Reyes v. Commissioner of Social Security
MEMORANDUM AND ORDER, The Commissioner's final decision denying Lisa Reyes' application for social security disability benefits is AFFIRMED. The Clerk of Court is directed to enter judgment in favor of defendant. Signed by Judge J. Phil Gilbert on 8/10/2017. (jdh)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LISA A. REYES,
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Case No. 16-cv-1008-JPG-CJP
MEMORANDUM and ORDER
In accordance with 42 U.S.C. § 405(g), plaintiff Lisa A. Reyes, represented by counsel,
seeks judicial review of the final agency decision denying her application for Disability
Insurance Benefits (DIB) and Supplemental Security Income (SSI) pursuant to 42 U.S.C. § 423.
Plaintiff filed for DIB and SSI on July 29, 2013, alleging a disability onset date of
February 27, 2012.
Her claim was initially denied on January 2, 2014, and again upon
reconsideration on June 12, 2014.
On December 11, 2014, plaintiff filed a concurrent
application for SSI, which was consolidated with her pending claims. Administrative Law Judge
(ALJ) Kim S. Nagle conducted an evidentiary hearing on February 12, 2015, at which plaintiff
orally amended her onset date to February 28, 2012. ALJ Nagle issued an unfavorable decision
on March 5, 2015. (Tr. 29-47.) The Appeals Council denied review and the decision of the ALJ
became the final agency decision. (Tr. 1.) Administrative remedies have been exhausted, and a
timely complaint was filed in this Court.
Nancy A. Berryhill is now the Acting Commissioner of Social Security. See https://www.ssa.gov/agency/
commissioner.html (visited Feb. 7, 2017). She is automatically substituted as defendant in this case. See Fed. R.
Civ. P. 25(d); 42 U.S.C. § 405(g).
Issues Raised by Plaintiff
Plaintiff raises the following points:
1. The ALJ’s assessment of her residual functional capacity (“RFC”) was legally
insufficient because it was expressed in terms of the ability to do work at the light
exertional level and the ALJ did not determine plaintiff’s RFC on a function-by-function
2. The ALJ erred by failing to consider the functional effects of plaintiff’s sleep disorder.
Applicable Legal Standards
To qualify for DIB, a claimant must be disabled within the meaning of the applicable
statutes.2 For these purposes, “disabled” means the “inability 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 12 months.” 42 U.S.C. § 423(d)(1)(A).
A “physical or mental impairment” is an impairment resulting from anatomical,
physiological, or psychological abnormalities which are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques.
42 U.S.C. § 423(d)(3).
activity” is work activity that involves doing significant physical or mental activities and that is
done for pay or profit. 20 C.F.R. § 404.1572.
Social Security regulations set forth a sequential five-step inquiry to determine whether a
claimant is disabled. The Seventh Circuit Court of Appeals has explained this process as
The statutes and regulations pertaining to DIB are found at 42 U.S.C. § 423, et seq., and 20 C.F.R. pt. 404. The
statutes and regulations pertaining to SSI are found at 42 U.S.C. §§ 1382 and 1382c, et seq., and 20 C.F.R. pt. 416.
As is relevant to this case, the DIB and SSI statutes are identical. Furthermore, 20 C.F.R. § 416.925 detailing
medical considerations relevant to an SSI claim, relies on 20 C.F.R. Pt. 404, Subpt. P, the DIB regulations. Most
citations herein are to the DIB regulations out of convenience.
The first step considers whether the applicant is engaging in substantial gainful
activity. The second step evaluates whether an alleged physical or mental
impairment is severe, medically determinable, and meets a durational
requirement. The third step compares the impairment to a list of impairments that
are considered conclusively disabling. If the impairment meets or equals one of
the listed impairments, then the applicant is considered disabled; if the
impairment does not meet or equal a listed impairment, then the evaluation
continues. The fourth step assesses an applicant’s residual functional capacity
(“RFC”) and ability to engage in past relevant work. If an applicant can engage in
past relevant work, he is not disabled. The fifth step assesses the applicant’s
RFC, as well as his age, education, and work experience to determine whether the
applicant can engage in other work. If the applicant can engage in other work, he
is not disabled.
