1

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

WESTERN DIVISION

John J., )

)

Plaintiff, )

) Case No. 20 CV 50118

v. )

) Magistrate Judge Lisa A. Jensen

Kilolo Kijakazi,

1 )

Commissioner of Social Security, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff John J. brings this action under 42 U.S.C. § 405(g) seeking reversal or a remand 

of the decision denying him disability insurance benefits. The parties have consented to the 

jurisdiction of a United States Magistrate Judge for all proceedings pursuant to 28 U.S.C. § 636(c). 

For the reasons set forth below, Plaintiff’s motion for summary judgment is denied, the 

Commissioner’s motion is granted, and the ALJ’s decision is affirmed. 

I. Background

Plaintiff filed for disability insurance benefits in June 2016 and supplemental security 

income in July 2016, alleging disability beginning on May 3, 2016. He alleged disability due to 

deep vein thrombosis (“DVT”), pulmonary embolism, cardiac issues, diabetes and neuropathy. He 

appeared and testified at a hearing before an Administrative Law Judge (“ALJ”) on August 4, 

2017. The ALJ also heard testimony from a vocational expert (“VE”). The ALJ denied his 

disability claim. Plaintiff appealed the ALJ’s decision, and the parties jointly agreed to a remand 

of the case. On October 28, 2019, Plaintiff appeared and testified before the same ALJ for a remand 

1 Kilolo Kijakazi has been substituted for Andrew Marshall Saul. Fed. R. Civ. P. 25(d).

Case: 3:20-cv-50118 Document #: 29 Filed: 09/01/21 Page 1 of 22 PageID #:2348
2

hearing. The ALJ also heard testimony from an independent medical expert Dr. Steven Goldstein 

as well as hearing from a new VE. On December 2, 2019, the ALJ issued an opinion denying 

Plaintiff’s claims. 

The ALJ found that Plaintiff had the following severe impairments: osteoarthritis of the 

hands bilaterally; degenerative joint disease of the ankles bilaterally and left big toe with bunions;

peripheral arterial disease/chronic venous insufficiency; history of pulmonary embolism and DVT; 

degenerative disc disease, cervical and lumbar spine; mild carpal tunnel syndrome/neuropathy;

mild neuropathy of the right ankle; left rotator cuff tendinopathy with impingement; and obesity. 

The ALJ went on to find that Plaintiff could engage in light work with additional postural 

modifications and found that he requires a sit-stand option which allows for sitting or standing at 

the workstation but changing positions no more than twice an hour so that he is not off task more 

than 10% of the workday. Plaintiff appealed the ALJ’s order to this Court in April 2020.

II. Standard of Review

A reviewing court may enter judgment “affirming, modifying, or reversing the decision of 

the [Commissioner], with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). If 

supported by substantial evidence, the Commissioner’s factual findings are conclusive. Id. 

Substantial evidence exists if there is enough evidence that would allow a reasonable mind to 

determine that the decision’s conclusion is supportable. Richardson v. Perales, 402 U.S. 389, 399-

401 (1971). Accordingly, the reviewing court cannot displace the decision by reconsidering facts 

or evidence, or by making independent credibility determinations. Elder v. Astrue, 529 F.3d 408, 

413 (7th Cir. 2008).

However, the Seventh Circuit has emphasized that review is not merely a rubber stamp. 

Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir. 2002) (a “mere scintilla” is not substantial evidence). 

Case: 3:20-cv-50118 Document #: 29 Filed: 09/01/21 Page 2 of 22 PageID #:2349
3

A reviewing court must conduct a critical review of the evidence before affirming the 

Commissioner’s decision. Eichstadt v. Astrue, 534 F.3d 663, 665 (7th Cir. 2008). Even when 

adequate record evidence exists to support the Commissioner’s decision, the decision will not be 

affirmed if the Commissioner does not build an accurate and logical bridge from the evidence to 

the conclusion. Berger v. Astrue, 516 F.3d 539, 544 (7th Cir. 2008). Moreover, federal courts 

cannot build a logical bridge on behalf of the ALJ. See Mason v. Colvin, No. 13 C 2993, 2014 WL 

5475480, at *5 (N.D. Ill. Oct. 29, 2014).

III. Discussion

Plaintiff argues that the ALJ erred by: (1) failing to appropriately evaluate Plaintiff’s 

subjective symptoms; (2) inappropriately relying on VE testimony from the first hearing rather 

than testimony offered by the VE in a subsequent hearing; and (3) improperly evaluating the 

opinion evidence. The Court will address each in turn.

A. Subjective Symptoms 

Plaintiff argues that the ALJ erred in her evaluation of his subjective symptoms. Pl.’s Br. 

at 12, Dkt. 20. Throughout his brief, but especially with respect to the subjective symptom 

evaluation argument, Plaintiff takes a “kitchen sink approach to briefing [that] cause[s] distraction 

and confusion, [and] also consumes space that should be devoted to developing the arguments with 

some promise.” Howard v. Gramley, 225 F.3d 784, 791 (7th Cir. 2000). Based on his 1-2 sentence 

arguments, the Court will attempt to distill Plaintiff’s points and address them accordingly.

