LOUDENBACK v. COLVIN

Filing 38

ENTRY ON JUDICIAL REVIEW: As set forth above, the ALJ in this case satisfied her obligation to articulate the reasons for her decision, and that decision is supported by substantial evidence in the record. Accordingly, the decision of the Commissioner is AFFIRMED ***SEE ENTRY FOR ADDITIONAL INFORMATION***. Signed by Judge William T. Lawrence on 8/7/2014.(DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
REBECCA LOUDENBACK,
Plaintiff,
vs.
CAROLYN W. COLVIN Acting
Commissioner of the Social Security
Administration,
Defendant.

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Cause No. 1:13-cv-902-WTL-TAB

ENTRY ON JUDICIAL REVIEW
Plaintiff Rebecca Loudenback requests judicial review of the final decision of the
Defendant denying her application for Disability Insurance Benefits (“DIB”) under Title II of the
Social Security Act (“the Act”). The Court rules as follows.
I.

PROCEDURAL HISTORY

Ms. Loudenback filed an application for DIB on April 29, 2010, alleging disability
beginning May 7, 2009, due to fibromyalgia, polyarthritis, osteoarthritis, sacroiliitis, cervicalgia,
scoliosis of the spine, irritable bowel syndrome, gerd, and migraine headaches. Her application
was initially denied on March 27, 2010, and again upon reconsideration on September 28, 2010.
She requested and was granted a hearing before an Administrative Law Judge (“ALJ”). A
hearing was held before ALJ Tammy H. Whitaker on November 1, 2011. Ms. Loudenback was
represented by Robert Edwards, a non-attorney representative.1 ALJ Whitaker issued her
decision denying Ms. Loudenback’s application on March 24, 2012. On April 3, 2013, the
Appeals Council upheld the ALJ’s decision and denied a request for review, thereby rendering
the ALJ’s decision the final decision of the Commissioner and subject to review by this Court.
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Ms. Loudenback is represented by an attorney on appeal.

II.

APPLICABLE STANDARD

Disability is defined as “the inability to engage in any substantial gainful activity by
reason of a medically determinable mental or physical impairment which can be expected to
result in death, or which has lasted or can be expected to last for a continuous period of at least
twelve months.” 42 U.S.C. § 423(d)(1)(A). In order to be found disabled, a claimant must
demonstrate that her physical or mental limitations prevent her from doing not only her previous
work, but any other kind of gainful employment which exists in the national economy,
considering her age, education, and work experience. 42 U.S.C. § 423(d)(2)(A).
In determining whether a claimant is disabled, the Commissioner employs a five-step
sequential analysis. At step one, if the claimant is engaged in substantial gainful activity, she is
not disabled, despite her medical condition and other factors. 20 C.F.R. § 404.1520(b). At step
two, if the claimant does not have a “severe” impairment (i.e., one that significantly limits her
ability to perform basic work activities), she is not disabled. 20 C.F.R. § 404.1520(c). At step
three, the Commissioner determines whether the claimant’s impairment or combination of
impairments meets or medically equals any impairment that appears in the Listing of
Impairments, 20 C.F.R. pt. 404, subpt. P, App. 1, and whether the impairment meets the twelvemonth duration requirement; if so, the claimant is deemed disabled. 20 C.F.R. § 404.1520(d). At
step four, if the claimant is able to perform her past relevant work, she is not disabled. 20 C.F.R.
§ 404.1520(f). At step five, if the claimant can perform any other work in the national economy,
she is not disabled. 20 C.F.R. § 404.1520(g).
In reviewing the ALJ’s decision, the ALJ’s findings of fact are conclusive and must be
upheld by this court “so long as substantial evidence supports them and no error of law
occurred.” Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). “Substantial evidence

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means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion,” id., and this court may not reweigh the evidence or substitute its judgment for that
of the ALJ. Binion v. Chater, 108 F.3d 780, 782 (7th Cir. 1997). The ALJ is required to articulate
only a minimal, but legitimate, justification for her acceptance or rejection of specific evidence
of disability. Scheck v. Barnhart, 357 F.3d 697, 700 (7th Cir. 2004). In order to be affirmed, the
ALJ must articulate her analysis of the evidence in her decision; while she “is not required to
address every piece of evidence or testimony,” she must “provide some glimpse into her
reasoning . . . [and] build an accurate and logical bridge from the evidence to her conclusion.”
Dixon, 270 F.3d at 1176.
III.

