UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

CARLA S.,

Plaintiff,

v.

MARTIN O’MALLEY,

COMMISSIONER OF SOCIAL SECURITY,1

Defendant.

No. 20 CV 3755

Magistrate Judge McShain

MEMORANDUM OPINION AND ORDER

Plaintiff Carla S. brings this action for judicial review of the Social Security 

Administration’s (SSA) decision denying her application for benefits. For the 

following reasons, plaintiff’s request to reverse and remand the SSA’s decision [20]2

is granted, defendant’s motion for summary judgment [24] is denied, and this case is 

remanded to the agency for further administrative proceedings. 42 U.S.C. § 405(g). 

Background

A. Procedural Background

On or around December 13, 2013,3 plaintiff filed a Title II application for a 

period of disability and disability insurance benefits. [17-1] 209–12. On or around 

January 10, 2014, plaintiff filed a Title XVI application for supplemental security 

income. [Id.] 213–18. In both applications, plaintiff alleged a disability onset date of 

1 Martin J. O’Malley was sworn in as the Commissioner of Social Security Administration on December 

20, 2023. 

2 Bracketed numbers refer to entries on the district court docket. Referenced page numbers are taken 

from the CM/ECF header placed at the top of filings, except for citations to the administrative record 

[17-1, 17-2], which refer to the page numbers in the bottom right corner of each page.

3 Plaintiff states that she filed her applications on January 10, 2014. [20] 1 (citing [17-1] 209–18). The 

Commissioner states that plaintiff filed for disability insurance benefits and supplemental security 

income in December 2013. [24] 2. See also [id.] 11, 23 (ALJ’s 2016 decision stating that both 

applications were filed December 13, 2013). The cited records are dated January 10, 2014, [17-1] 209–

18, but they state that plaintiff completed the application for benefits under Title II on December 16, 

2023, [id.] 209, and applied for benefits under Title XVI on January 10, 2014, [id.] 13. Any discrepancy 

is not relevant to the Court’s review. 

Case: 1:20-cv-03755 Document #: 37 Filed: 01/10/24 Page 1 of 19 PageID #:1479
2

June 18, 2011,4 [id.] 11, 213, 595, based on her fibromyalgia, chronic depression, 

obesity, and hypertension. [Id.] 244. The agency denied plaintiff’s applications 

initially and on reconsideration. [Id.] 146–55. 

On November 10, 2014, plaintiff requested a hearing, [id.] 159, which was held 

before an administrative law judge (ALJ) on April 7, 2016. [Id.] 11, 36–76. In a 

decision dated June 20, 2016, the ALJ found that plaintiff was not disabled and 

denied her applications. [Id.] 23. After the Appeals Council upheld the ALJ’s decision, 

plaintiff filed a complaint for judicial review of the agency’s decision. [Id.] 725–26. On 

February 26, 2018, Magistrate Judge Schenkier reversed the Commissioner’s 

decision and remanded for further administrative proceedings consistent with the 

parties’ joint stipulation for a new hearing and decision. [Id.] 581, 758–60. 

On May 16, 2018, the Appeals Council remanded to the ALJ with instructions 

to reevaluate the opinions of the state agency consultants and to give further 

consideration to claimant’s RFC or, more specifically, to “explain why a prior opinion 

limiting claimant to 1–3 step tasks was not given weight and to provide an 

evidentiary basis for the leg elevation limitation found in the” June 20, 2016 decision. 

[Id.] 581, 595, 792–97. A hearing was held before the same ALJ on October 26, 2018. 

[Id.] 595, 622–54. In a decision dated January 2, 2019, the ALJ addressed these issues 

and found that plaintiff was not disabled, as defined by the Social Security Act, from 

June 18, 2011 through the date of the decision. [Id.] 595–612.

The Appeals Council denied review on April 29, 2020, rendering the ALJ’s 

decision the final decision of the Commissioner. [Id.] 581–85. See 20 C.F.R. §§ 404.955 

& 404.981; Gedatus v. Saul, 994 F.3d 893, 898 (7th Cir. 2021). Plaintiff timely 

appealed to this Court [1], and the Court has subject-matter jurisdiction to review 

the Commissioner’s decision under 42 U.S.C. § 405(g).5

B. The ALJ’s Decision

The ALJ reviewed plaintiff’s disability claim in accordance with the SSA’s fivestep sequential evaluation process. At step one, the ALJ found that plaintiff had not 

engaged in substantial gainful activity since June 18, 2011, the alleged onset date. 