When assessing a claimant’s subjective symptom allegations, an ALJ must consider several 

factors, including the objective medical evidence, the claimant’s daily activities, her level of pain 

or symptoms, aggravating factors, medication, course of treatment, and functional limitations. 20 

C.F.R. § 404.1529(c); Soc. Sec. Ruling 16-3p Titles II & Xvi: Evaluation of Symptoms in Disability 

Case: 3:20-cv-50118 Document #: 29 Filed: 09/01/21 Page 3 of 22 PageID #:2350
4

Claims, SSR 16-3P (S.S.A. Oct. 25, 2017). An ALJ must justify her evaluation of a plaintiff’s 

subjective allegations with “specific reasons supported by the record.” Pepper v. Colvin, 712 F.3d 

351, 367 (7th Cir. 2013). However, because an ALJ is in the best position to determine a witness’s 

truthfulness, an ALJ’s assessment of a plaintiff’s subjective symptom allegations is given special 

deference and will be overturned only if it is patently wrong. See Morrison v. Saul, 806 F. App'x 

469, 474 (7th Cir. 2020) (citing Shideler v. Astrue, 688 F.3d 306, 310-11 (7th Cir. 2012)); Summers 

v. Berryhill, 864 F.3d 523, 528 (7th Cir. 2017). An ALJ’s assessment is patently wrong if the 

decision lacks any explanation or support. Cullinan v. Berryhill, 878 F.3d 598, 603 (7th Cir. 2017) 

(citing Murphy v. Colvin, 759 F.3d 811, 816 (7th Cir. 2014)). Not all of the ALJ’s reasons must be 

valid in a subjective symptom analysis, “as long as enough of them are.” Halsell v. Astrue, 357 F. 

App’x 717, 722 (7th Cir. 2009) (emphasis in original).

The ALJ lists a number of reasons in support of her subjective symptoms evaluation 

including that: Plaintiff took no pain medications and was treated conservatively; records generally 

do not reflect ambulation difficulties; his diabetes was well-controlled; he routinely denied calf 

pain and shortness of breath, while at other times his shortness of breath was noted to be mild; he 

consistently declined physical therapy recommendations; he frequently reported being able to do 

daily activities without limitations; treating physician Dr. Plescia declined to sign off on Plaintiff 

receiving a handicap placard; Plaintiff generally did not have edema in his lower extremities; he 

was often advised to start/continue a regular exercise program; he was often in no acute distress 

on examination and was talkative or making jokes at appointments; on multiple occasions he was 

noncompliant with his medications; his treatment has not generally changed; he has not had 

surgery, nor has it been recommended, other than for his toe; his doctors continually advised him 

to move more, rather than less; and he provided numerous excuses for declining treatment 

Case: 3:20-cv-50118 Document #: 29 Filed: 09/01/21 Page 4 of 22 PageID #:2351
5

recommendations. R. 1034, 1040-41. Plaintiff does not contest all of the bases used by the ALJ to 

support the symptoms evaluation; in fact, the ALJ includes mostly sound reasons supported by the 

record to discount Plaintiff’s allegations. With respect to the ALJ’s bases that Plaintiff does 

contest, the Court will briefly address each, as set forth below.

1. Daily activities

The ALJ considered Plaintiff’s daily activities, which is a factor that “may be used to 

discredit a claimant’s testimony.” Cullinan, 878 F.3d at 603. Plaintiff contends that the ALJ 

“confusingly” includes in her decision that Plaintiff was “active and doing things without any 

limitation” prior to the alleged onset date. Pl.’s Br. at 14, Dkt. 20. It would be improper for the 

ALJ to rely solely upon evidence that took place years prior to the alleged onset date; however, 

that is not what happened here. The ALJ cites to multiple treatment notes following the alleged 

onset date stating that Plaintiff was engaging in daily activities without limitations. R. 1029, 1032, 

1035, 1040.

Plaintiff argues that the ALJ disregarded his statements in a 2016 function report wherein 

he recounted various difficulties with activities of daily living, including that he had pain from 

walking, standing, and sitting; he had no endurance for long walks; he prepared meals that took a 

few minutes; and that his sons did his chores. Pl.’s Br. at 14, Dkt. 20; see R. 274-76. Plaintiff 

argues that an ALJ cannot disregard a claimant’s limitations in performing household activities. 

However, the ALJ did not ignore Plaintiff’s allegations.

The ALJ discussed the August 2016 function report at some length in her decision. While 

she did not specifically mention Plaintiff’s statement that meals took a few minutes and his sons 

did his chores, she did reference his statements that he did very little throughout the day aside from 

walking a little (two short walks a day), resting, eating, and taking medications. R. 1026. Her 

Case: 3:20-cv-50118 Document #: 29 Filed: 09/01/21 Page 5 of 22 PageID #:2352
6

discussion of the function report specifically included Plaintiff’s statements that he could walk a 

couple of blocks at most before feeling pain. The ALJ also recounted Plaintiff’s testimony that he 

had problems pouring water in the coffee pot and lifting 8 pounds; that he had trouble gripping 

and grabbing things; and that he could only wash 1 or 2 dishes before he needed to sit down. R. 

1026-28. The ALJ was not required to discuss every detail related to Plaintiff’s alleged limitations 

associated with those activities. See Gedatus v. Saul, 994 F.3d 893, 903 (7th Cir. 2021) (“an ALJ 

need not discuss every detail related to [a claimant’s daily activities] . . . [a]nd the presence of 

contradictory evidence and arguments does not mean the ALJ's determination is not supported by 

substantial evidence.”) (internal citation omitted); Deborah M. v. Saul, 994 F.3d 785, 791 (7th Cir. 

2021) (“[T]he ALJ’s failure to mention a few limitations on some of Plaintiff’s activities, if wrong 

at all, was not so ‘patently wrong’ as to warrant reversal.”). 

More importantly, the ALJ did take into consideration Plaintiff’s pain and restrictions in 

daily activities when she assessed Plaintiff’s residual functional capacity (“RFC”). The ALJ 

expressly stated that she considered Plaintiff’s pain complaints in her decision to limit Plaintiff to 

work at the light exertional level with additional functional limitations. She also addressed 

Plaintiff’s pain with walking, standing, and sitting with a sit-stand option, allowing him to change 

positions up to twice an hour while continuing to work at the workstation. R. 1040-41. See Schmidt 

v. Astrue, 496 F.3d 833, 844 (7th Cir. 2007) (“[T]he ALJ did not totally discount [the plaintiff’s] 

testimony regarding how her pain affected her ability to perform certain activities, as evinced by 

the ALJ’s decision to limit [the plaintiff’s] range of work to sedentary when assessing her residual 

functional capacity.”); see also Taylor v. Berryhill, No. 17 C 9098, 2018 WL 5249234, at *7 (N.D. 

