tasks using the
dominant right upper extremity, but could not use the non-dominant arm as an assist. (R.
61). The VE testified that such a person would not be capable of any sedentary or light
jobs. (Id.). Plaintiff insists that she cannot use her left arm as an assist under her right
arm and so the ALJ should have found her disabled. (Doc. 12, at 14-15; Doc. 15, at 4).
This argument is unpersuasive because there is no medical evidence indicating
that Plaintiff is incapable of using her left arm as an assist. It is well-established that “only
limitations supported by the medical record must be incorporated into the hypothetical
posed to the VE and the ALJ’s RFC assessment.” Eric W. v. Kijakazi, No. 22 C 3894,
2023 WL 8281480, at *4 n.4 (N.D. Ill. Nov. 30, 2023) (citing Yurt v. Colvin, 758 F.3d 850,
857 (7th Cir. 2014)). In addition, it “is not reversible error where the hypothetical question
posed to the VE was more restrictive than the limitations the ALJ ultimately assigned to

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the claimant.” Kathleen C. v. Saul, No. 19 C 1564, 2020 WL 2219047, at *6 (N.D. Ill. May
7, 2020) (internal quotations omitted). Here, no physician of record suggested that
Plaintiff cannot use her left arm as an assist and the medical record amply supports the
restrictions set forth in the RFC. The ALJ was not required to accept Plaintiff’s contrary
testimony.
In her reply brief, Plaintiff takes issue with the VE’s testimony that a person with
her RFC for light work could perform her past relevant work as a home health care
aide/personal assistant, noting that those jobs are considered medium according to the
Dictionary of Occupational Titles. (Doc. 15, at 4). As a preliminary matter, “arguments
raised for the first time in a reply brief are deemed waived.” Griffin v. Bell, 694 F.3d 817,
822 (7th Cir. 2012). Moreover, the VE testified, and the ALJ found that Plaintiff could
handle her past work as she actually performed it at the light and sedentary levels. (R.
20, 58-59). This was entirely proper. Peterson v. Saul, No. 19 C 3086, 2020 WL
3949237, at *3 (C.D. Ill. June 25, 2020) (citing 20 C.F.R. § 404.1560(b)(2)) (“Generally,
Step 4 provides that a person is not disabled if she can perform the job as the job is
generally performed in the national economy or as she actually performed it.”). And the
ALJ went on to identify three additional jobs that the VE testified Plaintiff could perform,
including furniture retail clerk, account investigator, and office helper, which all fall within
the light exertional level. (R. 21, 60-61). Plaintiff does not raise any specific objection as
to these positions. Jeske, 955 F.3d at 597.
Viewing the record as a whole, the ALJ did not err in relying on the VE’s testimony
at Steps 4 and 5 of the sequential analysis. Plaintiff’s request to remand the case for
further consideration of this issue is denied.

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CONCLUSION
For the reasons stated above, Plaintiff’s motion for summary judgment [11, 12] is
denied, and the Commissioner’s cross-motion for summary judgment is granted. The
Clerk is directed to enter judgment in favor of the Commissioner.
ENTER:

Dated: September 26, 2024

_____________________________
SHEILA FINNEGAN
United States Magistrate Judge

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