Craft v. Astrue, 539 F.3d 668, 674 (7th Cir. 2008); accord Weatherbee v. Astrue, 649 F.3d 565,
568-69 (7th Cir. 2011).
Stated another way, it must be determined:
(1) whether the claimant is presently
unemployed; (2) whether the claimant has an impairment or combination of impairments that is
serious; (3) whether the impairments meet or equal one of the listed impairments acknowledged
to be conclusively disabling; (4) whether the claimant can perform past relevant work; and (5)
whether the claimant is capable of performing any work within the economy, given his or her
age, education and work experience. 20 C.F.R. § 404.1520; Simila v. Astrue, 573 F.3d 503, 51213 (7th Cir. 2009); Schroeter v. Sullivan, 977 F.2d 391, 393 (7th Cir. 1992).
If the answer at steps one and two is “yes,” the claimant will automatically be found
disabled if he or she suffers from a listed impairment, determined at step three. If the claimant
does not have a listed impairment at step three, and cannot perform his or her past work (step
four), the burden shifts to the Commissioner at step five to show that the claimant can perform
some other job. Rhoderick v. Heckler, 737 F.2d 714, 715 (7th Cir. 1984); see also Zurawski v.
Halter, 245 F.3d 881, 886 (7th Cir. 2001) (Under the five-step evaluation, an “affirmative
answer leads either to the next step, or, on Steps 3 and 5, to a finding that the claimant is
disabled. . . . If a claimant reaches step 5, the burden shifts to the ALJ to establish that the
claimant is capable of performing work in the national economy.”).
This Court reviews the Commissioner’s decision to ensure that the decision is supported
by substantial evidence and that no mistakes of law were made. It is important to recognize that
the scope of review is limited. “The findings of the Commissioner of Social Security as to any
fact, if supported by substantial evidence, shall be conclusive . . . .” 42 U.S.C. § 405(g). Thus,
this Court must determine not whether plaintiff was, in fact, disabled at the relevant time, but
whether the ALJ’s findings were supported by substantial evidence and whether any errors of
law were made. See Books v. Chater, 91 F.3d 972, 977-78 (7th Cir. 1996) (citing Diaz v. Chater,
55 F.3d 300, 306 (7th Cir. 1995)). This Court uses the Supreme Court’s definition of substantial
evidence, i.e., “such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971).
In reviewing for “substantial evidence,” the entire administrative record is taken into
consideration, but this Court does not reweigh evidence, resolve conflicts, decide questions of
credibility, or substitute its own judgment for that of the ALJ. Brewer v. Chater, 103 F.3d 1384,
1390 (7th Cir. 1997); Moore v. Colvin, 743 F.3d 1118, 1121 (7th Cir. 2014). However, while
judicial review is deferential, it is not abject; this Court does not act as a rubber stamp for the
Commissioner. See Parker v. Astrue, 597 F.3d 920, 921 (7th Cir. 2010), and cases cited therein.
The Decision of the ALJ
ALJ Nagle found that plaintiff met the insured status requirements through December 31,
2014, and that plaintiff had not been engaged in substantial gainful activity since February 28,
2012. The ALJ then opined that plaintiff had severe impairments of degenerative disc disease,
chronic obstructive pulmonary disease (“COPD”), and obstructive sleep apnea. The ALJ also
determined that plaintiff had the RFC to perform light work, with the exception that plaintiff
could only occasionally climb ladders, ropes, and scaffolds, and frequently crawl or climb ramps
or stairs. Plaintiff was also limited to frequent exposure to extreme cold, heat, or pulmonary
irritants such as fumes, odors, dust and gases. After finding that plaintiff could perform past
relevant work as a sorter/pricer, security guard, registration clerk, or hand packager, ALJ Nagle
determined that plaintiff was not disabled. (Tr. 29-47.)
The Evidentiary Record
The Court has reviewed and considered the entire evidentiary record in formulating this
Memorandum and Order. The following summary of the record is directed to the points raised
1. Agency Forms
In her initial disability, work, and function reports, plaintiff indicated that her highest
level of education was the seventh grade and that she attended special education classes. She
also completed specialized job training as a security guard. (Tr. 211.)
