Buffolino v. Astrue

Filing 31

MEMORANDUM Opinion and Order; For the reasons given, Plaintiff's motion for summary judgment (Dkt. 14 ) is denied, and the Commissioner's motion (Dkt. 19 ) is granted. The decision of the ALJ is affirmed. (See attachment for full detail.) Signed by the Honorable Iain D. Johnston on 3/20/2015: (yxp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
Joseph A. Buffolino,
Plaintiff,
v.
Colvin, 1

Carolyn W.
Acting Commissioner of the
Social Security Administration,
Defendant.

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Case No. 12 CV 50245
Magistrate Judge Iain D. Johnston

MEMORANDUM OPINION AND ORDER
Plaintiff Joseph A. Buffolino brings this action under 42 U.S.C. § 405(g),
seeking reversal or remand of the decision denying him social security disability
benefits. For the following reasons, the decision is affirmed.
I. BACKGROUND 2
On February 25, 2008, Plaintiff filed an application for disability insurance
benefits and supplemental security income, alleging a disability beginning on
June 30, 2006. R. 40-41, 551. He was 42 years old at the time of the alleged onset
date. R. 21. On November 30, 2010, the Administrative Law Judge (“ALJ”) held a
hearing to review the Social Security Administration’s denial of Mr. O’Neill’s
request for benefits. R. 546-80. The same attorney representing Plaintiff in this

Commissioner Carolyn W. Colvin has been automatically substituted as the
Defendant pursuant to Federal Rule of Civil Procedure 25(d).
2 The following facts are only an overview of the evidence provided in the
administrative record.
1

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action also represented him at the hearing. Plaintiff and Vocational Expert
Margaret Ford (“VE”) testified at the hearing.
Plaintiff testified that he was 46 years old at the time of the hearing. R.549.
He received his GED and had lived with his mother for the past 14 years. R. 550.
Plaintiff last worked in 2002, citing problems with his eye and neck. R. 552, 554.
Plaintiff’s work history from 1999 to 2002 included jobs as a sorter in a factory,
grass cutter, forklift driver, and landscaper. R.554-57. Additionally, while Plaintiff
was incarcerated from December 2006 until February 2008, he worked in the
kitchen serving food. R. 568-69.
Plaintiff testified that around 2000, he lost his right eye, which resulted in
problems with his depth perception. R. 552, 565. This sometimes caused Plaintiff
to hit his head on low ceilings or drop things. R. 565. Plaintiff also testified that
around the same time, he injured his neck when he lifted 300 pounds on his
shoulder, which resulted in the need for a cervical spine fusion at C6-7. R. 552, 557,
570. Following the fusion, he suffered from persistent neck pain. R. 552. Plaintiff
testified that the pain occurred on a daily basis, and he described it as “pins and
needles” that occurred when he turned his neck or looked upward. R. 563. Plaintiff
rated the pain, even with pain medication, at a six or seven out of ten since 2009.
R. 563-64. Due to the pain, he would lie in bed and watch television for seven and a
half hours a day between the times of 8 a.m. and 5 p.m. R. 558. As of June 2006,
Plaintiff spent four or five hours lying down during the day. R. 559.

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Plaintiff also testified that for the past few years he has had pain in his left
shoulder. R. 564-65. He explained that his left arm would go numb if he moved his
neck in a certain direction. R. 564. Plaintiff also complained about fatigue, night
sweats and dizziness, which started sometime in 2009. R. 566, 568. The dizziness
occurred once or twice a month. R. 571. Plaintiff also suffered from hepatitis C,
stage III kidney disease and reported a constant ringing in his ears, though the
ringing did not hinder his ability to hear and understand those around him. R. 56768, 572. Plaintiff also testified that in 2009 he broke his left wrist, cracked his rib
and received a laceration to his head when he fell. He was also in a car accident in
2009 and received whip-lash to his neck and a bruised leg. R. 553-54.
According to Plaintiff, at the time of the hearing he could walk or stand for 30
to 45 minutes before getting tired. R. 566, 573. His doctor told him not to lift more
than 10 pounds. R. 572. Additionally, Plaintiff could only sit for 30 minutes at a
time before his “butt gets numb.” R. 572. He did not do any household chores, but
he would accompany his mother shopping once every few months. R. 549-50, 55960. Plaintiff would also leave the house two or three times a month for doctors’
appointments. R. 561.
The VE testified that Plaintiff’s past relevant work would be considered
unskilled and ranged from light to heavy exertion. R. 579-80. The ALJ posed the
following hypothetical to the VE: can lift and carry 20 pounds occasionally and 10
pounds frequently, may sit, stand and walk with normal breaks for up to six hours
in an eight-hour workday, cannot climb ladders, ropes or scaffolds, may climb ramps