[17-1] 598. At step two, the ALJ found that plaintiff has the following severe 

impairments: morbid obesity, fibromyalgia, and depression. [Id.] The ALJ found that 

plaintiff’s hypertension and osteoarthritis of the knee and hip are non-severe 

4 There is also a discrepancy in this date. Plaintiff’s brief states that she alleged she was disabled 

beginning May 18, 2011. [20] 1. Plaintiff’s Title II application states she became unable to work 

because of her disabling condition on May 18, 2011, and her Title XVI application states her disability 

began on June 18, 2011. [17-1 209, 213. Both the ALJ’s 2016 and 2019 decisions state that plaintiff 

alleged disability beginning June 18, 2011. [Id.] 11, 595. Again, however, the precise date is irrelevant 

for purposes of this appeal. 

5 The parties have consented to the exercise of jurisdiction in this case by a United States Magistrate 

Judge [30, 32]. 

Case: 1:20-cv-03755 Document #: 37 Filed: 01/10/24 Page 2 of 19 PageID #:1480
3

impairments. [Id.] 599. At step three, the ALJ found that plaintiff does not have an 

impairment or combination of impairments that meets or medically equals the 

severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 

1. [Id.] 599–600. Before turning to step four, the ALJ determined that plaintiff has 

the residual functional capacity (RFC) to perform sedentary work, except she can only 

occasionally use ramps and stairs; never use ladders, ropes, or scaffolds; only 

occasionally balance, stoop, kneel, crouch, and crawl; and have only occasional 

exposure to hazards, extreme temperatures, humidity, dust, fumes, and pulmonary 

irritants. [Id.] 600–11. The ALJ also limited plaintiff to simple, routine, repetitive 

tasks; simple work-related decisions; occasional workplace changes; and no hourly 

production rate pace. [Id.] At step four, the ALJ concluded that plaintiff is unable to 

perform her past relevant work as a benefits manager and a receptionist. [Id.] 611. 

At step five, the ALJ ruled that there are jobs that exist in significant numbers in the 

national economy that plaintiff can perform, including sorter (7,000 jobs), assembler 

(15,000 jobs), and packer (11,500 jobs). [Id.] 611–12. 

Legal Standard

To be entitled to benefits under the Social Security Act, a claimant must be 

“aged, blind, or disabled.” 42 U.S.C. § 1382(a)(1). The Act defines disability as the 

inability “to engage in any substantial gainful activity by reason of any medically 

determinable physical or mental impairment which can be expected to result in death 

or which has lasted or can be expected to last for a continuous period of not less than 

twelve months.” Id. at § 1382c(a)(3)(A). 

In evaluating a claim for disability benefits, ALJs follow a five-step, sequential 

process. Apke v. Saul, 817 F. App’x 252, 255 (7th Cir. 2020). The ALJ must evaluate

the following:

(1) whether the claimant is currently [un]employed; (2) whether the 

claimant has a severe impairment; (3) whether the claimant’s 

impairment meets or equals one of the impairments listed by the 

[Commissioner] ...; (4) whether the claimant can perform her past work; 

and (5) whether the claimant is capable of performing work in the 

national economy.

Fetting v. Kijakazi, 62 F.4th 332, 336 (7th Cir. 2023) (alterations in original) (quoting 

Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000)). See also 20 C.F.R. § 404.1520.

“An affirmative answer leads either to the next step, or, on Steps 3 and 5, to a finding 

that the claimant is disabled. A negative answer at any point, other than Step 3, ends 

the inquiry and leads to a determination that a claimant is not disabled.” Clifford, 

227 F.3d at 868. The claimant bears the burden of proof at steps one through four. 

Fetting, 62 F.4th at 336 (citing Clifford, 227 F.3d at 868). “At step five, the burden 

shifts to the agency to show that ‘there are significant numbers of jobs in the national 

Case: 1:20-cv-03755 Document #: 37 Filed: 01/10/24 Page 3 of 19 PageID #:1481
4

economy for someone with the claimant’s abilities and limitations.’” Id. at 336–37 

(quoting Ruenger v. Kijakazi, 23 F.4th 760, 761 (7th Cir. 2022) (citing 20 C.F.R. §

416.960(c)(2)).