EVIDENCE OF RECORD

The evidence of record is aptly set forth in the parties’ briefs and need not be recited here.
Specific facts are set forth in the discussion section below where relevant.
IV.

THE ALJ’S DECISION

The ALJ determined at step one that Ms. Loudenback had not engaged in substantial
gainful activity since May 7, 2009, the alleged onset date. At step two, the ALJ concluded that
Ms. Loudenback had the following severe impairments:
fibromyalgia; arthralgias; polyarthritis; osteoarthritis of the knees, feet, and hands;
sacroilitis [sic]; cervacalgia; scoliosis; irritable bowel syndrome with abdominal
pain, bloating, gas pain, and constipation; migraine headaches and tension
headaches; right shoulder impingement; epicondilitis with joint pain and elbow
tendinitis; anxiety; depression; history of endometriosis with menorrhagia,
abdominal pain, cysts, and polyps; history of tremors; history of biliary colic and
abdominal pain; hypothyroidism; sphincter of oddi dysfunction; history of chronic
cholecystitis; history of gallbladder sludge; diffuse pain syndrome; arthralgias at
multiple sites; shingles; degenerative joint disease of the right hand; joint pain of
the fingers with tendronosis and osteoarthritis of the PIP joints; myofascial pain
syndrome; restless leg syndrome; history of cerebral spinal fluid pleocytosis,
inflammatory condition of uncertain etiology; numbness of the left arms, left
second toe, and foot; old fragmentation of right anterior tibial tuberosity;
generalized abdominal pain; and history of fatigue.
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R. at 16-17. At step three, the ALJ determined that Ms. Loudenback’s impairments, singly and
in combination, did not meet or medically equal a listed impairment.
At step four, the ALJ determined that Ms. Loudenback had the residual functional
capacity (“RFC”) to perform sedentary work with the following restrictions:
Sit 1 hour at a time; stand 45 minutes at a time; walk 30 minutes at a time; limited
to work allowing this person to sit or stand alternatively; never push or pull
hand/arm controls; never operate foot controls; never climb ladders, ropes,
scaffolds, or stairs; occasionally climb ramps; occasionally balance and stoop;
never crouch, kneel, or crawl; never reach overhead; occasionally finger, that is,
fine manipulation; avoid moderate exposure to extreme cold, extreme heat,
wetness, or humidity; avoid moderate exposure to irritants such as fumes, odors,
dusts, and gases; avoid all exposure to unprotected heights and dangerous
machinery; only occasional commercial driving; limited to work that allows 1
absence per month; limited to work that allows two unscheduled five minute
breaks twice per week in addition to regularly scheduled breaks; work limited to
simple, routine, and repetitive task in a work environment free of fast paces
production requirements; and work limited to only simple, work related decisions
with few, if any, work place changes.
Id. at 21-22. Given this RFC, the ALJ determined that Ms. Loudenback could not perform any
of her past relevant work. Finally, at step five, taking into account Ms. Loudenback’s age,
education, and work experience, the ALJ determined that she could perform jobs existing in
significant numbers in the national economy, including an election clerk, a call out operator, a
dowel inspector, and a surveillance systems monitor. Accordingly, the ALJ concluded that Ms.
Loudenback was not disabled as defined by the Act.
V.

