IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MARIA ARROYO,

Plaintiff,

v.

CAROLYN W. COLVIN,

acting commissioner of Social 

Security,1

Defendant.

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No. 12 C 4072

Magistrate Judge

Maria Valdez

MEMORANDUM OPINION AND ORDER

Plaintiff Maria Arroyo (“Plaintiff”) filed this action pursuant to 42 U.S.C. § 

405(g), seeking review of the final decision of the Commissioner of Social Security 

(“the Commissioner”), which denied her claim for Social Security Disability 

Insurance (“SSDI”) benefits. The parties have consented to the jurisdiction of the 

United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the following 

reasons, the Court denies Plaintiff’s Motion for Summary Judgment [Doc. No. 23] 

and grants the Commissioner’s Cross-Motion for Summary Judgment [Doc. No. 26]. 

1 Carolyn W. Colvin is substituted for her predecessor, Michael J. Astrue, pursuant to 

Federal Rule of Civil Procedure 25(d).

 
BACKGROUND

I. PROCEDURAL AND FACTUAL HISTORY

Plaintiff suffered from two strokes in 2000 and claims that she is functionally 

limited due to the residual effects of those strokes. Despite those limitations, 

however, Plaintiff was able to continue working as a factory assembly worker until 

2009, when she was laid off. Plaintiff then filed an application for SSDI benefits on 

August 26, 2009, alleging a disability onset date of February 5, 2009. Her

application was denied initially and upon reconsideration. Accordingly, she 

requested and received a hearing before an Administrative Law Judge (“ALJ”), who

found that Plaintiff was not disabled at Step Four of the Social Security 

Administration’s sequential analysis.

At the hearing, the ALJ found that Plaintiff suffered from the following 

severe impairments: post-stroke and left-lower-extremity weakness; obesity; mild 

degenerative disease in the left knee; mild degenerative disease in the lumbar 

spine; and a need for blood coagulation therapy. (R. 22.) After determining that 

Plaintiff did not meet any listed impairment, the ALJ calculated Plaintiff’s Residual 

Functional Capacity (“RFC”) and found that Plaintiff could perform light sedentary 

work. Specifically, the ALJ found that Plaintiff can stand and walk no more than 

two hours in an eight-hour day, lift and carry no more than ten pounds occasionally 

and five pounds frequently, and perform postural movements such as stooping, 

crouching, and kneeling no more than occasionally. (R. 23.) In addition, the ALJ 

determined that Plaintiff cannot work with knives or in other situations where 

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being cut is likely (due to her blood clotting issues) and that she is unable to 

maintain the attention or concentration necessary to perform complex tasks (due to 

her alleged pain).

The ALJ then consulted with a Vocational Expert (“VE”) to determine if 

Plaintiff could perform her past relevant work or any jobs in the national economy. 

On the basis of his RFC assessment and the VE’s testimony, the ALJ concluded that 

Plaintiff is able to perform her past relevant work as a factory assembly worker, 

and, furthermore, that she can work other jobs that exist in significant numbers in 

the national economy. (R. 28.) Accordingly, the ALJ determined that Plaintiff is not 

disabled under the Social Security Act.

STANDARD OF REVIEW

I. ALJ LEGAL STANDARD

Under the Social Security Act, a person is disabled if she is unable “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 twelve months.” 42 

U.S.C. § 423(d)(1)(a). In order to determine whether a claimant is disabled, the ALJ 

conducts a five-step analysis and considers the following in order: (1) Is the 

claimant presently unemployed? (2) Does the claimant have a severe impairment? 

(3) Does the impairment meet or medically equal one of a list of specific 

impairments enumerated in the regulations? (4) Is the claimant unable to perform 

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her former occupation? and (5) Is the claimant unable to perform any other work? 