Ill. Oct. 22, 2018); Spaulding v. Berryhill, No. 16-CV-6298, 2017 WL 3922878, at *11 (N.D. Ill. 

Case: 3:20-cv-50118 Document #: 29 Filed: 09/01/21 Page 6 of 22 PageID #:2353
7

Sept. 7, 2017). Therefore, the ALJ’s assessment of Plaintiff’s activities of daily living was not 

“patently wrong” and does not warrant remand.

2. Conservative treatment

a. Lack of Surgery

Plaintiff makes several arguments relating to the ALJ’s reliance on evidence of 

conservative treatment. As a general matter, an ALJ is entitled to consider the routine and 

conservative nature of a claimant’s treatment in assessing the claimant’s credibility. See Simila v.

Astrue, 573 F.3d 503, 519 (7th Cir. 2009). However, an ALJ cannot make assumptions about the 

claimant’s failure to seek treatment without asking the claimant about the reasons for 

noncompliance. See Keiper v. Berryhill, 383 F. Supp. 3d 819, 823 (N.D. Ind. 2019) (collecting 

cases). Here, Plaintiff asserted at the 2019 hearing that surgery had been an option for his 

back/neck issues but that his insurance had refused to approve diagnostic imaging. R. 1067. The 

ALJ stated in a footnote that she did not see any issues with insurance refusals documented in the 

record and that there were “a dozen diagnostic imaging evaluations” noted in the record, including 

most recently in September 2019. R. 1027. Plaintiff assertsthat, contrary to the ALJ’s commentary, 

there are references in the record regarding Plaintiff’s inability to afford care.

2 Pl.’s Br. at 13, Dkt. 

20. However, the ALJ does not comment one way or the other on whether Plaintiff can afford care. 

She simply notes that the records do not reflect insurance denials and, more significantly, she notes 

a “dozen” radiographic tests in the charts, thus casting doubt on Plaintiff’s statements that he did 

not have surgery because insurance denied diagnostic testing.

Plaintiff also argues that the evidence supports that surgery and further imaging was not 

performed due to Plaintiff’s underlying medical conditions. Pl.’s Br. at 13, Dkt. 20. However, the 

2 Plaintiff cites to two record entries. One refers to an inability to afford a specific medication. The other 

does not refer to an inability to afford care. 

Case: 3:20-cv-50118 Document #: 29 Filed: 09/01/21 Page 7 of 22 PageID #:2354
8

notes that Plaintiff cites do not support his contention. One of Plaintiff’s citations is to a treatment 

note from Dr. Yeager, in which Plaintiff himself expresses hesitancy about surgery, so Dr. Yeager 

advised Plaintiff to contact him regarding surgical intervention when he was ready. R. 967. 

Plaintiff also cites to a treatment note from Dr. Plescia, which states that Plaintiff was requesting 

imaging and further workup and Dr. Plescia explained that he felt further testing would not be 

helpful, but in fact could be dangerous (due to the significant number of radiographic tests that had 

already been performed on Plaintiff). R. 1711. Moreover, the Court was unable to find evidence 

in the record that any of Plaintiff’s physicians had concerns about surgery due to his medical 

conditions. Based on the above information, the ALJ was not patently wrong to consider the lack 

of surgery in support of her contention that Plaintiff’s treatment was conservative.

b. Lack of Pain Medication

Plaintiff’s second argument concerns the ALJ’s reliance on his lack of pain medication.

Pl.’s Br. at 14-15, Dkt. 20. The fact that a claimant does not take pain medication is a relevant 

factor to consider when determining a claimant’s statements about pain. See Stewart v. Berryhill, 

731 F. App’x 509, 510 (7th Cir. 2018) (citing Schmidt v. Barnhart, 395 F.3d 737, 747 (7th Cir. 

2005)). Plaintiff argues that he could not be on pain medication because he was on blood thinners 

and that he had tried Gabapentin, but experienced negative side effects. The ALJ recognized 

Plaintiff’s assertions that he did not take pain medication because he was on blood thinners or 

because Gabapentin caused side effects but pointed to numerous places in the record demonstrating 

that Plaintiff often refused to take the medication based on his own preference. R. 1035-37, 1040.

Moreover, the ALJ noted that Plaintiff even refused to take topical pain relievers, despite there 

being no alleged contraindication to the same. R. 1438. Plaintiff does not address the ALJ’s

Case: 3:20-cv-50118 Document #: 29 Filed: 09/01/21 Page 8 of 22 PageID #:2355
9

reasoning in this regard. The ALJ’s reliance on Plaintiff’s lack of pain medication was not patently 

wrong.

c. Hospitalization and Injections

Plaintiff next conteststhe ALJ’s conclusion that he was treated conservatively during 2016-

2017. Pl.’s Br. at 15-16, Dkt. 20. As an initial point, the ALJ referenced Plaintiff’s conservative 

treatment throughout the relevant period, not just the first year following the alleged onset date. R. 

1040. She relies on the evidence that Plaintiff’s treatment has consisted primarily of injections that 

provided relief and that he has self-treated with diet and lifestyle changes that have contributed to 

the improvement of some of his conditions. Id. Plaintiff challenges the ALJ’s conclusion, pointing 

out that he was hospitalized for cardiac issues, and he received injections to his lower extremities

for which relief was short-lived. Pl.’s Br. at 15-16, Dkt. 20. 