DISCUSSION

Each of Ms. Loudenback’s arguments is addressed below.
A. Erroneous RFC
First, Ms. Loudenback argues that the ALJ failed to grant controlling weight to two
treating physicians’ opinions. A recent Seventh Circuit opinion described what is commonly
referred to as “the treating physician rule”:
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A treating physician’s opinion is entitled to controlling weight if it is supported by
medical findings and consistent with substantial evidence in the record. If this
opinion is well supported and there is no contradictory evidence, there is no basis
on which the administrative judge, who is not a physician, could refuse to accept
it. But once well-supported contradicting evidence is introduced, the treating
physician’s evidence is no longer entitled to controlling weight and becomes just
one more piece of evidence for the ALJ to consider.
Bates v. Colvin, 736 F.3d 1093, 1099-1100 (7th Cir. 2013) (internal quotation marks and
citations omitted).
On May 3, 2011, Ms. Loudenback’s neurologist, Dr. Caryn Vogel, completed a physical
capacities evaluation. She noted that Ms. Loudenback could sit for three hours a day and stand
or walk one hour a day; needed to alternate between sitting and standing throughout the day;
could use her hands to grasp, but not push or pull, do fine manipulation, or repetitive motion
tasks; could not use her feet for repetitive movements; could occasionally lift or carry up to five
pounds, but never more; was unable to climb, balance, stoop, kneel, crouch, crawl, or reach
above shoulder level; and needed moderate restrictions of activities involving unprotected
heights, moving machinery, exposure to marked changes in temperature and humidity,
automotive equipment, and exposure to dust, fumes, and gases. Dr. Vogel noted that Ms.
Loudenback had unexplained severe pain that was disabling to the extent that it would prevent
her from working full time at even a sedentary position. R. at 915-17.
Similarly, on July 2, 2010, Dr. Juanita Albright, Ms. Loudenback’s primary care
physician, opined that “[a]lthough she has gotten some relief, she has not reached the point
where she is able to be gainfully employed,” id. at 586. Further, on June 10, 2011, she reported
that “Ms. Loudenback has found it difficult to participate in a work place setting due to [her]
pain and the inability to have complete freedom to move as she needs to alleviate pain.” Id. at
923.

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Despite these opinions, when Dr. A. Dobson, State Agency physician, completed Ms.
Loudenback’s physical RFC assessment on July 27, 2010, he concluded that she could
occasionally lift twenty pounds; frequently lift ten pounds; stand and/or walk about six hours of
an eight hour workday; sit about six hours in an eight hour workday; frequently climb a ramp or
stairs; never climb a ladder, rope, or scaffold, frequently balance, stoop, and kneel; and
occasionally crouch or crawl. He noted that she had no manipulative limitations, and her only
environmental limitation was to avoid concentrated exposure to hazards such as machinery and
unprotected heights. Id. at 716-23. Dr. J. Sands, State Agency physician, affirmed this opinion
on September 28, 2010, noting that the medical evidence received did not indicate a significant
worsening of any medical conditions. Id. at 759.
Discussing the weight given to Dr. Vogel’s opinion, the ALJ noted as follows:
Certain aspects of the doctor’s opinion are in fact consistent with the residual
functional capacity determined in this decision. However, the evidence as a
whole does not support that the claimant would have such extreme limitations in
sitting and standing. This medical opinion was given some weight because it is
from an acceptable medical source, is from an examining physician with a
specialty in neurology, and is from a physician with an extensive treatment
history with the claimant. However, it was not given controlling weight because
certain aspects are generally inconsistent and not supported by the objective
medical evidence as a whole.
Id. at 29. Ms. Loudenback argues that the ALJ failed to identify how Dr. Vogel’s opinion was
“generally inconsistent and not supported by the objective evidence as a whole.”
The Court does not see any error in the ALJ’s conclusion that Dr. Vogel was not entitled
to controlling weight. As noted above, Dr. Dobson offered an opinion that contradicted Dr.
Vogel’s. Yet the ALJ still incorporated most of Dr. Vogel’s restrictions into her RFC
assessment, limiting Ms. Loudenback beyond Dr. Dobson’s RFC assessment and thereby
granting Dr. Vogel significant weight. Contrary to Ms. Loudenback’s assertions, the ALJ did not