Plaintiff took Prozac for depression; ProAir, Albuterol, and Advair for COPD; Trazadone
for insomnia and depression; and Prazosin for anxiety, post-traumatic stress disorder (“PTSD”),
and panic attacks.
(Tr. 213.) She also took Ibuprofen, Ventolin HFA, Nortriptyline, and
Ciprofloxacin. (Tr. 237.) Plaintiff alleged that COPD, insomnia, depression, PTSD, panic
attacks, anxiety, and severe lumbar pain limited her ability to work. (Tr. 224.) She could not sit,
stand, walk, or lay down for more than ten minutes and needed approximately ten naps per day.
Plaintiff had difficulty breathing and experienced constant back pain. She did not like
crowds or being around other people. She had anxiety attacks. Plaintiff slept about three to four
hours each night and had nightmares. She could not stand long to cook and did light housework
such as sweeping and laundry. (Tr. 230-33.)
Plaintiff’s condition limited her to lifting five pounds; squatting, kneeling, and bending
for “not long;” standing for twenty minutes; reaching “not far;” and walking, at most, a half
block. Her memory was “real bad.” Plaintiff could pay attention for one hour and could not
follow written or spoken instructions well. She did not handle stress or changes in routine well.
She got along with authority figures “ok.” (Tr. 235-36.)
Plaintiff was previously employed as a pricer at Salvation Army, as a security guard, as
an application “intaker” at Energy Association, as a line worker at a factory, and as a
housekeeper at a nursing home and motel. (Tr. 239.)
As a pricer, plaintiff frequently lifted twenty-five pounds; stood; walked; sat; stooped;
crouched; handled, grabbed, or grasped big objects; and wrote, typed, or handled small objects.
She lifted objects out of big boxes and walked half of the warehouse during the entire eight-hour
workday. She priced items that came in and sorted things. Plaintiff lifted objects, walked and
stood a lot, and stooped into big boxes. (Tr. 240.)
As a security guard, plaintiff frequently lifted less than ten pounds; reached; walked,
stood; wrote, typed, or handled small objects; and supervised other people. Plaintiff stated she
did a lot of walking and paper work and counted cars. She also indicated she used technical
knowledge or skills. (Tr. 241-42.)
As an application “intaker,” plaintiff frequently lifted less than ten pounds; walked; sat;
and wrote, typed, or handled small objects. She indicated she completed a lot of hand written
applications. (Tr. 243.)
As a line worker, plaintiff packed Capri Sun and stacked heavy boxes. There was a lot of
lifting and walking. Plaintiff frequently lifted ten pounds; walked; stood; stooped; kneeled;
crouched; crawled; handled, grabbed, or grasped big objects; and reached.
She also used
machines, tools or equipment and used technical knowledge or skills. (Tr. 244.)
As a housekeeper, plaintiff walked; stood; climbed; stooped; kneeled; crouched; reached;
and wrote, typed, or handled small objects. She frequently lifted less than ten pounds. Her
duties included cleaning rooms by sweeping, mopping, wiping things off, cleaning toilets and
sinks, and vacuuming. She also had to lift mop buckets throughout the day and carry a vacuum
cleaner. (Tr. 245.)
In subsequent reports, plaintiff stated her mobility and range of motion were very limited
due to severe pain and discomfort. (Tr. 249.) Virtually every aspect of her day and everything
she did was more difficult because of her conditions. (Tr. 252.)
2. Evidentiary Hearing
ALJ Nagle conducted an evidentiary hearing on February 12, 2015.
Plaintiff was represented by counsel.
Plaintiff testified that she was fifty years old at the time of the hearing. (Tr. 59.) Plaintiff
did not have any dependents but did take care of her grandchildren – ages eleven and six – once
per month. Plaintiff completed the seventh grade and unsuccessfully attempted to earn her GED.
Plaintiff most recently worked at Salvation Army in 2009 but quit because of her COPD.
She could not breathe due to the dust, heat, and cold. Her carpal tunnel also made it difficult to
handle objects. (Tr. 62.) Plaintiff also worked part time in 2001 and 2002 for Madison County
where she assisted individuals with their energy bills during the winter. She worked in an office
and dealt with the public. Plaintiff also worked for about one month at a factory. (Tr. 63-64.)