With respect to Plaintiff’s assertion that his hospitalization for cardiac issues contradicts 

the ALJ’s conclusion that his treatment was conservative, the ALJ had noted in her decision that 

his one additional DVT episode resulting in hospitalization was due to voluntary non-compliance 

with his medication. R. 1040. The implication is that, if Plaintiff had been compliant with his 

prescribed course of treatment, he would have avoided this hospitalization. Plaintiff responds that 

his noncompliance was less of a choice than an inconvenience of frequent INR monitoring and 

uncertainty about which foods would interfere with his medication. Pl.’s Br. at 18, Dkt. 20.

However, according to a treatment note relating to this hospitalization, Plaintiff mentioned he had 

not been taking his medication for the last week to 9 days and the doctor noted Plaintiff had been 

noncompliant from time to time. R. 1694. It is permissible for a court to consider noncompliance 

with medication as part of a subjective symptoms analysis. See, e.g., Lamantia v. Berryhill, No. 

Case: 3:20-cv-50118 Document #: 29 Filed: 09/01/21 Page 9 of 22 PageID #:2356
10

16 C 2691, 2017 WL 3263477, at *10 (N.D. Ill. Aug. 1, 2017); Ellis v. Barnhart, 384 F. Supp. 2d 

1195, 1204 (N.D. Ill. 2005).

Regarding Plaintiff’s contention that his numerous injections belie the ALJ’s conclusion 

that his treatment was conservative, many courts categorize such treatment as “conservative care.” 

See Olsen v. Colvin, 551 F. App’x. 868, 875 (7th Cir. 2014); Frazier v. Berryhill, 2019 WL 157911 

(N.D. Ill. Jan. 10, 2019). More importantly, the ALJ did not rely solely on the fact that Plaintiff 

treated with injections to support her conclusion that his treatment was conservative. She also 

relied on the fact that those injections provided good relief for his symptoms. R 1031, 1032, 1033.

Accordingly, it was not patently wrong for the ALJ to consider Plaintiff’s treatment conservative 

and to discount Plaintiff’s subjective symptom testimony on that basis.

3. Acute distress

In her decision, the ALJ states that, “Despite reports of severe pain, [Plaintiff] was often in 

no acute distress on examination, and Dr. Plescia noted [Plaintiff] to be talkative or making jokes, 

while seeking more treatment for his pain complaints.” R. 1040. Plaintiff cites several cases stating

that one cannot assume what a medical professional means by the phrase “no acute distress,” 

especially when there is no discussion or explanation in the entry. Pl.’s Br. at 16, Dkt. 20. See, 

e.g., Wanserski v. Colvin, No. 1:14-CV-1033-DKL-JMS, 2015 WL 5692521, at *7 (S.D. Ind. Sept. 

28, 2015) (noting that “acute” can refer to a disease, health effect, or symptom having a sudden, 

abrupt onset and a short, but severe, course, as opposed to a chronic condition or symptom having 

a slow development and a protracted but mild course; and, for physicians' purposes, 

“no acute distress” can simply mean that a patient will probably not become unstable in the next 

five minutes). While this Court notes that a number of courts have made such a finding, a 

significant number of other courts have ruled that a finding of “no acute distress” is a relevant 

Case: 3:20-cv-50118 Document #: 29 Filed: 09/01/21 Page 10 of 22 PageID #:2357
11

factor for an ALJ to consider in a symptom evaluation, especially when accompanied by other 

findings. See Spencer v. Saul, No. 20-CV-3028, 2021 WL 1199027, at *13 (C.D. Ill. Mar. 30, 

2021) (collecting cases). More importantly, the Seventh Circuit has upheld an ALJ’s decision in 

which the ALJ relied on examination notes that a claimant was in no acute distress along with 

other evidence to evaluate the severity of a claimant’s symptoms. Schaaf v. Astrue, 602 F.3d 869, 

876 (7th Cir. 2010). Here, the ALJ relied not only on the repeated finding that Plaintiff was in “no 

acute distress,” she also relied on the fact that Plaintiff was talkative or making jokes while 

requesting additional treatment for his pain. Further, as set forth above, the ALJ listed over 15 

reasons for discounting Plaintiff’s reports of pain and disabling symptoms. As such, it was not 

error for the ALJ to rely on physicians’ records finding Plaintiff in no acute distress in evaluating 

the severity of his symptoms. 

4. Truck driving

Plaintiff points out a footnote in which the ALJ states that a record reflects that he stopped 

driving trucks in 2017, a year after his alleged onset date. Pl.’s Br. at 17, Dkt. 20. Plaintiff states 

that the ALJ failed to question him about this at the hearing, proposes that this was simply an error, 

and questions why the ALJ gave weight to the reference regarding work. Id. As the Commissioner 

points out, there is no indication that the ALJ relied on this record as a reason to discount Plaintiff’s 

allegations. Def.’s Resp. at 5, Dkt. 25. However, even if the ALJ did give weight to this, not all of 

the ALJ’s reasons must be valid in a subjective symptom analysis, “as long as enough of them 

are.” Halsell, 357 F. App’x at 722 (emphasis in original). The Court finds that, even without the

reference to truck driving, the ALJ included sufficient evidence in her decision to support her 

evaluation of Plaintiff’s subjective allegations.

Case: 3:20-cv-50118 Document #: 29 Filed: 09/01/21 Page 11 of 22 PageID #:2358
12

In sum, because the ALJ “pointed to specific findings and evidence to support her 

credibility determination” on this matter, it is not the Court’s place to second-guess it. Morrison, 

806 F. App'x at 474 (citing Murphy, 759 F.3d at 815-16, as amended (Aug. 20, 2014) (noting 

credibility determination is patently wrong if it “lacks any explanation or support”)). The 

subjective symptom evaluation as a whole was not patently wrong and thus a remand is not 

warranted.