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err by not identifying which aspects of Dr. Vogel’s opinion she found inconsistent with the
record or by not contacting Dr. Vogel for additional information. An ALJ “is not required to
address every piece of evidence or testimony, but must provide some glimpse into her
reasoning.” Dixon, 270 F.3d at 1176. “An ALJ need recontact medical sources only when the
evidence received is inadequate to determine whether the claimant is disabled.” Skarbek v.
Barnhart, 390 F.3d 500, 504 (7th Cir. 2004). For reasons discussed below, the Court is satisfied
that the ALJ relied on adequate evidence to make her determination and provided well beyond a
glimpse into her reasoning.
Ms. Loudenback also argues that the ALJ erred in dismissing Dr. Juanita Albright’s
opinion. In not granting controlling weight to Dr. Albright’s opinion, the ALJ noted that her
opinions are conclusory and/or provide very little explanation of the evidence
relied on in forming that opinion. The doctor’s own reports fail to reveal the type
of significant clinical and laboratory abnormalities one would expect if the
claimant were in fact disabled, and the doctor did not specifically address this
weakness. She apparently relied quite heavily on the subjective report of
symptoms and limitations provided by the claimant, and seemed uncritically to
accept as true most, if not all, of what the claimant reported. Yet, as explained
elsewhere in this decision, there exist good reasons for questioning the reliability
of the claimant’s subjective complaints given the objective evidence as a whole.
These opinions, therefore, [were] given little weight.
R. at 29. “[M]edical opinions upon which an ALJ should rely need to be based on objective
observations and not amount merely to a recitation of a claimant’s subjective complaints.” Rice
v. Barnhart, 384 F.3d 363, 371 (7th Cir. 2004). Dr. Albright’s assessments about Ms.
Loudenback’s capacity to work were not recorded in the medical evidence; they were made in
letters of support of Ms. Loudenback’s application for disability benefits. As the Commissioner
points out, Dr. Albright did not cite to any test results, examination findings, or other objective
evidence to support her statements, and as the Commissioner also points out, Ms. Loudenback

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did not identify any evidence supporting Dr. Albright’s conclusion. The ALJ thus did not err in
giving Dr. Albright’s opinions little weight.
The Court does not agree with Ms. Loudenback’s assertion that the ALJ did not identify
medical evidence from other treating or examining physicians that supported the ALJ’s decision
to not grant controlling weight to Drs. Vogel and Albright. The ALJ thoroughly analyzed the
medical record to explain her decision, and she specifically identified other doctors who treated
Ms. Loudenback as well as times when Ms. Loudenback’s complaints were only partially or not
supported by the record. The ALJ discussed at length Ms. Loudenback’s six visits with Dr.
Sarah Thomas throughout 2010. The ALJ noted Ms. Loudenback’s complaints at these visits,
which included joint swelling and pain, and Dr. Thomas’s diagnoses, which included
fibromyalgia, osteoarthritis, and arthralgia. The ALJ also noted that, other than the diagnoses,
the exams were mostly unremarkable and Ms. Loudenback demonstrated full range of motion of
tested joints without signs of tenderness or swelling.
The ALJ further noted that at a psychological consultative examination with Dr. Bryan
London, State Agency physician, on July 10, 2010, Ms. Loudenback alleged that she typically
used a cane for walking, but did not have a cane at this exam. The ALJ noted that the record did
not establish that a cane is medically necessary. R. at 24. The ALJ noted that at a consultative
examination with Dr. Hans Mouser, State Agency physician, on July 10, 2010, Ms. Loudenback
was able to get on and off the examination table without difficulties and demonstrated normal
gait and posture. She demonstrated a normal range of motion of her joints and portrayed normal
muscle strength, with normal grip strength and fine finger skills. Id. The ALJ noted that when
Dr. David Patterson evaluated Ms. Loudenback for occasional shortness of breath, wheezing, and
cough, he diagnosed chronic obstructive pulmonary disease with acute exacerbation, but thought