When the Appeals Council denies a plaintiff’s request for review, the ALJ’s 

decision constitutes the final decision of the Commissioner. Gedatus v. Saul, 994 F.3d 

893, 898 (7th Cir. 2021). Section 405(g) of Title 42 limits the court’s review; the 

district court must uphold the decision if the ALJ applied the correct legal standards 

and supported the decision with substantial evidence. 42 U.S.C. § 405(g); Jelinek v. 

Astrue, 662 F.3d 805, 811 (7th Cir. 2011). “An ALJ’s findings are supported by 

substantial evidence if the ALJ identifies supporting evidence in the record and 

builds a logical bridge from that evidence to the conclusion.” Hopgood ex rel. L.G. v. 

Astrue, 578 F.3d 696, 698 (7th Cir. 2009) (citation omitted). Courts have defined 

substantial evidence as “such relevant evidence as a reasonable mind could accept as 

adequate to support a conclusion.” Schaaf v. Astrue, 602 F.3d 869, 874 (7th Cir. 2010). 

A decision denying benefits need not discuss every piece of evidence; remand is 

appropriate, however, when an ALJ fails to provide adequate support for the 

conclusions drawn. Jelinek, 662 F.3d at 811. If conflicting evidence in the record 

would allow reasonable minds to disagree about whether the plaintiff is disabled, the 

ALJ’s decision to deny the application for benefits must be affirmed if the decision is 

adequately supported. Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008). 

The district court must review the entire record, including both evidence that 

supports the ALJ’s conclusions and evidence that detracts from the ALJ’s conclusions, 

but it may not “displace the ALJ’s judgment by reconsidering facts or evidence, or by 

making independent credibility determinations.” Id. “Under the substantial-evidence 

standard, a court looks to an existing administrative record and asks whether it 

contains ‘sufficien[t] evidence’ to support the agency’s factual determinations.” 

Biestek v. Berryhill, ___ U.S. ___, 139 S. Ct. 1148, 1154 (2019). Judicial review is 

limited to the rationales offered by the ALJ. Shauger v. Astrue, 675 F.3d 690, 697 (7th 

Cir. 2012) (citing SEC v. Chenery Corp., 318 U.S. 80, 93–95 (1943)). The ALJ must 

follow the Social Security Administration’s rulings and regulations in making a 

determination. Failure to do so requires reversal unless the error is harmless. See

Prochaska v. Barnhart, 454 F.3d 731, 736–37 (7th Cir. 2006). A reviewing court does 

not “reweigh evidence, resolve conflicts, decide questions of credibility, or substitute 

[its] judgment for that of the Commissioner.” Burmester v. Berryhill, 920 F.3d 507, 

510 (7th Cir. 2019) (quoting Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th 

Cir. 2003)). The district court will uphold a decision so long as the record reasonably 

supports it and the ALJ explains her analysis of the evidence with enough detail and 

clarity to permit meaningful review. Eichstadt v. Astrue, 534 F.3d 663, 665–66 (7th 

Cir. 2008).

Case: 1:20-cv-03755 Document #: 37 Filed: 01/10/24 Page 4 of 19 PageID #:1482
5

Discussion

Plaintiff argues that the ALJ’s decision should be reversed and remanded for 

two reasons. First, plaintiff asserts that the ALJ committed legal error by failing to 

include all of plaintiff’s necessary limitations related to concentration, persistence, 

and pace in plaintiff’s RFC. Second, plaintiff argues that the ALJ’s finding at step 

five of the social security analysis was not supported by substantial evidence. 

A. Concentration, Persistence, and Pace

Plaintiff argues that the ALJ erred in crafting the RFC by failing to 

“incorporate all of the restrictions stemming from” plaintiff’s moderate limitations in 

concentration, persistence, and pace (CPP). [20] 12. According to plaintiff, the ALJ’s 

RFC “defies” the principle established by the Seventh Circuit in O’Connor-Spinner v. 

Astrue that restrictions to simple, repetitive tasks do not account for significant 

problems in concentration, persistence, and pace. [Id.] (citing 627 F.3d 614, 620 (7th 

Cir. 2010)). Plaintiff asserts that O’Connor-Spinner also made it clear that moderate 

limitations in CPP are not satisfied by eliminating jobs with hourly production rates. 