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or stairs, balance, stoop, kneel, crouch and crawl occasionally, may use the left
upper extremity to perform overhead work occasionally, may use the left hand for
fine manipulative tasks such as fingering or pinching frequently, must avoid
concentrated exposure to extreme cold, has no vision in the right eye, and must
avoid exposure to unprotected heights or excavations and exposed, unprotected
dangerous moving machinery. R. 581-82. In providing this hypothetical, the ALJ
specifically asked Plaintiff if he was right or left-handed. R. 581. Plaintiff indicated
he was right-handed. Id.
The VE opined that the hypothetical person would not be able to perform any
past relevant work, but there would be unskilled jobs at a light and sedentary
exertion level available. R. 582-83. In a second hypothetical offered by the ALJ, the
claimant, in addition to the restrictions previously listed, could lift and carry 10
pounds occasionally, lift and carry lighter items on a frequent basis, stand and walk
with normal breaks for a combined total of two hours in an eight-hour workday and
for no more than 30 minutes at a time. R. 584. The VE opined that the
hypothetical person would be limited to sedentary, unskilled work. The VE
explained that such positions allow the person to stand and sit at will, but that the
standing and sitting requirement was dependent upon the specific job. R. 584-85.
The jobs were at eye level and would not require a person to look upward. R. 588.
Additionally, the VE explicitly stated that she accommodated for work that did not
require normal depth perception. R. 584. The VE identified two jobs at the

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sedentary level, namely a telephone solicitor, with 2,050 jobs regionally and 6,150
jobs in Illinois, and an order clerk, with 19,250 jobs in Illinois. R. 583, 586.
Plaintiff’s counsel asked the VE if the skill level of the telephone solicitor job
was semiskilled. R. 587. The VE responded, incorrectly, that the job was unskilled
with an SVP of 2. R. 588.
The relevant medical evidence presented to the ALJ revealed that in 1999,
Plaintiff suffered an injury to his neck and left arm after carrying a railroad tie at
work. R. 266. A magnetic resonance imaging (“MRI”) revealed a large lateral disk
herniation at C6-7 with narrowing and dehydration of the C6-7 disk. R. 291.
Plaintiff also had moderate diffuse dorsal disk bulging and endplate spurring. Id.
In 2000, Plaintiff underwent cervical spine fusion at the C6-7 level. R. 161, 236. In
2002, Plaintiff lost his right eye to glaucoma and later received a prosthetic eye. R.
153, 175, 236.
In 2004, Plaintiff reported chronic neck pain and paresthesia of the face and
left arm for the past six months. R. 161. An x-ray from 2004 revealed degenerative
changes at the base of the cervical spine. R. 170. In February 2005, he reported
discomfort following the fusion in his neck and occasional tingling in his face. R.
155. In October 2005, Plaintiff fell while attempting to pour concrete into a
basement and hurt his head, arm, ribcage and leg and fractured his left wrist. R.
151, 168, 254. Plaintiff reported no neck pain, and an examination revealed that
his neck was supple with no anterior or posterior tenderness. R. 254-55. In
December 2005, Plaintiff again fell and injured his left wrist. R. 252. Plaintiff