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it was likely due to her smoking, not to a chronic infection or an immune deficiency. The ALJ
further noted that when Dr. Albright saw Ms. Loudenback on December 14, 2010, her shortness
of breath had resolved. Id. at 25.
The ALJ also noted that at a January 6, 2011 visit, Ms. Loudenback reported great left toe
pain over the previous two weeks, but had not mentioned this pain to Dr. Thomas at a visit the
previous week. Id. The ALJ noted in particular Ms. Loudenback’s visit to Lisa Gillen, NP-C, on
June 8, 2011, due to complaints of diarrhea. The ALJ noted that Ms. Gillen recorded that
When I entered the room she was stretched out on the examination table, hands
behind her head, and smiling. Objectively she did not show signs of distress.
Subjectively she reports she is sick and either needs to go on disability [or] be
admitted into the hospital to diagnose her condition. . . . Her physical complaints
are somewhat disproportionate to the diagnostic findings.
Id. at 26. The ALJ noted that a CT scan showed no acute abnormalities of the abdomen or
pelvis, and the laboratory results were normal. The ALJ also noted that at a follow-up
appointment on June 21, 2011, Ms. Loudenback reported good benefits from her probiotic
medication. Because the ALJ relied on well-supported evidence that contradicted Dr. Vogel’s
and Dr. Albright’s opinions, she did not err in not granting them controlling weight, and she built
a logical bridge from the evidence to her conclusion.
Ms. Loudenback further argues that the ALJ failed to properly assess her claim under the
standards for fibromyalgia. The ALJ identified her fibromyalgia as a severe impairment but
found that it did not meet or medically equal any listing. The ALJ considered her fibromyalgia
when she evaluated the medical record. Ms. Loudenback fails to show how her fibromyalgia
limited her in ways that the ALJ did not already consider. The Court considers her argument
waived. See, e.g., United States v. Tockes, 530 F.3d 628, 633 (7th Cir. 2008) (“Unsupported and
undeveloped arguments . . . are considered waived.”).

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Finally, Ms. Loudenback argues that the ALJ erred when confronted with new medical
evidence, noting that new medical evidence was introduced following the last agency denial
upon reconsideration and between the hearing and the decision. Ms. Loudenback does not
provide citation for this new medical evidence. She merely states that it chronicled her ongoing
abdominal pain issues and gall bladder surgery, and that medical expertise was required to
determine the impact of her worsening pain. The ALJ did address this surgery, noting that it
suggested that the symptoms were genuine, but that fact was “offset by the fact that the record
reflects that the surgeries were generally successful in relieving the symptoms.” R. at 27. Ms.
Loudenback points to no evidence to show that her pain did, in fact, worsen. Because “[i]t is not
this court’s responsibility to research and construct the parties’ arguments,” Draper v. Martin,
664 F.3d 1110, 1114 (7th Cir. 2011), the Court considers this argument waived.
The Court is therefore satisfied that the ALJ properly relied on medical evidence in
deciding her RFC and built a logical bridge from the evidence to her conclusion.
B. Credibility Assessment
Ms. Loudenback next argues that the ALJ did not properly evaluate her credibility
because the ALJ misrepresented her unemployment insurance benefits and did not analyze her
pain.
In examining credibility determinations, the Court will not overturn the ALJ’s
conclusions “unless they were patently wrong.” Powers v. Apfel, 207 F.3d 431, 435 (7th Cir.
2000). However, “[t]he determination of credibility must contain specific reasons for the
credibility finding” and “must be supported by the evidence and must be specific enough to
enable the claimant and a reviewing body to understand the reasoning.” Craft v. Astrue, 539 F.3d
668, 678 (7th Cir. 2008) (citing Arnold v. Barnhart, 473 F.3d 816, 822 (7th Cir. 2007)). SSR 96-