She was a full time housekeeper as well, during which she lifted, at most, twenty-five pounds.
On an average day plaintiff made coffee, watched the news, and attempted to do light
housekeeping. She made microwave meals for herself and was able to take care of her grooming
and personal hygiene. She watched television programs and read. She did not like dealing with
the public and did not go outside much. She went to the store once per month. Plaintiff slept a
lot throughout the course of the day because she did not sleep at night. She had a driver’s license
but did not have a car. (Tr. 66-68.)
Plaintiff explained that her depression and anxiety prevented her from working. Beginning
three to four years before, plaintiff could not go to a store without feeling as if she was going to
pass out. Plaintiff got along with her coworkers at her previous job. (Tr. 69.)
Plaintiff was taking Nortriptyline and Citalopram for depression and anxiety, Trazadone
for problems with sleeping, Zantac for GERD,3 albuterol and Symbicort for COPD, and
paroxetine and ibuprofen 800 milligrams. (Tr. 70-77.)
Plaintiff experienced shortness of breath, which limited her ability to climb stairs, clean,
bend, and walk. Dust, cold, and heat irritated her COPD. She also had numbness in her hands,
which began three years prior and was a result of carpal tunnel. She wore a hand brace to help.
Plaintiff also had numbness in her legs from a pinched nerve, which began two years prior. (Tr.
Bending, sitting, and standing for too long exacerbated plaintiff’s back pain. She could
sit, stand, and walk for no longer than a half hour each. She could lift up to about ten pounds.
GERD (gastroesophageal reflux disease) “is a chronic digestive disease.” GERD, MAYO CLINIC,
(Tr. 82-84.) Throughout the course of an eight-hour workday, plaintiff could sit for a collective
two to three hours. She could stand for a total of two hours, at most, but she had good days and
bad days. On a bad day she could not get out of bed. On a good day she could sweep a floor and
stand at the sink to wash dishes without sitting down. She had approximately two good days per
week. (Tr. 88-89.)
Plaintiff could perform household chores for approximately fifteen minutes to a half hour
before she needed to sit down. She also dropped things because she could not feel them due to
her carpal tunnel. Her carpal tunnel also limited her ability to pick up small objects like a screw
or paperclip. She had difficulty with grip strength because of pain in her wrist. (Tr. 85-86.)
Plaintiff stated she had sleep apnea, which prevented her from sleeping at night, although
she was “never really diagnosed” with it. She underwent two studies, during which she was
awake every half hour. She slept off and on throughout the day and usually took about four or
five naps that lasted fifteen to twenty minutes each. Plaintiff also had shoulder problems, which
may have originated from a car accident. (Tr. 87-88.)
Plaintiff believed that her conditions would cause her to miss work. When she was
previously employed, she had to miss ten to twelve days per month for doctor appointments and
her inability to cope. Plaintiff had suicidal thoughts. (Tr. 90.)
Plaintiff avoided her roommates because she did not want to deal with other people.
When she was forced to interact with others she got jittery and nervous. She also became tearful
multiple times per day. (Tr. 91.)
Plaintiff opined that her conditions would impact her ability to keep up with a production
flow or work pace. She could concentrate on a television show for a half hour. (Tr. 91-93.)
Suman Srinivasan, a vocational expert (VE), then testified that plaintiff’s previous job at
Goodwill4 (a sorter/pricer) was considered light, skilled, SVP 5, and medium as performed; her
position as a security guard was light, semi-skilled, SVP 3, and light as performed; her job as a
registration clerk was sedentary, semi-skilled, SVP 3, and sedentary as performed; and her jobs
as a hand packager were light and medium, unskilled, and SVP 2. (Tr. 93-97.)
The ALJ then posed several questions to the VE involving a hypothetical individual with
plaintiff’s age, education, and work history. The individual had light exertional ability and could
only occasionally climb ladders, ropes, and scaffolds; no more than frequently climb ramp and
stairs and crawl; and could no more than frequently be exposed to extreme temperatures of cold
and heat or pulmonary irritants such as fumes, odors, dust, and gases. The VE opined that such a
person could perform plaintiff’s past work as a security guard, hand packager when done at the
light level, sorter/pricer, and registration clerk. (Tr. 98.)