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reported neck pain, but he did not have numbness or tingling in his extremities. Id.
Plaintiff’s examination revealed that his neck was soft and supple. Id. Plaintiff had
pain and swelling in his wrist, but had normal sensation. Id. X-rays from 2004
through 2007 revealed mild degenerative changes at C5-6 with hypertrophic
spurring from C3-4 through C5-6. R. 211, 273, 275, 277. In 2006, Plaintiff reported
to the emergency room with complaints of neck and throat pain when he turned his
head. R. 250. The emergency room doctor opined that Plaintiff’s pain was
attributable to an exudative pharyngitis. Id. An evaluation from February 2007
revealed Plaintiff’s neck and spine were in normal condition and he had full
strength and range of motion in his extremities. R. 181. In October 2009, Plaintiff
was involved in a car accident and reported to the emergency room with complaints
of head and neck pain. R. 245. The emergency room doctor opined that Plaintiff
suffered a closed head injury and a cervical strain. R. 246. An x-ray in April 2010,
revealed no degenerative changes in the C5-6, C6-7 and C7-T1 levels since
June 2006 and October 2009. R. 271-72. An examination from September 2010
revealed that Plaintiff had tenderness in his cervical spine and his range of motion
reduced by one-third. R. 455.
On June 9, 2008, Dr. Kamlesh Ramchandani performed a consultative
examination of Plaintiff. R. 214. The report stated that Plaintiff complained of
neck pain for the last 10 years and numbness in his left hand. Id. Plaintiff’s
physical examination showed that Plaintiff was in no acute physical distress and
his gait was normal and unassisted. R. 215. Plaintiff was unable to look upward

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and was limited in his ability to rotate his neck to either side. R. 217. His grip
strength on his left side was “4/5” while his right side was “5/5.” R. 215. Plaintiff
lacked sensation in his left fourth and fifth fingers and his neck was stiff. Id.
However, Plaintiff was able to make a fist, pick up objects, open and close the door,
oppose his thumb to his fingers and flip pages, and he had no limitations with his
wrists. R. 215, 219.
On June 25, 2008, non-examining state-agency physician Dr. Marion
Penepinto completed a residual functional capacity (“RFC”) assessment of Plaintiff
after reviewing his file. R. 220. She found that Plaintiff could occasionally lift 50
pounds and frequently lift 25 pounds. R. 221. He could stand, walk and sit for six
hours in an eight-hour workday. Id. Plaintiff lacked rotation in the cervical spine
and was limited to occasional pushing and pulling with upper extremities due to his
complaint of neck pain. R. 222. Dr. Penepinto found that Plaintiff was limited in
reaching on his left side and feeling with his left upper extremity due to his neck
pain and lack of sensation in two of the fingers in his left hand. R. 233. Dr.
Penepinto noted that Plaintiff was right-handed and found that Plaintiff was
unlimited in his ability for gross and fine manipulation. Id. Plaintiff had occasional
numbness in his left hand and had a slight reduction in grip strength. R. 221.
Plaintiff was also limited in his depth perception and field of vision due to the loss
of his right eye. R. 223. Dr. Penepinto found that Plaintiff’s reported activities
were partially credible, but his reports of severe limitations in walking and
standing were not supported by the medical evidence. Id.

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At Plaintiff’s request, on March 31, 2009, Dr. Ramchandani conducted a
second consultative examination of Plaintiff. R. 236. The background information
Dr. Ramchandani listed for Plaintiff’s 2009 examination differed slightly from the
background listed for the 2008 examination. Plaintiff previously complained of neck
pain for 10 years and numbness in his left hand. R. 214. At his 2009 examination,
Plaintiff complained of neck pain for the past seven years, a backache for the past
year, numbness in his left shoulder, left thumb and index finger and ringing in his
ears for the past two years. R. 236-37. The results in Dr. Ramchandani’s 2009
report were similar to the results in his 2008 examination, except that he found a
slightly more limited range of motion in Plaintiff’s wrists. R. 215, 219, 237, 241.
Following this examination, on April 8, 2009, state-agency physician Dr. George
Andrews completed a Request for Medical Advice form in which he concurred with
Dr. Penepinto’s RFC determination from June 28, 2008. R. 244. In concurring, Dr.
Andrews noted that Plaintiff’s new complaint of ringing in his ears did not impair
his ability to hear and respond to normal conversation. Id.
On March 25, 2011, the ALJ issued his ruling finding that Plaintiff was not
disabled. R. 13-23. The ALJ found that Plaintiff had multiple severe impairments,
including: loss of right eye vision; degenerative disease of the cervical spine, with
status post C6-C7 fusion in January 2000; degenerative disease of the lumbar spine,
hips, right wrist, pelvis, ankles; hepatitis C; chronic kidney disease; and a history of
polysubstance abuse and dependence. R. 17. The ALJ found that Plaintiff’s
impairments did not meet or medically equal a listing impairment. Id. The ALJ