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7p lists a number of factors that the ALJ must consider in determining the credibility of a
claimant. These include, among others, the individual’s daily activities; the location, duration,
frequency, and intensity of the individual’s pain or other symptoms; aggravating factors; and
medications, treatments, or other remedies that help alleviate the symptoms.
Ms. Loudenback is correct that her unemployment benefits were granted because she was
involuntarily unemployed due to a physical disability. R. at 339. The Court agrees that the ALJ
should have mentioned this fact when discussing her unemployment benefits. But it is well
known that, as the ALJ states, and contrary to Ms. Loudenback’s argument, individuals who
collect unemployment benefits must actively seek work, indicating that they are ready, willing,
and able to work. Ms. Loudenback provides no evidence that shows that because she was
collecting unemployment benefits due to a physical disability, she was exempt from this
requirement. Regardless, Ms. Loudenback testified that she spent one to two hours a week
looking for work, and the Court finds that the ALJ properly took this testimony into account
when considering Ms. Loudenback’s credibility.
Further, the Court finds that, even if the ALJ did err in considering Ms. Loudenback’s
unemployment benefits, the ALJ conducted a thorough and extensive review of the required
factors when assessing Ms. Loudenback’s credibility. Ms. Loudenback asserts that the ALJ
failed to consider the intensity of her pain, her long courses of treatment, and her medications.
The ALJ addressed these factors. The ALJ noted that Ms. Loudenback’s daily activities, and
especially her vacations in 2010 and 2011 to Key West, Grand Caymen, Jamaica, the Bahamas,
and Puerto Rico, suggested that her alleged symptoms and limitations have, at times, been
overstated. The ALJ noted that Ms. Loudenback has taken appropriate medications, but the
dosage levels suggested that her symptoms were not particularly serious. The ALJ devoted an

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entire paragraph to discuss how she accounted for medication side effects such as fatigue and
concentration difficulties, noting in particular that Ms. Loudenback takes her pain medication
about every four hours, which eases her pain for two to three hours. The ALJ also noted that she
considered Ms. Loudenback’s course of treatment other than her medications but that treatment
did not require additional modification to the RFC. Finally, the ALJ discussed at length how her
RFC assessment accounted for precipitating and aggravating factors.
Accordingly, the ALJ built a logical bridge between the evidence and her conclusion, and
the Court is satisfied with the reasoning behind her credibility determination.
C. The ALJ’s Step Five Determination
Finally, Ms. Loudenback argues that the ALJ erred at Step Five because she gave an
incomplete hypothetical to the vocational expert (“VE”) at the hearing. Specifically, she argues
that the ALJ gave incomplete hypothetical questions that did not include complete limitations or
instruction on issues of concentration, persistence, and pace due to her pain; side effects of
medication; or issues of handling and fingering. “[T]he ALJ must question the vocational expert
regarding every impairment set forth in the claimant’s record to the extent that the impairment is
supported by the medical evidence.” Jens v. Barnhart, 347 F.3d 209, 213 (7th Cir. 2003).
The ALJ adequately accounted for Ms. Loudenback’s impairments. In her hypothetical,
the ALJ listed all of Ms. Loudenback’s credible limitations. The ALJ accounted for the issues of
handling and fingering by limiting her RFC to “occasionally finger, that is, fine manipulation.”
Regarding the medication side effects, the ALJ noted as follows:
I have accounted for medication side effects such as fatigue and concentration
difficulties by limiting the claimant to simple, routine, and repetitive tasks in a
work environment free of fast paced production requirements; by limiting the
claimant to work that allows one absence per month; by limiting the claimant to
work that allows two unscheduled five minute breaks per workweek; by limiting