[Id.] 12–13. Citing several subsequent cases, plaintiff argues that courts have 

repeatedly rejected the notion that a hypothetical confining a claimant to “simple, 

routine tasks” and limitations on end-of-day production rates adequately captures 

CPP deficiencies and limitations. [Id.] (citing Yurt v. Colvin, 758 F.3d 850, 858–59 

(7th Cir. 2014); Winsted v. Berryhill, 923 F.3d 472, 476–77 (7th Cir. 2019); Varga v. 

Colvin, 794 F.3d 809, 814 (7th Cir. 2015)).

In response, the Commissioner argues that plaintiff fails to articulate what 

specific limitations it was necessary for the ALJ to include based on the record 

evidence. [24] 6. The Commissioner points to cases in which the Seventh Circuit has 

“repeatedly admonished claimants for this shortcoming.” [Id.] 6–7 (citing Jozefyk v. 

Berryhill, 923 F.3d 492, 498 (7th Cir. 2019); Dudley v. Berryhill, 773 F. App’x 838, 

842 (7th Cir. 2019); Saunders v. Saul, 777 F. App’x 821, 825 (7th Cir. 2019)). The 

Commissioner contends that without identifying additional limitations the ALJ 

should have included in the RFC, plaintiff fails to show prejudicial error. [Id.] 7. 

Furthermore, the Commissioner asserts that plaintiff reads cases like O’ConnorSpinner and Yurt too broadly and ignores subsequent Seventh Circuit case law 

clarifying the issue. [Id.] (citing Urbanek v. Saul, 796 F. App’x 910, 914 (7th Cir. 

2019); Recha v. Saul, 843 F. App’x 1, 4 (7th Cir. 2021)). The Commissioner argues 

that the ALJ thus adequately accounted for plaintiff’s “evidence-based limitations.” 

[Id.] 8. 

There is Seventh Circuit case law supporting both plaintiff’s and the 

Commissioner’s positions. Some cases instruct that in crafting an RFC and posing 

Case: 1:20-cv-03755 Document #: 37 Filed: 01/10/24 Page 5 of 19 PageID #:1483
6

hypotheticals to the VE,6 “the ALJ generally may not rely merely on catch-all terms 

like ‘simple, repetitive tasks’ because there is no basis to conclude that they account 

for problems of concentration, persistence or pace.” Crump v. Saul, 932 F.3d 567, 570 

(7th Cir. 2019) (quoting Winsted v. Berryhill, 923 F.3d 472, 477 (7th Cir. 2019); 

O’Connor-Spinner v. Astrue, 627 F.3d 614, 620 (7th Cir. 2010)). See also Bruno v. 

Saul, 817 F. App’x 238, 242 (7th Cir. 2020) (citing Crump and noting the Seventh 

Circuit has often “frowned at the notion that restriction to simple tasks adequately 

accommodates moderate CPP limitations”). This line of cases observes that “the 

relative difficulty of a specific job assignment does not necessarily correlate with a 

claimant’s ability to stay on task or perform at the speed required by a particular 

workplace.” Martin v. Saul, 950 F.3d 369, 373 (7th Cir. 2020). “A task can be simple, 

but a person with a poor attention span may still become distracted and stop 

working.” Mischler v. Berryhill, 766 F. App’x 369, 376 (7th Cir. 2019). See also Martin, 

950 F.3d at 374 (“[S]omeone with problems concentrating may not be able to complete 

a task consistently over the course of a workday, no matter how simple it may be.”). 

“The law does not require ALJs to use certain words, or to refrain from using others, 

to describe the pace at which a claimant is able to work.” Martin, 950 F.3d at 374. 

But “the ALJ must account for the ‘totality of a claimant’s limitations’ in determining 

the proper RFC.” Id. (citing Moreno v. Berryhill, 882 F.3d 722, 730 (7th Cir. 2018)). 

The Seventh Circuit has also recognized that Crump teaches only that 

restriction to simple, repetitive tasks is “generally” not sufficient and cautions that 

such generic restrictions might not adequately capture a claimant’s limitations. 

Bruno, 817 F. App’x at 242. There is no bright line rule that using the phrase “simple, 

repetitive tasks” in an RFC is automatically cause for remand. Rather, the real 

concern is when “the restriction is used as a one-size-fits-all solution without delving 

into an individualized assessment of the claimant’s specific symptoms.” Id. (citing 

Martin, 950 F.3d at 373–74). In Bruno, for example, the court found there was no 

reversible error because the record contained a specific finding that the claimant 

struggled to concentrate only when the assignment was complex, and a restriction to 

simple tasks was thus appropriate. Id. In Jozefyk, the court noted the ALJ’s RFC was 

sufficient because it “adequately account[ed] for the claimant’s demonstrated 

psychological symptoms.” Jozefyk v. Berryhill, 923 F.3d 492, 497–98 (7th Cir. 2019). 