For the next hypothetical, the ALJ asked the VE to consider an individual who had the
same limitations as the first hypothetical individual, but was also limited to frequent
manipulation and feeling in the upper extremities, including bilateral fingering and feeling. The
VE opined that such an individual could perform plaintiff’s past work as a sorter and pricer,
registration clerk, and security guard. (Tr. 99.)
The ALJ also asked the VE to consider a hypothetical individual with the cumulative
limitations of the first two hypothetical individuals, who also was limited to work that required
no more than simple, routine changes, and no more than occasional interaction with the public.
This person could still be around other people. The VE opined that these additional restrictions
would preclude the performance of plaintiff’s past work. However, jobs existed in the state and
national economy that such a person could perform. (Tr. 99-100.)
The VE testified as to plaintiff’s previous employment at “Goodwill.” The Court believes the VE meant to testify
to plaintiff’s work at Salvation Army.
For the fourth hypothetical, the VE was asked to consider a person with the same
limitations who would also have to alternate between sitting and standing at will at her work
station, but was not off task more than ten percent of the work period. The VE opined that jobs
existed in the state and national economy that this individual could perform. (Tr. 100.)
The ALJ then asked the VE to consider a person with the same limitations who, due to
pain and anxiety, would require intermittent and unpredictable breaks resulting in being off task
at least twenty percent of the work period.
Such limitations would be preclusive of all
employment. (Tr. 100-01.)
The VE testified that a person who could only sit for three hours total in an eight-hour
workday would be unable to maintain fulltime employment. (Tr. 101-02.)
The limitations to simple, routine changes in work settings would preclude an
individual’s ability to carry out detailed, written, or oral instructions and limit the person to
unskilled work. (Tr. 103.)
An employer would tolerate an employee being off task no more than ten percent of the
time on a continuing basis. No more than one unscheduled absence per month, on a continuing
basis, is permitted. All unskilled work by definition is simple, repetitive, and routine. (Tr. 104).
3. Medical Records
Plaintiff received treatment from Mr. Edward Anderson, P.A. at Southern Illinois
Healthcare Foundation from 2003 through 2014. She presented with a variety of conditions,
including back pain, shoulder pain, hyperlipidemia, GERD, COPD, insomnia, sleep apnea,
depression, and anxiety. On June 14, 2012, plaintiff complained of low back and shoulder pain.
She flipped her truck two weeks before but the record indicates her back pain was chronic. Mr.
Anderson prescribed baclofen for muscle spasms, ibuprofen 800, and prednisone. (Tr. 302.) On
July 9, 2013, plaintiff reported severe low back pain. Mr. Anderson ordered an MRI of her
lumbar spine but the record does not establish that plaintiff pursued one. (Tr. 300-01.)
On July 31, 2014, plaintiff presented to the Gateway Regional Medical Center with low
back pain, which she rated at an eight out of ten. A review of radiographs dated October 12,
2011, revealed no fracture or listhesis of the lumbar spine. Mild degenerative disc disease and
lower lumbar facet anthropathy were present.
The oblique films did not demonstrate
A physical examination demonstrated tender bilateral paraspinal areas and
vertebral tenderness that was not appreciated. There were no skin changes. Plaintiff’s range of
motion in all extremities was intact. She was diagnosed with bilateral paralumbar muscle
spasms, administered a Toradol injection, and prescribed Norco. (Tr. 591-96.)
On August 4, 2014, plaintiff presented to Mr. Anderson with complaints of “some back
pain.” Mr. Anderson prescribed Flexeril. He further advised plaintiff to apply heat and sports
cream to her back and wear a back brace. (Tr. 599.)
On November 13, 2014, plaintiff received an MRI of her lumbar spine, which revealed
no fracture or listhesis. Lower lumbar spondylosis and facet arthropathy with significant neural
foraminal stenosis bilaterally at L4-L5 and L5-S1 were noted. Additionally, there was probable
impingement of the right S1 nerve root in the lateral recess at the L5-S1 level. No high-grade
central canal stenosis in the lumbar spine was shown. (Tr. 355.)
4. Dr. Harry Deppe’s Psychological Examination
On December 5, 2013, Dr. Deppe conducted a psychological examination of plaintiff.