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the claimant to only occasional commercial driving; and by limiting the claimant
to work that avoids all exposure to unprotected heights and dangerous machinery.
R. at 28.
Ms. Loudenback concedes that the ALJ did limit her RFC based on concentration,
persistence, or pace, because the RFC limited her to simple, routine, and repetitive tasks in a
work environment free of fast paces production requirements, and to only simple, work related
decisions with few, if any, work pace changes. She then faults the ALJ for not referring directly
to limitations of concentration, persistence, and pace in the hypothetical. See O’Connor-Spinner
v. Astrue, 627 F.3d 614, 620-21 (7th Cir. 2010) (“[F]or most cases, the ALJ should refer
expressly to limitations on concentration, persistence and pace in the hypothetical in order to
focus the VE’s attention on these limitations and assure reviewing courts that the VE’s testimony
constitutes substantial evidence of the jobs a claimant can do.”) (emphasis added). The problem
with Ms. Loudenback’s argument is that the ALJ found that Ms. Loudenback had moderate
difficulties with concentration, persistence, and pace in evaluating whether she met the
requirements of paragraph B at Step Three. See SSR 96-8p (“The adjudicator must remember
that the limitations identified in the “paragraph B” and “paragraph C” criteria are not an RFC
assessment but are used to rate the severity of mental impairment(s) at steps 2 and 3 of the
sequential evaluation process.”). This is distinguishable from O’Conner-Spinner, in which “[t]he
state examiner’s RFC determination explicitly noted that there were at least moderate limitations
here, and the ALJ agreed with that determination.” O’Connor-Spinner, 627 F.3d at 620.
In contrast, all of the following were marked “Not Significantly Limited” in Ms.
Loudenback’s July 2010 mental RFC assessment:
•
•

the ability to remember locations and work-like procedures;
the ability to understand and remember very short and simple instructions;

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•
•
•
•

the ability to carry out very short and simple instructions; the ability to perform activities
within a schedule, maintain regular attendance, and be punctual within customary
tolerances;
the ability to sustain an ordinary routine without special supervision;
the ability to work in coordination with or proximity to others without being distracted
by them;
the ability to make simple work-related decisions; the ability to complete a normal
workday and workweek without interruptions from psychologically based symptoms and
to perform at a consistent pace without an unreasonable number and length or rest
periods;

The only “Moderately Limited” marks Ms. Loudenback received were in her abilities to
understand and remember detailed instructions, and maintain attention and concentration for
extended periods. R. at 613-14. The RFC the ALJ crafted accounts for these limitations in that
Ms. Loudenback is limited to simple, routine, and repetitive tasks that do not require her
independent judgment, in an environment free of fast paced production, where she can take two
unscheduled five-minute breaks twice per week in addition to regularly scheduled breaks and
have one absence per month. Ms. Loudenback, misreading the RFC, objects that a break every
two hours, is no more than a normal work routine and is incompatible with the mental RFC
assessment. She fails to note that the five-minute breaks are in addition to regularly scheduled
breaks, and that the State Agency doctor who completed the mental RFC assessment also noted
that she had the capacity to function in a work setting. Id. at 615. In looking at the ALJ’s RFC
and the hypothetical given to the VE, it is clear that she accounted for all of Ms. Loudenback’s
limitations in concentration, persistence, and pace, and that her hypothetical was consistent with
her RFC finding.
Ms. Loudenback also asserts that the jobs the VE offered were not responsive to the
ALJ’s hypothetical. She claims that (1) election clerk was the only job offered in a large
quantity, but that an election clerk is not full time work; (2) 223 call out operators and 445 dowel
inspectors do not represent a significant number of jobs; (3) the Dictionary of Occupational
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Titles is obsolete; and (4) the surveillance system monitor is a Homeland Security position that
requires a license and training. In support of her argument, she relies only on McClesky v.
Astrue, in which McClesky’s lawyer submitted a letter stating that all security guards and
surveillance system monitors require a license from the Department of Homeland Security and
training to qualify for the license. The Seventh Circuit questioned the accuracy of this statement
and reproached the ALJ for failing to determine whether it was. 606 F. 3d 351, 353 (7th Cir.
2010) (noting that “[t]his is implausible.”). The Court finds this argument speculative and
unsupported, and considers it waived. See, e.g., Tockes, 530 F.3d at 633 (“Unsupported and
undeveloped arguments . . . are considered waived.”).
Accordingly, the Court finds no error with the ALJ’s Step Five determination.
VI.

CONCLUSION

As set forth above, the ALJ in this case satisfied her obligation to articulate the reasons
for her decision, and that decision is supported by substantial evidence in the record.
Accordingly, the decision of the Commissioner is AFFIRMED.
SO ORDERED: 08/07/2014
_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

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