And in Urbanek, the court acknowledged that “[e]ven generic limitations, such as 

limiting a claimant to simple, repetitive tasks, may properly account for moderate 

limitations in concentration, persistence, and pace, so long as they ‘adequately 

account for the claimant’s demonstrated psychological symptoms’ found in the 

6 The Court notes that case law similarly does not require ALJs to use “specific terms” or “magic words” 

in posing questions and hypotheticals to the VE, but ALJs “must ensure that the VE is ‘apprised fully 

of the claimant’s limitations’ so that the VE can exclude those jobs that the claimant would be unable 

to perform.” Crump, 932 F.3d at 570 (quoting Moreno, 882 F.3d at 730; DeCamp v. Berryhill, 916 F.3d 

671, 675–76 (7th Cir. 2019)). Because plaintiff’s criticism of the ALJ’s accommodations for her 

moderate CPP restrictions is limited to the crafted RFC rather than the questions and hypotheticals 

posed to the VE, the Court need not go into further analysis on this point. 

Case: 1:20-cv-03755 Document #: 37 Filed: 01/10/24 Page 6 of 19 PageID #:1484
7

record.” Urbanek v. Saul, 796 F. App’x 910, 914 (7th Cir. 2019) (quoting Jozefyk, 923 

F.3d at 498).7

At step three, the ALJ analyzed the paragraph B criteria and found that 

plaintiff has a moderate limitation in concentrating, persisting, or maintaining pace. 

[17-1] 599–600. In support of this finding, the ALJ stated that “[t]here is evidence 

that claimant suffers from depression and that the symptoms of her physical 

impairments, including pain and muscle spasms, exacerbate her depression and 

cause her to lose focus.” [Id.] 600. Later in the decision, between steps three and four,

the ALJ summarized the record evidence related to plaintiff’s depression in more 

detail: 

Medical documentation regarding claimant’s depression dates back to 

July 2012. (Exhibit 1F) During treatment for chronic pain at Woodlawn 

Adult Healthcare clinic, it was noted that claimant had depression that 

was not well controlled. (Exhibit 1F) In December 2013, while seeking 

treatment for pain at Cottage View Health Center, claimant reported 

feeling down, depressed, and hopeless nearly every day and nervous, 

anxious, and on edge several days in the previous two weeks. (Exhibit 

4F/15–18) That was the point at which a trial of Cymbalta was 

recommended. In January 2014, claimant reported that her depression 

had improved but that she had stopped using Cymbalta due to sleep 

disturbance and suicidal ideation. (Exhibit 4F/11) 

[Id.] 606 (citing [17-1] 350–60, 442, 446–49). The ALJ concluded that the objective 

record failed to demonstrate a need for limitations beyond those found by the ALJ in 

assessing the paragraph B criteria, including only a moderate limitation in CPP. [Id.] 

The ALJ then turned to a March 26, 2014 consultative examination performed 

by psychologist Robert Prescott, Ph.D., summarizing plaintiff’s reported symptoms 

and the results of the mental status exam. [17-1] 606–07 (citing [17-1] 465–70) The 

ALJ noted Dr. Prescott’s observations that plaintiff was oriented to time, place, and 

person; demonstrated good abstract thinking ability; was able to perform simple 

arithmetic and serial three calculations without error; and demonstrated good 

memory by, for example, recalling six digits forward and five digits reversed, but 

recalling only two of five words after five minutes. [Id.] 607 (citing [17-1] 465–70). 

The ALJ summarized Dr. Prescott’s conclusions that “generally, the claimant’s 

cognitive processes seemed to be intact, although a little less developed than expected 

given her education and work history.” [Id.] (citing [17-1] 465–70). Dr. Prescott’s 

diagnostic impression was major depression and generalized anxiety disorder. [Id.] 

(citing [17-1] 465–70). 

7 See also Pavlicek v. Saul, 994 F.3d 777, 784 (7th Cir. 2021); Pytlewski v. Saul, 791 F. App’x 611, 616 

(7th Cir. 2019); Dudley v. Berryhill, 773 F. App’x 838, 842 (7th Cir. 2019); Saunders v. Saul, 777 F. 