B. Vocational Expert Testimony

The Commissioner has the burden at step five to show that work exists in significant 

numbers in the national economy. 20 C.F.R. § 404.1560(c)(2). See McKinnie v. Barnhart, 65 F. 

App'x 80, 84 (7th Cir. 2003). At the first hearing, the ALJ heard testimony from VE Richard Fisher,

who testified that given Plaintiff’s age, education, work experience, and RFC, there existed a 

sufficient number of jobs in the national economy. He stated that 3 jobs were available: an 

information clerk with 66,000 jobs nationally, a marker with 169,000 jobs nationally, and a mail 

clerk with 43,000 jobs nationally. R. 66-67. Plaintiff’s attorney was given the opportunity to 

question the VE and he did not have any questions, nor did Plaintiff make any objections. 

On remand, the ALJ was instructed: “As necessary, the [ALJ] will obtain supplemental 

evidence from a vocational expert to clarify the assessed limitations on the claimant’s occupational 

base.” R. 1171. At the second hearing, the ALJ called a new VE to testify. The ALJ questioned 

the new VE using hypotheticals based on the same RFC utilized in the first hearing. VE Eric 

Dennison stated that 3 jobs were available: an information clerk with 74,000 jobs nationally, a 

marker with 54,000 jobs nationally, and an office helper with 11,000 jobs nationally. R. 1100. 

Plaintiff’s counsel questioned the VE about the reliability of the methodology he used to produce 

the job numbers, and the VE responded that he uses software called OccuBrowse+, from a 

Case: 3:20-cv-50118 Document #: 29 Filed: 09/01/21 Page 12 of 22 PageID #:2359
13

company called SkillTRAN, and breaks the numbers down using the equal distribution method. 

R. 1108-09. Plaintiff objected to the methodology used by the VE on the basis that it produces job 

numbers that potentially encompass different exertional levels and skill levels. R. 1112-13. He 

also stated that “the equal distribution method was a concern of the Seventh Circuit case Chavez 

v. Berryhill.” R. 1113. See Chavez v. Berryhill, 895 F.3d 962 (7th Cir. 2018).3

In her decision, the ALJ did not rule on the objection made at the hearing. Instead, she 

noted in her opinion:

As noted in the remand order, supplemental vocational expert testimony was only 

required if necessary. Because, as discussed above, I have determined that the more 

restrictive residual functional capacity set forth in the first decision remains 

appropriate and supported by the evidence throughout the course of the relevant 

time period, I have relied on the vocational expert’s testimony from the first 

hearing. Accordingly, the objections offered by the claimant’s representative to the 

testimony of the vocational expert at the remand hearing need not be addressed.

R. 1043.

Plaintiff first asserts that, “[w]hen the Appeals Council remanded this case, it wrote ‘as necessary, 

the ALJ will obtain supplemental evidence from a VE.’” Pl.’s Br. at 19, Dkt. 20 (emphasis in 

original). In other words, Plaintiff appears to be asserting that the ALJ was required to obtain new

VE testimony. This is incorrect. As quoted above, the Appeals Council directed the ALJ to do so

“[a]s necessary.” R. 1171 (emphasis added). When an ALJ determines that a claimant’s RFC 

remains the same on rehearing, the ALJ can rely on VE testimony from a prior hearing concerning 

that RFC. See Fernandez v. Colvin, 642 F. App'x 878, 881-82 (10th Cir. 2016) (unpublished)

(because the ALJ had determined that the plaintiff’s RFC did not need to be modified, the ALJ 

3 The Court will not delve into the objection itself since the Court finds that the ALJ could appropriately 

rely on the previous VE testimony for other reasons. However, the Court finds it important to point out 

that the Seventh Circuit has explained that “Chavez did not enjoin the use of the equal-distribution 

method and created ‘no new obligations’ at step five; the substantial-evidence standard still governs.” 

Coyier v. Saul, No. 20-1899, 2021 WL 2173425, at *2 (7th Cir. May 27, 2021) (citation omitted).

Case: 3:20-cv-50118 Document #: 29 Filed: 09/01/21 Page 13 of 22 PageID #:2360
14

could properly rely on the testimony of a VE from a prior hearing and was not required to rely on 

that from the most recent hearing); Ramey v. Colvin, 7:15-CV-242, 2016 WL 4529787 (W.D. Va. 

Aug. 3, 2016), report and recommendation adopted, 7:15-CV-00242, 2016 WL 4532414 (W.D. 

Va. Aug. 29, 2016) (holding that reliance on VE testimony given at a hearing from a prior 

application is not per se improper when the ALJ’s present RFC was the exact same as the RFC 

determined in the prior case); Hylton v. Colvin, No. 4:13-cv-00067, 2015 U.S. Dist. LEXIS 92850 

(W.D. Va. July 17, 2015) (same); Holzworth v. Colvin, No. 2:12-CV-916 BCW, 2014 WL 

6977700, at *2 (D. Utah Dec. 9, 2014) (discussing that an ALJ can properly rely on VE testimony 

from a prior hearing rather than the most recent hearing when the RFC has not changed); Paulson 

v. Astrue, 368 Fed. App’x. 758 (9th Cir. 2010) (unpublished) (holding that the ALJ did not err by 

relying on the testimony of a VE from a prior hearing because the ALJ found nothing warranted 

modifying the previous RFC findings). Accordingly, because the ALJ in this case determined that 

the RFC did not change, the remand order did not require her to hear testimony from a new VE.