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concluded that Plaintiff had the RFC to perform sedentary work subject to, among
other things, the following limitations: sit with normal breaks no more than six
hours in an eight-hour workday, with the option of alternating from a sitting to a
standing position as needed or at will; and perform fine manipulative tasks, such as
fingering or pinching, with the left hand no more than frequently. Id. Based on the
VE’s testimony, the ALJ determined that Plaintiff had the RFC to do sedentary,
unskilled work and could perform the jobs of telephone solicitor and order clerk. R.
16, 22.
II. LEGAL STANDARD
A reviewing court may enter judgment “affirming, modifying, or reversing the
decision of the [Commissioner], with or without remanding the cause for a
rehearing.” 42 U.S.C. § 405(g). If supported by substantial evidence, the
Commissioner’s factual findings are conclusive. Id. Substantial evidence exists if
there is enough evidence that would allow a reasonable mind to determine that the
decision’s conclusion is supportable. Richardson v. Perales, 402 U.S. 389, 399-401
(1971). Accordingly, the reviewing court cannot displace the decision by
reconsidering facts or evidence, or by making independent credibility
determinations. Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008). However, the
Seventh Circuit has emphasized that review is not merely a rubber stamp. Scott v.
Barnhart, 297 F.3d 589, 593 (7th Cir. 2002) (a “mere scintilla” is not substantial
evidence). If the Commissioner’s decision lacks evidentiary support or adequate
discussion, then the court must remand the matter. Villano v. Astrue, 556 F.3d 558,

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562 (7th Cir. 2009). Moreover, a reviewing court must conduct a critical review of
the evidence before affirming the Commissioner’s decision. Eichstadt v. Astrue, 534
F.3d 663, 665 (7th Cir. 2008). Indeed, even when adequate record evidence exists to
support the Commissioner’s decision, the decision will not be affirmed if the
Commissioner does not build an accurate and logical bridge from the evidence to the
conclusion. Berger v. Astrue, 516 F.3d 539, 544 (7th Cir. 2008).
III. DISCUSSION
Plaintiff argues that the ALJ’s decision should be reversed or remanded for
two reasons. Plaintiff asserts that the ALJ: 1) improperly assessed his RFC by
determining he had the ability to perform fine manipulative tasks with his left hand
frequently instead of occasionally; and 2) improperly relied on the VE’s testimony.
In light of Plaintiff’s undeveloped arguments, lack of citation to case law and lack of
analysis of the medical records at issue, the Commissioner argues Plaintiff has
forfeited his claim of error regarding the ALJ’s RFC determination. This Court
agrees that the argument is forfeited and also finds some of Plaintiff’s other cursory
arguments forfeited. See Jarrard v. CDI Telecomm., Inc., 408 F.3d 905, 916 (7th
Cir. 2005) (perfunctory and undeveloped arguments that are unsupported by
pertinent authority are forfeited on appeal). Plaintiff has also forfeited these
cursory arguments by not adequately responding to the Commissioner’s arguments
in his reply brief. See Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010)
(explaining that arguments not raised in response brief are forfeited). Nevertheless,

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putting forfeiture aside, none of Plaintiff’s arguments to this Court justify reversal
or remand.
A. Manipulative Limitations in the RFC
In his RFC determination, the ALJ found that Plaintiff was limited to no
more than frequent fine manipulation with his left hand. Plaintiff argues that the
ALJ should have limited Plaintiff’s fine manipulation to occasional use (up to onethird of work day) instead of frequent use (up to two-thirds of the work day). In
support of his argument, Plaintiff recites some of the evidence in the record, but he
fails to discuss how any of these records, or his own testimony, support a limitation
of occasional fine manipulation. Most of the cited records do not reference Plaintiff’s
left hand or any related limitations, with the exception of Dr. Ramchandani’s
evaluation from March 2009 indicating that Plaintiff had reduced sensation to
touch and pin prick in his left thumb, index finger and radial border of the left
forearm. R. 238. The ALJ acknowledged this finding in making his RFC
determination, but noted that the report also stated that Plaintiff was still able to
make a fist, pick up objects, open and close the door, oppose his thumb to his fingers
and flip pages. R. 21. Furthermore, Plaintiff’s only testimony regarding his left
hand, despite being questioned by his own counsel, was a reference to occasionally
dropping things due to his limited depth perception and a wrist fracture he received
after a fall.
Although Plaintiff complains that the ALJ cited to the medical records
without analyzing Plaintiff’s manipulative limitations, Plaintiff has done the same