20 C.F.R. § 416.920(a)(4). 

An affirmative answer at either step 3 or step 5 leads to a finding that the 

claimant is disabled. Young v. Sec’y of Health & Human Servs., 957 F.2d 386, 389 

(7th Cir. 1992). A negative answer at any step, other than at step 3, precludes a 

finding of disability. Id. The claimant bears the burden of proof at steps 1–4. Id. 

Once the claimant shows an inability to perform past work, the burden then shifts 

to the Commissioner to show the claimant’s ability to engage in other work existing 

in significant numbers in the national economy. Id. 

II. JUDICIAL REVIEW

Judicial review of the ALJ’s decision is limited to determining whether the 

ALJ’s findings are supported by substantial evidence or based upon legal error. 

Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000); Stevenson v. Chater, 105 F.3d 

1151, 1153 (7th Cir. 1997). Substantial evidence is “such relevant evidence as a 

reasonable mind might accept as adequate to support a conclusion.” Richardson v. 

Perales, 402 U.S. 389, 401 (1971); Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 

2007). Under this standard, the ALJ is not required to address “every piece of 

evidence or testimony in the record, [but] the ALJ’s analysis must provide some 

glimpse into the reasoning behind her decision to deny benefits.” Zurawski v. 

Halter, 245 F.3d 881, 889 (7th Cir. 2001). Rather, the ALJ must simply “build an 

accurate and logical bridge from the evidence to his conclusion,” Clifford, 227 F.3d 

at 872, and minimally articulate the “analysis of the evidence with enough detail 

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and clarity to permit meaningful appellate review.” Briscoe ex rel. Taylor v. 

Barnhart, 425 F.3d 345, 351 (7th Cir. 2005). 

On appeal, a court may not substitute its judgment for that of the 

Commissioner by reevaluating facts, reweighing evidence, resolving conflicts in 

evidence, or deciding questions of credibility. Skinner, 478 F.3d at 841. Thus, where 

conflicting evidence would allow reasonable minds to differ, the court must defer to 

the decision of the Commissioner. See Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir. 

1990). 

DISCUSSION

On appeal, Plaintiff argues that the ALJ’s decision is neither supported by 

substantial evidence nor based upon proper legal standards, asserting: (1) the ALJ 

disregarded medical evidence that supports a lower RFC determination; (2) the ALJ 

improperly discounted the opinion of Plaintiff’s treating physicians; (3) the ALJ 

improperly determined that Plaintiff’s claims of pain were not credible; (4) the 

hearing was deficient because there was not a consultative examiner present; (5) 

the VE used a flawed hypothetical that failed to account for Plaintiff’s impairments; 

and (6) the VE failed to establish the existence of other jobs in the national economy 

that Plaintiff could perform. The Court addresses each issue in turn.2

2 The Court notes that Plaintiff generally fails to cite to the record in support of her 

arguments. Moreover, Plaintiff’s briefs lack a clearly defined structure and scope with 

respect to the issues on appeal. Nonetheless, the Court will construe and support Plaintiff’s 

claims to best possible extent, consistent with the record and the law.

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A. The ALJ’s Step Four Determinations

1. The ALJ Did Not Disregard Substantial Medical Evidence

Plaintiff first argues that the ALJ disregarded medical signs and evidence 

that indicate she is further functionally limited than the ALJ found her to be. In 

particular, Plaintiff claims that the ALJ did not evaluate the opinions of four 

physicians: Dr. Procento (Plaintiff’s primary physician); Dr. Castle (a neurologist); 

Dr. Saikh (a physical therapist); and Dr. Cavanaugh (a rehabilitation specialist) —

all of whom allegedly noticed that Plaintiff suffered from a limp and foot drop and 

that she required a cane and leg brace to walk. Thus, according to Plaintiff, the ALJ 

ignored medical evidence of Plaintiff’s limp, foot drop, and need for a cane and leg 

brace, which resulted in a flawed RFC determination. (Id. at 8-9.)

The Court finds no support for Plaintiff’s argument in the record. The ALJ 

was clearly aware that Plaintiff needed a cane and leg brace. (See, e.g., R. 25-26.) 