(Tr. 324-27.) Plaintiff stated that she experienced back pain but was not receiving treatment for
it at that time. She described her sleep as “fair.” (Tr. 325.)
Dr. Deppe opined that plaintiff’s ability to relate to others, her ability to understand and
follow simple instructions, and her ability to maintain attention required to perform simple,
repetitive tasks was intact. Further, her ability to withstand stress and pressures associated with
day-to-day work activity was “good.” Plaintiff’s general prognosis was “good.” (Tr. 326.) Her
diagnoses included adjustment disorder with mixed emotional features, back pain, and COPD.
5. Dr. Vital Chapa’s Physical Examination
On December 5, 2013, Dr. Chapa conducted a physical exam of plaintiff. (Tr. 329-31.)
Plaintiff reported back pain that prevented her from standing and washing dishes. She had back
pain when she walked and had to lean on the cart when she shopped. Sitting in a truck also
caused her pain and she could not stand for long periods. The pain had been present for about
three to four years, and she rated it at an eight out of ten. She also reported insomnia. (Tr. 329.)
Dr. Chapa noted that her motor examination revealed no specific motor weakness or
muscle atrophy; her knee and ankle reflexes were symmetric, as were her triceps and biceps
reflexes; an examination of the musculoskeletal system revealed no evidence of joint redness,
heat, swelling, or thickening; there was no evidence of paravertebral muscle spasm; plaintiff was
able to perform both fine and gross manipulations with both hands and her hand grip was five
out of five bilaterally.
Plaintiff was able to appreciate pinprick sensations to both lower
extremities; her lumbosacral spine flexion was normal; her straight leg-raising test was negative
bilaterally; she had full range of motion of the joints; her cerebellar function was grossly intact;
and there was no evidence of lumbar radiculopathy. Plaintiff was able to ambulate and bear
weight without any aids and her gait was normal. Her lungs were clear to auscultation with no
wheezing, cyanosis, or clubbing. (Tr. 330-31.)
6. State-Agency Consultant Records Reviews
On December 27, 2013, Dr. Jhaveri conducted a records review of plaintiff’s file and
found that plaintiff’s conditions were non-severe. (Tr. 108-14.) Dr. Hinchen conducted a
records review of plaintiff’s file on June 10, 2014, and affirmed Dr. Jhaveri’s conclusions. (Tr.
On December 13, 2013, Dr. Terry Travis completed a mental RFC assessment of
plaintiff. He found that any of plaintiff’s impairments related to a mental disorder were nonsevere. (Tr. 111-14.)
On June 9, 2014, Dr. Russell Taylor conducted a mental RFC assessment of plaintiff. He
found that plaintiff was moderately limited in her ability to maintain attention and concentration
for extended periods; ability to perform activities within a schedule, maintain regular attendance,
and be punctual within customary tolerances; and ability to respond appropriately to changes in
the work setting. (Tr. 122-23.)
Plaintiff’s first argument is that the ALJ’s assessment of her RFC was insufficient
because it was expressed in terms of the ability to do work at the light exertional level, rather
than on a function-by-function basis.
Plaintiff cites Nolen v. Sullivan, 939 F.2d 516, 518 (7th Cir. 1991), which held that an
ALJ “must list the specific physical requirements of the previous job and assess, in light of the
available evidence, the claimant’s ability to perform these tasks.” The Seventh Circuit Court of
Appeals has narrowly construed Nolen and held it inapplicable where the ALJ considers the
claimant’s specific job and there is evidence in the record of the duties of those jobs. Cohen v.
Astrue, 258 F. App’x 20, 28 (7th Cir. 2007). Moreover, “[a]lthough the RFC assessment is a
function-by-function assessment, the expression of a claimant’s RFC need not be articulated
function-by-function; a narrative discussion of a claimant’s symptoms and medical source
opinions is sufficient[.]” Knox v. Astrue, 327 F. App’x 652, 657 (7th Cir. 2009).
Here, ALJ Nagle provided a lengthy narrative discussion of plaintiff’s symptoms,
plaintiff’s testimony, the medical records, and the consultative examinations.
Additionally, ALJ Nagle stated that she utilized plaintiff’s work history and testimony, along
with the testimony of the VE, to establish that plaintiff could perform past relevant work. (Tr.