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by merely citing to the record without analyzing the medical records or explaining
how they support his argument. See Cabrera v. Astrue, No. 10 C 4715, 2011 U.S.
Dist. LEXIS 42624, at *36 (N.D. Ill. Apr. 20, 2011) (finding nothing improper with
the ALJ’s RFC determination regarding the plaintiff’s hand limitations where the
plaintiff cited no medical authority for her theory); Farrah v. Colvin, No. 12 CV
50343, 2015 U.S. Dist. LEXIS 31691, *12 n. 2 (N.D. Ill. Mar. 16, 2015) (noting that
plaintiff’s counsel’s practice of complaining about an ALJ’s alleged lack of analysis
was “reminiscent of the pot calling the kettle black.”). Plaintiff cites to Social
Security Ruling (“SSR”) 96-9p as recognizing “that the inability to perform jobs
requiring bilateral manual dexterity significantly erodes the occupation base of
sedentary jobs.” Dkt. 14 at 10. SSR 96-9p provides that “[a]ny significant
manipulative limitation on an individual’s ability to handle and work with small
objects with both hands will result in a significant erosion of the unskilled
sedentary occupational base.” SSR 96-9p (emphasis in original). However, “[w]hen
the limitation is less significant, especially if the limitation is in the non-dominant
hand, it may be useful to consult a vocational resource.” SSR 96-9p.
In this case, the ALJ offered a hypothetical to the VE that limited the
individual’s fine manipulation with the non-dominant, left hand to no more than
frequently. Based on this hypothetical, the VE opined that the claimant could
perform unskilled jobs at a light and sedentary exertion level, which existed in
significant numbers in the national economy. Although Plaintiff accuses the ALJ of
failing to specifically discuss his manipulative limitations with the VE, the ALJ

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explicitly included such limitations in the hypothetical to the VE and nothing
indicates the VE did not take the entire hypothetical into account when offering her
opinion.
In asserting error with the ALJ’s RFC determination, Plaintiff also makes
cursory arguments that the ALJ: 1) impermissibly played doctor; 2) failed to have a
medical expert testify at the hearing; and 3) did not properly evaluate Plaintiff’s
credibility as required by SSR 96-7p, which calls for a seven-step analysis where
Plaintiff’s symptoms as to some impairments may be stronger than the medical
evidence provides. Plaintiff cites no authority to support his first two arguments
and he appears to abandon them in his reply brief. For these reasons, we find the
arguments forfeited. See Bonte, 624 F.3d at 466. Based on this Court’s review of
the record, any alleged error committed by the ALJ in determining that Plaintiff
was not disabled is not so obvious that Plaintiff’s arguments did not require
elaboration, especially in light of the fact that it was Plaintiff’s burden to show he
was disabled and he was represented by counsel at the hearing. See Young v.
Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004) (claimant has burden in steps one
through four); Wilkins v. Barnhart, 69 F. App'x 775, 781 (7th Cir. 2003) (stating
that an ALJ is entitled to assume that a claimant represented by counsel is making
his strongest case for benefits).
The Court similarly finds Plaintiff’s perfunctory argument regarding the
ALJ’s credibility determination not only forfeited for lack of development, but also
without merit. An ALJ’s credibility determination need not be flawless and should