Moreover, in arriving at his RFC determination, the ALJ explicitly considered Dr. 

Procento’s observation that Plaintiff suffers from “weakness in her left foot while 

walking and a limp in her gait,” as well as Dr. Castle’s observation that “her gait 

was notable for foot drag . . . and a limp that appeared to affect her posture.” (R. 24.) 

Therefore, Plaintiff’s contention that the ALJ disregarded this evidence is simply 

untrue.

Plaintiff next asserts that the ALJ erred by failing to develop the basis of Dr. 

Castle’s conclusion, contained in one of his reports, that Plaintiff is likely disabled. 

The Court finds this argument similarly baseless. Although it is well-established 

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that the ALJ is required to “develop a ‘full and fair’ record before determining a 

claimant is not disabled,” this obligation is not limitless, and courts generally 

“respect[] the ALJ’s ‘reasoned judgment’ on ‘how much evidence to gather.’” Thomas 

v. Colvin, 745 F.3d 802, 807 (7th Cir. 2014). After reviewing Dr. Castle’s report, the 

Court finds no error in the ALJ’s development of the record.

Nothing in the record indicates that Dr. Castle is familiar with Social 

Security disability law. Moreover, Dr. Castle only spent thirty-three minutes with 

Plaintiff before making his report, and the report contains no explanation of what 

jobs Plaintiff could or could not perform as a result of her disability. (See R. 343.) 

Thus, Dr. Castle’s opinion regarding Plaintiff’s disability status is deserving of little 

weight, much less a thorough factual investigation into its bases. Furthermore, the 

report does not contain, and Plaintiff has not pointed to, any observations of 

Plaintiff’s impairments that were not accounted for in the ALJ’s opinion. (Compare 

R. 23-27, with R. 342-43). Therefore, even if the ALJ failed to develop the record in 

this regard, which he did not, that error would have been harmless.

2. The ALJ Properly Discounted the Opinions of Plaintiff’s Treating 

Physicians

Plaintiff next argues that the ALJ erred by declining to give controlling 

weight to Plaintiff’s treating physicians, in violation of 20 C.F.R. § 404.1527. Section 

404.1527 requires the ALJ to give controlling weight to a treating physician’s 

opinion if it is both “well-supported” and “not inconsistent with the other 

substantial evidence” in the record. 20 C.F.R. § 404.1527. Section 404.1527 further 

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provides that if the ALJ does not give the treating physician’s opinion controlling 

weight, then he must weigh that opinion in light of the following factors:

1) the length of the treatment relationship and frequency of 

examination

2) the nature and extent of the treatment relationship

3) the amount/qualify of evidence support the physician’s opinion

4) the consistency of the physician’s opinion with the record as a whole

5) the physician’s expertise in area on which she opines

6) other factors brought to the Commissioner’s attention

20 C.F.R. § 404.1527(c)(1)-(6); accord Campbell, 627 F.3d at 308. 

In that respect, Plaintiff claims that the ALJ committed reversible error by 

(1) failing to consider the above factors and (2) failing to explain his reasons for 

discrediting Plaintiff’s physicians according to those factors. Plaintiff is mistaken.

The ALJ’s opinion clearly shows that the ALJ considered the above factors. (See R. 

at 26-27.) Thus, Plaintiffs first argument fails. Concerning Plaintiff’s second 

argument, while the ALJ was required to consider the above factors, he was not 

required to write a factor-by-factor analysis in his opinion. Rather, the ALJ was 

only required to “minimally articulate” his reasons for discounting plaintiff’s 

physicians. See Elder v. Astrue, 529 F.3d 408, 415 (7th Cir. 2008). Accordingly, 

Plaintiff’s argument fails in this respect as well. 