43.) See Metzger v. Astrue, 263 F. App’x 529, 533 (7th Cir. 2008) (finding that an ALJ may rely
on VE testimony to determine a claimant can perform previous work). Plaintiff asserts that the
VE’s testimony was not based upon consideration of plaintiff’s functional limitations because the
ALJ did not conduct a function-by-function assessment when posing the hypotheticals.
However, the VE testified that he listened to plaintiff’s testimony and reviewed the record, which
sufficiently developed plaintiff’s job duties. (Tr. 93-94.) Therefore, the ALJ’s conclusion that
plaintiff could perform light work was not erroneously generic in light of the evidence in the
Plaintiff, however, asserts that the ALJ failed to build a logical bridge between her
“partial crediting of the 2014 MRI result that Plaintiff had significant stenosis of the lumbar
spine with probable nerve root impingement” and her conclusion that plaintiff was restricted to
light work. (Doc. 17, p. 15.) Notably, plaintiff does not identify any evidence that the ALJ
overlooked or that otherwise contradicted her finding that plaintiff was limited to light work due
to back issues.
Actually, plaintiff makes no substantive challenge to the RFC assessment at all. Instead,
plaintiff argues that “light exertion describes several optional and potentially conflicting
capacities.” (Doc. 17, p. 13.) This is incorrect; “the full range of light work requires standing or
walking, off and on, for a total of approximately 6 hours of an 8-hour workday. Sitting may
occur intermittently during the remaining time.” SSR 83-10, 1983 WL 31251, *6 (Jan. 1, 1983).
ALJ Nagle found that plaintiff could meet these requirements and, in the absence of any
substantive challenge, any technical flaw in the expression of the RFC assessment is harmless.
Plaintiff cites two non-authoritative cases from the Southern District of Indiana and the
Eastern District of Wisconsin.
In McCollum v. Astrue, No. 07-CV-1016-JPS, 2012 WL 4760722 (E.D. Wisc. Oct. 5,
2012), the ALJ found that plaintiff had severe impairments of flat feet, calluses, and early
degenerative arthritis of the knee but did not explain how they affected the claimant’s ability to
sit, stand, and walk. Here, ALJ Nagle provided a complete discussion of the medical evidence
related to plaintiff’s back condition and concluded that, based on the treatment and physical
examination, plaintiff could meet the requirements of light work.
Lawson v. Colvin, No. 1:14-cv-01851-JMS-MJD, 2015 WL 5334374 (S.D. Ind. Sept. 14,
2015), is also distinguishable. There, the ALJ failed to address how the claimant could perform
light work requiring him to walk or stand for up to six hours, given evidence that the claimant’s
treadmill stress test had to be terminated after approximately five minutes. As noted above,
plaintiff here points to no evidence contradicting the ALJ’s finding of light work restrictions.
Plaintiff next asserts that the ALJ erred by not considering the functional effects of
plaintiff’s sleep apnea beyond step three. However, the ALJ did, in fact, address plaintiff’s
sleeping issues. The ALJ noted plaintiff’s contention that she was disabled due to numerous
symptoms, including excessive daytime sleeping and lack of consistent nighttime sleep. (Tr. 38.)
The ALJ explained, however, that the record did not yield objective findings that corroborated
the plaintiff’s characterization of her symptoms. In specifically addressing plaintiff’s sleeping
problems, the ALJ stated, “Although she has been diagnosed with COPD and obstructive sleep
apnea, the degree of these impairments is mild, as she displayed no active symptoms, such as
wheezing, at her consultative physical examinations with Dr. Chapa, who noted that her lungs
were clear. (Tr. 39.) The ALJ also found plaintiff not credible due to her gaps in medical
treatment and inconsistent statements. (Tr. 40.) In sum, the ALJ built a logical bridge between
her finding that plaintiff had a severe impairment of sleep apnea and a finding of non-disability.
The Commissioner’s final decision denying Lisa Reyes’ application for social security
disability benefits is AFFIRMED.
The Clerk of Court is directed to enter judgment in favor of defendant.
IT IS SO ORDERED.
DATE: August 10, 2017
s/ J. Phil Gilbert
J. PHIL GILBERT
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