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be reversed only if it is “patently wrong.” Simila v. Astrue, 573 F.3d 503, 517 (7th
Cir. 2009); see also Milliken v. Astrue, 397 Fed. App’x. 218, 225 (7th Cir. 2010)
(appellant has a “heavy burden of showing that the ALJ's credibility determination
is patently wrong.”). SSR 96-7p provides that a claimant’s statements regarding
symptoms or the effect of symptoms on his ability to work “may not be disregarded
solely because they are not substantiated by objective evidence.” SSR 96-7p.
Factors that the ALJ should consider in evaluating a claimant’s credibility include
the objective medical evidence and the claimant’s daily activities, allegations of
pain, aggravating factors, the types of treatment received, medications taken and
functional limitations. SSR 96–7p. The ALJ need not necessarily address all of
these factors in evaluating credibility. Clay v. Apfel, 64 F. Supp. 2d 774 (N.D. Ill.
1999).
Plaintiff makes little effort to indicate which of Plaintiff’s symptoms are
stronger than the medical evidence provides or what factors would demonstrate his
credibility. See Schomas v. Colvin, 732 F.3d 702, 708 (7th Cir. 2013) (finding
forfeiture where the claimant failed to point to a single factor outlined in SSR 96-7
that would support his argument). From the arguments presented to this Court, it
appears that Plaintiff only takes issue with the ALJ’s evaluation of his left hand
limitations. As discussed above, Plaintiff provided almost no testimony regarding
his left hand limitations. Without elaboration on this argument, it is unclear what
symptoms Plaintiff believes the ALJ should have found credible. Furthermore,

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Plaintiff points to nothing in the record to indicate that the ALJ overlooked key
evidence that would support a finding that Plaintiff was disabled.
Although the ALJ may not have provided as much analysis as Plaintiff would
have liked, it was not patently wrong. See Simila, 573 F.3d at 517. In determining
Plaintiff’s credibility, despite including some boilerplate language, the ALJ provided
support for his determination in the analysis of Plaintiff’s RFC. See Sawyer v.
Colvin, 512 Fed. App’x 603, 608 (7th Cir. 2013) (finding that the regulations
anticipate overlap between the ALJ’s analysis of the claimant’s RFC and
credibility); Schomas v. Colvin, 732 F.3d 702, 708 (7th Cir.2013) (explaining that
the use of boilerplate language is not problematic when the ALJ supplies reasons
for the credibility determination). The ALJ did not selectively consider the
evidence, but instead provided a meaningful review of the majority of Plaintiff’s
testimony regarding his limitations, activities and pain and compared it to the
objective medical evidence in the record. The ALJ highlighted where the medical
records did not support Plaintiff’s alleged symptoms.
For example, the ALJ pointed out that although Plaintiff complained of neck
pain and numbness in the fingers on his left hand, the medical records did not
reveal any limitations on Plaintiff’s activity. Plaintiff suffered a broken left wrist in
2005, but no significant residual symptoms were reported. Plaintiff had a cervical
spine fusion in 2000, but no limitations upon activity were reported during an
examination and CT scan in 2004. In 2005 and 2006, Plaintiff had tenderness in
his neck and wrist and reduced range of motion in the wrist, but no limitations

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upon activity were reported. Records from 2006 revealed mild degenerative disk
disease where Plaintiff had his neck fusion and a diagnosis of neck pain secondary
to pharyngitis; however, Plaintiff’s records from 2007 revealed normal range of
motion in his spine and normal strength in all extremities. Furthermore, the
consultative examinations from 2008 and 2009 revealed that Plaintiff had a loss of
sensation in his thumb and two fingers on his left hand, but his grip strength
remained at a “4/5”, cervical flexion was at “45/50” degrees and Plaintiff was still
able to oppose his thumb to his fingers, pick up objects and flip pages. Again, no
limitations on activity were reported. In 2008 and 2009, a state-agency reviewing
physician opined that Plaintiff had the capacity to perform medium work, noting
that there was insufficient evidence to support any limitations as of the onset date.
Despite the lack of reported limitations in Plaintiff’s medical records, the ALJ
nonetheless included the majority of the limitations Plaintiff described at the
hearing in the RFC determination. For instance, Plaintiff complained that he
would get tired if he walked for more than 30 minutes and could only sit for 30
minutes before experiencing numbness. His RFC included restrictions for standing
or walking no more than two hours in a work-day and no more than 30 minutes at a
time. His RFC also stated that Plaintiff must be able to alternate from standing to
sitting as needed. The ALJ also specifically confirmed with the VE that the
sedentary jobs he could perform did not require Plaintiff to look upward, which
Plaintiff reported caused some of his neck pain. Accordingly, the ALJ’s credibility