Here, the ALJ indeed “minimally articulated” his reasons for discrediting 

Plaintiff’s treating physicians. Although Plaintiff does not specify which of her 

treating physicians the ALJ (allegedly) improperly discredited, the Court will 

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nonetheless assess the sufficiency of the ALJ’s reasoning with respect to Dr. 

Procento, Dr. Castle, Dr. Saikh, and Dr. Cavanaugh.3

(a) Dr. Procento’s opinion

Dr. Procento has been Plaintiff’s physician since 2003. In 2010, he completed 

a Stroke Residual Functional Capacity Questionnaire in 2010, in which he noted 

that Plaintiff suffered from the following symptoms: weakness, slight paralysis, 

unstable walking, numbness, tingling, pain, and fatigue. (R. 576-81.) Dr. Procento

further opined that Plaintiff’s pain and fatigue were great enough to interfere 

constantly with her attention and concentration, and that she would likely be 

absent more than four days per month due to her impairments and treatment 

needs. (Id.)

In his opinion, the ALJ discussed Dr. Procento’s findings and explained that 

they were not entitled to controlling weight because: (1) Dr. Procento provided little 

explanation for his conclusions in his reports; (2) his opinion is inconsistent with 

other evidence in the record; (3) the 2010 report was prepared after only six visits 

with Plaintiff; and (4) the 2010 report did not assess Plaintiff’s limitations in 

standing, walking, sitting, carrying, upper extremity use, postural activities,

restrictions in her work environment, or her need for breaks and leg elevation. (R. 

3 In her reply brief, Plaintiff also argues that the ALJ erred by ignoring the opinion of 

Plaintiff’s consultative examiner, Dr. Weiss. According to Plaintiff, the ALJ should have 

considered Dr. Weiss’s opinion as expert opinion evidence, pursuant to SSR 96-6p. 

However, contrary to Plaintiff’s assertions, Dr. Weiss found Plaintiff to be less restricted 

than the ALJ did. (See R. 441-48.) The ALJ disagreed and explained that “the record as a 

whole supports more restrictions on the claimant’s functional limitations [than Dr. Weiss 

reported].” (R. 27-28.) Thus, Plaintiff’s argument is both self-defeating and unsupported by 

the record.

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27.) These are precisely the sort of “minimal articulations” contemplated by the 

Seventh Circuit, and, therefore, the Court affirms the ALJ’s decision in this regard. 

See Elder, 529 F.3d at 415.

(b) Dr. Castle’s Opinion

Dr. Castle diagnosed Plaintiff with minimal degenerative joint disease, a 

limp, postural issues, and chronic pain. (R. 342-47.) In his report, Dr. Castle further 

stated:

I also think that the patient . . . is fairly certain that she will not be 

able to work because of this limp and I think that is not unreasonable. 

I told her that if physical therapy felt that she needed a cane, and an 

AFO brace, that she likely could not work. It seems as if, even given 

the limp itself and some of this history of falls that she has, that she 

probably would be a good candidate for disability at this point.

(R. 342-43.) In discounting Dr. Castle’s opinion, the ALJ explained that

“[a]lthough Dr. Castle is a neurologist, he rendered his opinion after only two visits 

with the claimant.” (R. 27.) The ALJ then explained that Dr. Castle’s conclusion 

regarding Plaintiff’s disability is entitled to little weight because Dr. Castle is 

unfamiliar with disability law. (Id.) Again, these are sufficient “minimal 

articulations” to justify discrediting Dr. Castle’s opinion, and the Court therefore 

affirms that decision. See Elder, 529 F.3d at 415; see also Dixon v. Massanari, 270 

F.3d 1171, 1177 (7th Cir. 2001) (“[A] claimant is not entitled to disability benefits 

simply because her physician states that she is ‘disabled’ . . . . The Commissioner, 

not a doctor selected by a patient . . . decides whether a claimant is disabled.”); 20 

C.F.R. § 404.1527(d) (medical source opinions concerning disability are “not medical 

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opinions . . . but are, instead, opinions on issues reserved to the [judgment of] 

Commissioner.”).