Plaintiff next argues:

Instead of ruling on the objection or obtaining supplemental VE testimony from a 

different VE, the ALJ adopted prior testimony of 2/3 of the same jobs, with no 

evidence as to the job data methodology or why there was a huge disparity in job 

data. It does not make sense that because one representative questioned 

methodology and one did not, the unchallenged testimony is now more reliable.

Id. at 20. To the extent that Plaintiff is arguing that there is no evidence as to the methodology for 

the job data provided by the VE at the first hearing, the Court finds this argument unavailing.

Plaintiff’s former counsel had the opportunity to object at the hearing and did not do so, which 

effectively means that he forfeited any objections. See Coyier, 2021 WL 2173425, at *2 

(“[Plaintiff] waived any challenge to the VE's testimony by failing to ask any questions to reveal 

shortcomings in the job-number estimates . . . [This] effectively conceded the reliability of the 

Case: 3:20-cv-50118 Document #: 29 Filed: 09/01/21 Page 14 of 22 PageID #:2361
15

VE's job numbers.”); Teschner v. Colvin, No. 15 CV 6634, 2016 WL 7104280, at *13 (N.D. Ill. 

Dec. 6, 2016) (finding that, when a claimant is represented by counsel at an administrative hearing, 

“[a] claimant waives any subsequent objection to a VE's unexplained testimony on the source of 

job numbers when her counsel fails to question the VE on that issue at the hearing.”).

Finally, even though the ALJ was not required to call a new VE to testify in this case, the 

fact is that she did call a new VE. Thus, it appears that Plaintiff is arguing that once a new VE is 

called to testify the ALJ may no longer rely on the previous VE’s testimony even if the RFC did 

not change. Plaintiff cites no support for such a statement. Although it does not appear that the 

Seventh Circuit has addressed this type of situation, another court of appeals has analyzed the issue

in Garza v. Apfel, 162 F.3d 1173 (10th Cir. 1998) (unpublished table decision).

4 The facts in Garza 

are as follows: the ALJ held a hearing in which a VE testified, and the ALJ ultimately ruled against 

the plaintiff. Id. at 1. On review, the Appeals Council remanded the case for further consideration 

and ordered the ALJ to obtain testimony from a VE. Id. After holding a second hearing with 

another VE, the ALJ again issued a decision denying the plaintiff’s claims. Id. at 2. The ALJ had 

determined that the plaintiff’s RFC had not changed since the first hearing and relied on the 

testimony of the VE from the first hearing in his decision. Id. On appeal, the plaintiff contested the 

fact that the ALJ ignored the second VE’s testimony and instead relied on the first VE’s testimony. 

Id.

The Tenth Circuit ultimately found that the ALJ could properly rely on the first VE’s 

testimony for three reasons. Id. at 3. First, the court noted that the regulations provide that “[t]he 

[ALJ] shall take any action that is ordered by the Appeals Council and may take any additional 

4 The Court acknowledges that this case is non-precedential due to its unpublished nature as well as the 

fact that it is an opinion arising out of another circuit. Nevertheless, the Court references this case because 

of the limited number of cases on this topic and because of its persuasive authority. 

Case: 3:20-cv-50118 Document #: 29 Filed: 09/01/21 Page 15 of 22 PageID #:2362
16

action that is not inconsistent with the Appeals Council's remand order,” and found that declining 

to adopt the second VE’s testimony was not inconsistent. Id. at 2. (citing 20 C.F.R. §§ 404.977(b); 

416.1477(b)). Second, the court stated that VE testimony from the second hearing was not binding 

on the ALJ because “the hypotheticals posed to the second VE did not set forth only impairments 

which had been accepted as true by the ALJ.” Id. Lastly, the court explained that, because the 

hypothetical the ALJ propounded to the VE at the first hearing contained the same RFC found by 

the ALJ following the remand, the ALJ could rely upon the first VE’s testimony. Id. at 3.

Applying Garza to the facts in the instant case, the Court finds that the ALJ could properly 

rely on the first VE’s testimony. First, as set forth above, the language of the Appeals Council’s 

remand order did not require that new VE testimony be heard. Second, none of the hypotheticals 

posed to the second VE had yet to be accepted by the ALJ, so the second VE’s testimony was not 

binding. Finally, the ALJ in this case explicitly stated her reasoning for choosing to adopt the same 

RFC on remand and had posed a hypothetical to the first VE based on that original RFC. Therefore, 

it was appropriate for the ALJ to rely on the first VE’s testimony.

C. Opinion Evidence

Plaintiff devotes less than two pages to his argument that the ALJ improperly weighed 

the opinion evidence of three physicians. Once again, Plaintiff’s arguments are undeveloped.

1. Dr. Painter 

Plaintiff argues that the ALJ did not correctly apply the treating physician rule (“TPR”)5

when evaluating the opinion of Dr. Painter. Pl.’s Br. at 21, Dkt. 20. A treating physician’s opinion 

5 The Social Security Administration recently modified the TPR to eliminate the "controlling weight" 

instruction. See 20 C.F.R. § 404.1520c ("We will not defer or give any specific evidentiary weight, 

including controlling weight, to any medical opinion(s) . . ., including those from your medical sources."). 

However, the new regulations apply only to disability applications filed on or after March 27, 2017. 

Compare 20 C.F.R. § 404.1527 ("For claims filed (see § 404.614) before March 27, 2017, the rules in this 

section apply.") (emphasis added) with 20 C.F.R. § 404.1520c ("For claims filed (see § 404.614) on or 

Case: 3:20-cv-50118 Document #: 29 Filed: 09/01/21 Page 16 of 22 PageID #:2363
17

is entitled to controlling weight if it is “well-supported by medically acceptable clinical and 

laboratory diagnostic techniques” and if it is “not inconsistent with the other substantial evidence 

in the case.” Scott v. Astrue, 647 F.3d 734, 739 (7th Cir. 2011). If an ALJ does not give a treating 

source’s opinion controlling weight, the ALJ must consider the length, nature, and extent of the 

treatment relationship, frequency of examination, the physician’s specialty, the types of tests 

performed, and the consistency and supportability of the physician’s opinion. 20 C.F.R. 