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determination in discounting some of Plaintiff’s claims of disabling symptoms was
based on and supported by substantial evidence in the record.
B. Reliance on the Vocational Expert
Plaintiff also argues that the ALJ improperly relied on the VE’s testimony.
Specifically, Plaintiff argues that the two sedentary jobs offered by the VE could not
be performed by Plaintiff based on the ALJ’s RFC determination.
The ALJ determined that Plaintiff retained the RFC to perform sedentary,
unskilled work with certain limitations. The VE offered two jobs that Plaintiff
would be able to perform, telephone solicitor and order clerk. Contrary to what the
VE testified to at the hearing, the Dictionary of Occupations Titles (“DOT”)
classifies the telephone solicitor job, DOT 299.357-014, as semi-skilled with an SVP
of 3. Therefore, the Court agrees with Plaintiff that he could not perform this job
under the ALJ’s RFC determination.
However, the VE also testified that Plaintiff could perform the order clerk
position, DOT 209.567-014, which is unskilled with an SVP of 2. Despite this,
Plaintiff still argues that he would not be able to perform this job because the
description suggests a considerable amount of “manipulative activity (and depth
perception from an individual such as Plaintiff with only one eye).” Dkt. 14 at 11.
The DOT provides the following description for order clerk:
Takes food and beverage orders over telephone or intercom system and
records order on ticket: Records order and time received on ticket to
ensure prompt service, using time-stamping device. Suggests menu

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items, and substitutions for items not available, and answers questions
regarding food or service. Distributes order tickets or calls out order to
kitchen employees. May collect charge vouchers and cash for service
and keep record of transactions. May be designated according to type
of order handled as Telephone-Order Clerk, Drive-In (hotel & rest.);
Telephone-Order Clerk, Room Service (hotel & rest.). GOE: 07.04.02
STRENGTH: S GED: R3 M1 L2 SVP: 2 DLU: 77
DOT 209.567-014, available at http://www.occupationalinfo.org/20/209567014.html.
The Commissioner cites to an extended description of the order clerk position,
which appears to include some of the explanations provided by The Revised
Handbook for Analyzing Jobs (1991), available at
http://www.vocational.org/Analysis/RHAJ.pdf. In this extended description, it
states that an order clerk requires minimal finger and manual dexterity and does
not require depth perception. DICOT 209.567-014, 1991 WL 671794 (G.P.O). The
position only requires frequent handling and fingering, but no feeling is required.
Id. Accordingly, the VE’s testimony that Plaintiff could perform this job is not in
conflict with the DOT description. Furthermore, any reliance by the ALJ on the
telephone solicitor jobs was harmless in light of a significant number of order clerk
jobs in the national economy, with 19,250 available in Illinois. See Stanley v.
Astrue, 410 Fed. App’x. 974, 976 (7th Cir. 2011) (finding 1,000 or more jobs to be in
significant numbers); Burton v. Colvin, 1:12–cv–676–DKL–WTL, 2013 WL 5486788,
at *4 (S.D. Ind. Sept. 30, 2013) (finding any error by the ALJ’s reliance on the VE’s

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testimony about a job the claimant might not be able to perform harmless where
there were 9,000 available jobs in Indiana that satisfied the ALJ’s RFC
determination).
Plaintiff also takes issue with the fact that the ALJ never discussed
Plaintiff’s manipulative limitations and limited depth perception with the VE. The
Court finds this argument unpersuasive because although there was no explicit
discussion, the hypothetical posed by the ALJ adequately portrayed both of these
limitations. The VE testified that with those limitations, Plaintiff could not perform
his past work, but could perform the job of an order clerk and specifically noted that
she accommodated for work that did not require normal depth perception. The
Court also notes that counsel had the opportunity to question the VE about
Plaintiff’s specific limitations at the hearing, but failed to do so. Accordingly,
remand is not warranted on these grounds.
IV. CONCLUSION
For the reasons stated above, Plaintiff’s motion for summary judgment (Dkt.
14) is denied, and the Commissioner’s motion (Dkt. 19) is granted.

Date: March 20, 2015

By:

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______________________
Iain D. Johnston
United States Magistrate Judge