(c) Dr. Saikh’s Opinion

Dr. Saikh diagnosed Plaintiff with impaired lower extremity sensation, 

lumbar pain, an externally rotated right leg, lateral left knee pain, and left knee 

babinski and crepitance, and observed that Plaintiff’s lower left extremity would 

spasm when standing. (R. 363.) He also recommended that Plaintiff begin physical 

therapy, increase her fluid intake, take a multivitamin regularly, and take Tylenol 

for her pain. (Id.)

In his opinion, while the ALJ did explicate Dr. Saikh’s findings, (see R. 25), he 

did not provide any basis for discounting Dr. Saikh’s opinion. However, contrary to 

Plaintiff’s insistence, this was not an error on the ALJ’s part — Dr. Saikh simply 

did not opine on Plaintiff’s functional capacity. Rather, Dr. Saikh merely observed 

essentially the same symptoms as Plaintiff’s other doctors and recommended 

further testing and treatment. Thus, Dr. Saikh essentially presented no “opinion” 

for the ALJ to discount, and therefore the Court finds no error in the ALJ’s lack of 

discussion regarding the weight given to Dr. Saikh’s opinion. 

(d) Dr. Cavanaugh’s Opinion

Lastly, although Plaintiff correctly notes that the ALJ did not discuss Dr. 

Cavanaugh’s opinion whatsoever, this is because Plaintiff saw Dr. Cavanaugh one 

month after the ALJ issued his decision. (See R. 30, 593.) Thus, it strains credulity 

to hold that the ALJ erred by failing to address Dr. Cavanaugh’s opinion. 

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Nonetheless, the Court will construe Plaintiff’s argument to mean that this case 

should be remanded pursuant to sentence six of 42 U.S.C. § 405(g) for consideration 

of Dr. Cavanaugh’s report. 

To merit a “sentence six” remand, a claimant must show that “there is new 

evidence which is material and that there is good cause for failure to incorporate 

such evidence into the record in a prior proceeding.” Jens v. Barnhart, 347 F.3d 209, 

214 (7th Cir. 2003). Evidence is “material” if there is a “reasonable probability that 

the Commissioner would have reached a different conclusion had the evidence been 

considered.” Perkins v. Chater, 107 F.3d 1290, 1296 (7th Cir. 1997). The Court finds 

it unlikely that the ALJ or the Commissioner would have reached a different 

decision had they been aware of Dr. Cavanaugh’s report.

Dr. Cavanaugh diagnosed Plaintiff with slight weakness in her left upper 

extremity, lower left side weakness, mild degenerative joint disease, arthritic pain,4

a left foot drop, a limp, and noted that without a brace, Plaintiff’s left knee 

hyperextends when standing. (R. 593-94.) All of these conditions were accounted for 

in the ALJ’s opinion. (See R. 26-27.) Accordingly, as Dr. Cavanaugh’s report does 

not contain any new material evidence, the Court declines to remand this case on 

the basis that the report should be part of the record. 

3. The ALJ Properly Discredited Plaintiff’s Subjective Reports of Pain

4 Plaintiff mistakenly claims in her brief that Dr. Cavanaugh diagnosed plaintiff with “rigid 

ankle/foot arthrosis” and found that it caused “her to fall . . . when her left leg buckled 

getting out of the shower.” (Pl.’s Reply Br. at 4.) Although Dr. Cavanaugh’s report indicates 

that Plaintiff’s pain is arthritic in nature, it does not attribute a causal relationship to 

Plaintiff’s arthritis, nor does it attempt to explain her alleged susceptibility to falling. (See

R. 592-96.)

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Next, Plaintiff takes issue with the ALJ’s credibility determination regarding 

her claims of disabling pain and functional limitations. To overturn an ALJ’s 

credibility determination, a plaintiff must show that it was “patently wrong” and

“lack[ing] in any explanation or support.” Jones v. Astrue, 623 F.3d 1155, 1162 (7th 

Cir. 2010). This is a very deferential standard, particularly because “a reviewing

court lacks direct access to the witnesses, lacks the trier of fact's immersion in the

case as a whole, and lacks the specialized tribunal's experience with the type of case

under review.” Carradine v. Barnhart, 360 F.3d 751, 753 (7th Cir. 2004).