§ 404.1527(c). 

Here, the ALJ gave Dr. Painter’s opinions little weight. She based her decision on the fact 

that Dr. Painter saw Plaintiff for a two-month period, between September and November 2018, 

yet he offered an opinion in August 2019 without having examined or treated Plaintiff for nearly 

a year. The ALJ pointed out that there were several evaluations ordered by Dr. Painter, but only 

one treatment note from Dr. Painter appeared in the record. Moreover, that one treatment note 

indicates that the exam was not overly concerning or consistent with frank radiculopathy. He 

further noted mild peripheral neuropathy with no evidence for active radiculopathy, 5/5 strength 

and intact sensation. The ALJ noted that these findings were inconsistent with Dr. Painter’s 

statement that the extreme limitations he assessed were supported in part by “chronic axonal 

polyneuropathy” and “left cervical radiculitis.” The ALJ also explicitly stated that she found Dr. 

Painter’s opinions unsupported by the longitudinal record, Dr. Plescia’s recommendations, and Dr. 

Goldstein’s opinion testimony. R. 1041-42. An ALJ’s opinions regarding the weight to be given 

to a treating physician will be upheld if supported by good reasons. Because the ALJ has 

sufficiently accounted for the factors with evidence supported by the record, her evaluation is 

supported by substantial evidence. See Schreiber v. Colvin, 519 F. App'x 951, 959 (7th Cir. 2013) 

after March 27, 2017, the rules in this section apply."). Plaintiff's application in this case was filed in 

2016. Accordingly, the ALJ was required to apply the TPR when deciding Plaintiff's application.

Case: 3:20-cv-50118 Document #: 29 Filed: 09/01/21 Page 17 of 22 PageID #:2364
18

(“[O]ur inquiry is limited to whether the ALJ sufficiently accounted for the factors in 20 C.F.R. 

§ 404.1527.”).

Plaintiff specifically challenges the ALJ’s consideration of certain TPR factors. First, 

Plaintiff asserts that Dr. Painter, unlike Dr. Plescia, is a specialist in pain management, and the 

ALJ failed to address this. However, Plaintiff did not provide any citation in support of his 

assertion that Dr. Painter was a “specialist in pain management” and this Court was unable to find 

any such reference in the record. The ALJ did, however, acknowledge that Dr. Painter was part of 

the Lundholm Orthopedics department, meeting the TPR factor requiring an ALJ to consider a 

physician’s specialty. See 20 C.F.R. § 404.1527(c)(5). R. 1912, 1929. Therefore, the ALJ did not 

err in her consideration of Dr. Painter’s specialty.

Plaintiff next argues that there are records that support Dr. Painter’s conclusions. Plaintiff

cites to medical records showing he had lower extremity problems with faint pedal pulses, pain, 

and a burning/tingling sensation; he was noted to have neuropathy; disc disease from a cervical 

MRI; EMG testing confirmed polyneuropathy in 2018; mild degenerative changes from an MRI 

of the thoracic spine; and he testified about falling and being in greater pain if he was on his feet 

all day. In the Court’s reading, Plaintiff seems to be arguing that the ALJ engaged in “cherry 

picking” when considering the TPR factor of consistency and supportability of the physician’s 

opinion. See 20 C.F.R. § 404.1527(c)(3)-(4). However, the ALJ discussed each of these records in 

her opinion and provided multiple reasons for discounting them.

With respect to the records Plaintiff cites concerning his lower extremity pain and the pain 

he experiences when he is on his feet for long periods, the ALJ noted that Plaintiff was being 

treated conservatively and relied on Dr. Goldstein’s opinion that Plaintiff’s pain complaints were 

out of proportion to his medically determinable impairments. R. 1038, 1040. Regarding the 

Case: 3:20-cv-50118 Document #: 29 Filed: 09/01/21 Page 18 of 22 PageID #:2365
19

evidence of neuropathy, the ALJ wrote that Dr. Goldstein provided a detailed explanation of 

Plaintiff’s most recent EMG study results and opined that the neuropathy was “barely mild.” R. 

1039. The ALJ also pointed out that Dr. Painter himself characterized the polyneuropathy as mild. 

R. 1042. Finally, concerning the MRI results showing degenerative changes and disc disease, the 

ALJ noted that certain functional limitations could accommodate these issues. R. 1041. The Court 

finds that the ALJ’s interpretation and weighing of the evidence was reasonable, so it will not 

undertake to reweigh it. See Wegner v. Barnhart, 105 F. App'x 80, 83 (7th Cir. 2004).

2. Dr. Goldstein

Plaintiff seems to assert that the ALJ selectively chose to give significant weight to certain 

aspects of Dr. Goldstein’s testimony while failing to consider aspects of the testimony that favored 

Plaintiff. Pl.’s Br. at 22-23, Dkt. 20. In support of this assertion, Plaintiff points to three parts of 

Dr. Goldstein’s testimony. Id.

First, Plaintiff argues that Dr. Goldstein admitted that Plaintiff was deconditioned and less 

than sedentary. However, this is a distortion of Dr. Goldstein’s testimony. At several points 

throughout the hearing, Dr. Goldstein made it clear that this statement was based purely on 

Plaintiff’s own testimony and the fact that he was simply not doing anything, not based on any 

medically determinable impairments. R. 1080-81, 1090, 1094-95. When directly asked by the ALJ 

what functional level Plaintiff was able to perform, Dr. Goldstein responded that Plaintiff could 

perform a light level activity. R. 1094. Accordingly, the Court finds that the testimony about 

Plaintiff being “deconditioned and less than sedentary” does not contradict the ALJ’s use of Dr. 