Here, Plaintiff argues (without citing to the record) that the medical evidence

in this case shows that she suffers from various anatomical and physiological

abnormalities, and therefore the ALJ’s skepticism of her pain was unreasonable.

The Court disagrees. While an ALJ may not disregard a claimant’s subjective

complaints of pain simply because it is inconsistent with other evidence,

Sienkiewicz v. Barnhart, 409 F.3d 798, 804 (7th Cir. 2005), that is not the case here.

The ALJ did not dispute that Plaintiff suffered pain and discomfort as a result of

her stroke; rather, he simply did not believe that it limited her functioning to the

extent she claimed.

To support his findings, the ALJ highlighted numerous inconsistencies

between Plaintiff’s alleged pain/limitations, her daily activities, and the record.

First, the ALJ noted that although Plaintiff claims that she has been functionally 

limited since her stroke in 2000, she did not stop working until her company laid 

her off in February 2009. (R. 26, 41.) The ALJ thus found Plaintiff’s claims of 

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disabling pain less credible, since she worked for nine years after her stroke and 

only stopped working because of circumstance, rather than because of her disability.

This is a permissible negative inference. See Lott v. Astrue, No. 11 CV 5632, 2012 

U.S. Dist. LEXIS 170003, at *27-28 (N.D. Ill. Nov. 30, 2012) (affirming ALJ’s 

decision to discredit the plaintiff’s complaints of pain where the plaintiff alleged a 

disability onset date that coincided with his being laid off).

In addition, the ALJ explained that “Plaintiff’s treatment has been rather 

conservative” compared to her alleged disabling pain. (R. 27.) Plaintiff maintains 

that this is untrue, and that given her persistent efforts to seek treatment, the ALJ 

should have found her to be more credible, pursuant to SSR 96-7p. Plaintiff is 

mistaken. The record reveals nothing special about Plaintiff’s course of treatment: 

she was not taking strong pain medication, she was not a candidate for surgery, 

and, most importantly, she did not diligently pursue treatment. (R. 27.) Thus, 

although SSR 96-7p suggests that a claimant’s efforts in seeking treatment should 

boost her credibility, the record does not show that Plaintiff made such efforts. To 

the contrary, the record shows that Plaintiff stopped going to physical therapy after 

only two sessions, that she missed a number of doctors’ appointments, and that she 

often declined to follow treatment prescriptions, such as pain medication, wearing a 

brace, using a cane, or light exercise. (See R. 24, 26-27; 50-52; 332-347; 563-80.) 

Although Plaintiff makes much of the numerous physicians she has seen, the 

number of physicians a claimant sees, by itself, is not probative of whether the 

claimant has diligently pursued treatment.

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Of course, the Court is mindful that an ALJ must explore a claimant’s 

reasons for not seeking or pursuing treatment before drawing a negative inference, 

Shauger v. Astrue, 675 F.3d 675, 696 (2012), which the ALJ did not do in his 

opinion. However, the ALJ explored this issue at the hearing, and Plaintiff

explained that she stopped pursuing treatment because she felt it was not working.5

(See R. 50-52.) That the ALJ failed to articulate this in his opinion is hardly an 

error worthy of remand, especially considering that Plaintiff unilaterally concluded

her treatment was not working without actually following the treatment plans 

prescribed by her physicians. The Court therefore finds no error in this regard. See 

McKinzey v. Astrue, 641 F.3d 884, 893-94 (explaining that minor articulation errors 

are insufficient to warrant remand so long as the ALJ’s opinion is ultimately

supported with valid reasons); Smith v. Astrue, No. 09-CV-2392, 2010 WL 3526655, 

at *15 (N.D. Ill. Sept. 1, 2010) (holding that a claimant’s “sporadic treatment” was 

sufficient to justify an adverse credibility finding).

Lastly, the ALJ discredited Plaintiff’s allegations of pain because he found

that they were inconsistent with her daily activities, such as grocery shopping,

driving to church, and housework. (R. 27.) Plaintiff argues that this was improper

because household chores do not equate to competitive employment. While the

Court agrees with Plaintiff on the distinction between daily activities and the

workplace, Plaintiff mischaracterizes the issue. The ALJ did not equate Plaintiff’s

ability to do housework with her ability to work. Rather, the ALJ considered how

5 Plaintiff also claimed at the hearing that she stopped treatment because her doctors told 

her that it would be futile, but the Court finds no support for this claim in the record. 

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Plaintiff’s daily activities reflect on her allegations of disabling pain and concluded

that they were inconsistent. Ultimately, Plaintiff merely invites the Court to

reweigh the evidence and come to a different conclusion than the ALJ, which the

Court cannot do. See Ketelboeter v. Astrue, 550 F.3d 620, 624 (7th Cir. 2008).

Therefore, as Plaintiff has not demonstrated that the ALJ’s credibility

determination was “patently wrong,” the Court affirms that determination.

4. A Consultative Examiner was not Required at the ALJ Hearing

Plaintiff next argues that this case should be remanded because the ALJ 

should have had a medical consultant at the hearing to comment on the findings of 

the consultative examiner and the VE, pursuant to SSR 96-6p. Plaintiff is mistaken.

Nothing in SSR-96-6p requires that a medical expert testify at an ALJ hearing, and 

therefore Plaintiff’s argument fails.

5. The VE’s Hypothetical

The VE found that a person with Plaintiff’s work history and RFC could 

perform her past relevant work as a factory assembly worker at the sedentary level, 

at both an unskilled and semi-skilled level. (R. 28.) Without citing to any medical 

record, Plaintiff argues that the VE’s hypothetical failed to account for the findings 

of Plaintiff’s treating physicians, which indicate that Plaintiff is more functionally 

limited than the ALJ found her to be. In addition, Plaintiff points to an apparent 

inconsistency in the VE’s hypothetical: whereas the Dictionary of Occupational 

Titles (“DOT”) provides that sedentary work requires no more than two hours of 

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standing in a work day, the VE’s hypothetical was based on standing for one third of 

the day. 

Plaintiff’s first argument is merely another attempt at challenging the weight 

given to Plaintiff’s treating physicians. The Court has already considered and 

rejected this argument. Concerning Plaintiff’s second argument, while it is true that 

the VE initially framed his hypothetical to include standing for one third of the day, 

the ALJ caught that mistake and asked the VE to reformulate the hypothetical to 

account for only two hours of standing in a day, (R. 68), which is consistent with the 

DOT’s definition of sedentary work. Thus, the VE’s error was harmless. See 

McKinzey, 641 F.3d at 892.

B. The ALJ’s Step Five Determination

Lastly, Plaintiff challenges the VE’s assertion that, in addition to her past 

relevant work, Plaintiff is fit to work other jobs that exist in substantial numbers 

throughout the national economy. The Court finds this argument moot because the 

ALJ determined that Plaintiff is not disabled at Step Four, and the Court has found 

no error in that determination. Accordingly, the Court declines to address Plaintiff’s 

contentions in this respect.

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CONCLUSION

For the reasons set forth above, the Court denies Plaintiff’s Motion for 

Summary Judgment [Doc. No. 23] and grants the Commissioner’s Cross-Motion for 

Summary Judgment [Doc. No. 26]. 

SO ORDERED. ENTERED:

 

DATE: November 20, 2014 ___________________________

HON. MARIA VALDEZ

United States Magistrate Judge

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