Goldstein’s opinions in her assessment.

Plaintiff next argues that the ALJ relied on Dr. Goldstein’s testimony about neuropathy 

despite the fact that he acknowledged that one could have neuropathy with normal or mild EMG 

Case: 3:20-cv-50118 Document #: 29 Filed: 09/01/21 Page 19 of 22 PageID #:2366
20

results and conceded that there was evidence of diabetic neuropathy in the record. With respect to 

EMG results, Plaintiff misrepresents Dr. Goldstein’s testimony. At the hearing, Plaintiff’s counsel 

asked whether an individual could have neuropathy with an EMG coming back as normal or mild. 

Dr. Goldstein responded: “Well he can have what’s called a small motor fiber neuropathy, small 

fiber neuropathy, and that’s usually diagnosed with biopsy.” R. 1085-86. This certainly does not 

mean that he believed Plaintiff had this type of neuropathy; it was an explanation of what was

generally possible. Additionally, despite the fact that Dr. Goldstein admitted that there was “some 

evidence” of diabetic neuropathy in the record, R. 1087, he did not rescind his opinion that “to say 

[Plaintiff] has significant peripheral neuropathy is a stretch,” nor did he change his RFC 

assessment. R. 1085, 1094. Furthermore, the ALJ made a point to note that, in subsequent 

appointments, monofilament testing was normal and showed grossly intact neurological 

examinations. R. 1039. The Court finds that Dr. Goldstein’s testimony concerning neuropathy does 

not negate the ALJ’s use of his opinions.

Plaintiff’s final contention with respect to Dr. Goldstein is related to the fact that he found 

Plaintiff’s significant pain complaints to be in excess of the objective evidence. Plaintiff argues 

that the ALJ failed to explain why that “supports a finding of light work other than ME Goldstein’s 

wavering testimony.” Pl.’s Br. at 23, Dkt. 20. To the contrary, the ALJ provided a detailed and 

thorough explanation of why the evidence, including Dr. Goldstein’s opinions, support a finding 

of light work. See R. 1034-42. 

3. Dr. Plescia

Plaintiff also takes issue with the fact that the ALJ found Dr. Plescia’s records supported 

her conclusion. Pl.’s Br. at 16-17, 23, Dkt. 20. Plaintiff first argues that, while the ALJ indicates 

she relies on Dr. Plescia’s examination, she ignores Dr. Plescia’s notes “supporting pain and a 

Case: 3:20-cv-50118 Document #: 29 Filed: 09/01/21 Page 20 of 22 PageID #:2367
21

need to be in a sedentary position.” Id. at 16-17. In the Court’s reading, Plaintiff appears to be 

making the argument that the ALJ selectively “cherry picked” Dr. Plescia’s notes to support her 

subjective symptoms evaluation. 

In response to a “cherry picking” argument, courts find that an ALJ has not been improperly 

selective in building their reasoning when the ALJ has pointed to numerous treatment notes from 

that doctor supporting her opinion and has discussed both positive and negative treatment notes. 

See Baumann v. Saul, No. 20-CV-11-WMC, 2020 WL 7237921, at *8 (W.D. Wis. Dec. 9, 2020); 

Sutherland v. Astrue, No. 2:11 CV 24, 2012 WL 911898, at *10 (N.D. Ind. Mar. 15, 2012). In her 

decision, the ALJ in this case pointed to numerous treatment notes from Dr. Plescia supporting her 

decision, R. 1040, 1042, and engaged in a discussion of both positive and negative treatment notes

from Dr. Plescia, R. 1035, 1040. Therefore, the ALJ’s consideration of and reliance on Dr. 

Plescia’s treatment notes and opinions are supported by substantial evidence.

Plaintiff also argues that the ALJ’s RFC is inconsistent with a treatment note where, in 

response to Dr. Plescia’s suggestion to become more physically active, Plaintiff indicated he could 

not walk due to his pain. In the same treatment record from May 2017, however, Dr. Plescia 

expressed frustration that Plaintiff seemed to have a reason to not do every idea he came up with. 

R.1436. The record demonstrates that Dr. Plescia, who was well aware of Plaintiff’s complaints of 

pain, consistently recommended that Plaintiff be more active and discouraged him from things that 

would enable him to move less, such as disability benefits and a disability placard.

6 R. 980, 1711. 

See Roxanne L. v. Berryhill, No. 18 CV 50059, 2019 WL 2173789, at *6 (N.D. Ill. May 20, 2019) 

(“Presumably, the doctor would not have advocated that [the plaintiff] be more active if he believed 

6 Moreover, several other doctors that treated Plaintiff (including Dr. Painter in October 2018, Dr. 

Caceres in February 2019, and Dr. Taylor in October 2019) tried to encourage him to exercise more. R. 

1472, 1929, 2128.

Case: 3:20-cv-50118 Document #: 29 Filed: 09/01/21 Page 21 of 22 PageID #:2368
22

she was not physically capable of doing so.”). Based on these consistent notes from Dr. Plescia 

recommending Plaintiff move and exercise more, the Court concludes that the assertion that Dr. 

Plescia’s records support the RFC is supported by substantial evidence.

IV. CONCLUSION

For the foregoing reasons, Plaintiff’s motion for summary judgment is denied, the 

Commissioner’s motion is granted, and the ALJ’s decision is affirmed. 

Date: September 1, 2021 By: ___________________________

Lisa A. Jensen

United States Magistrate Judge

Case: 3:20-cv-50118 Document #: 29 Filed: 09/01/21 Page 22 of 22 PageID #:2369