App’x 821, 825 (7th Cir. 2019).

Case: 1:20-cv-03755 Document #: 37 Filed: 01/10/24 Page 7 of 19 PageID #:1485
8

Following this consultative exam with Dr. Prescott, the ALJ noted that 

plaintiff eventually underwent psychiatric treatment through Mercy Medical Center, 

beginning with an initial evaluation conducted by Dr. Wang in November 2014. [17-

1] 607 (citing [17-1] 533). During this exam, Dr. Wang found plaintiff “to have fair 

attention and concentration, normal speech, a full and appropriate affect, and a 

depressed anxious mood.” [Id.] (citing [17-1] 533). Dr. Wang also found that plaintiff’s 

thought process was organized and logical, with no loose associations or flight of 

ideation; that plaintiff demonstrated poor-to-fair insight and judgment; and that 

plaintiff had intact memory and average intellect. [Id.] (citing [17-1] 533). Dr. Wang 

reported a diagnosis of major depressive disorder. [Id.] (citing [17-1] 533). 

Next, the ALJ discussed plaintiff’s treatment throughout 2015, 2016, and 2017, 

during which plaintiff attended periodic follow-up appointments at Mercy Medical 

with Dr. Robert Channon and several counseling appointments with Mark Hatfield. 

[17-1] 607 (citing [17-1] 496–511, 512–48; [17-2] 1036–58, 1198–1312). The ALJ 

observed that notes from Dr. Channon’s February 2015 mental status exam indicated 

that plaintiff had a depressed mood, but that results of the exam were otherwise 

unremarkable. [Id.] (citing [17-1] 524). For example, Dr. Channon’s exam included 

findings that plaintiff’s thought processes were relevant and her associations were 

intact; that plaintiff was alert, oriented, and cooperative; and that she demonstrated 

average attention and concentration. [Id.] (citing [17-1] 524). The ALJ noted that 

subsequent mental status examinations conducted by Dr. Channon up through 2017 

reflected similar findings. [Id.] (citing [17-1] 496–511, 512–48; [17-2] 1198–1312). The 

ALJ also summarized the results of a consultative psychiatric examination that 

plaintiff underwent in September 2017 with Dr. Ana Gil, the findings of which were 

largely unremarkable. [Id.] 607–08 (citing [17-2] 1161–64). 

Upon summarizing the record evidence, the ALJ emphasized “that Dr. 

Prescott’s examination in March 2014 revealed that the claimant demonstrated good 

memory, was able to perform simple arithmetic, and demonstrated good abstract

thinking ability.” [17-1] 608 (citing [17-1] 465–70). The ALJ found it notable that “Dr. 

Prescott concluded that generally, claimant’s cognitive processes seemed to be intact, 

although a little less developed than expected given her education and work history.” 

[Id.] The ALJ also highlighted “the mental status exam findings from Dr. Channon, 

which were unremarkable apart from claimant’s depressed mood,” and found it “of 

note” that “Dr. Channon found claimant to have normal concentration and attention.”

[Id.] (citing [17-1] 524). Finally, the ALJ acknowledged plaintiff’s reported activities, 

including “visiting the theater with friends, previously working part-time as a theater 

director, and now working part-time as a playwriting instructor in the Juvenile 

Justice Center.” [Id.] The ALJ observed that, “[n]otably,” both of these “jobs would 

require a reasonably high degree of mental and physical ability and endurance.” [Id.]

The ALJ also relied on the opinions of the state agency consultants, finding 

them persuasive to a certain extent. [17-1] 609 (citing [17-1] 81, 94, 113, 132). As the 

Case: 1:20-cv-03755 Document #: 37 Filed: 01/10/24 Page 8 of 19 PageID #:1486
9

ALJ noted, the state agency consultants at both the initial and reconsideration levels 

assessed plaintiff’s CPP limitations and found in all areas that plaintiff was either 

moderately limited or not significantly limited. [Id.] 86, 99, 119–20, 138–39. The state 

agency consultants both opined that plaintiff had only “moderate” difficulties in 

maintaining concentration, persistence, or pace. [Id.] 81, 94, 113, 132. The ALJ found 

these broad assessments “generally consistent with claimant’s longitudinal history of 

depression and with” the ALJ’s findings as to the paragraph B criteria. [Id.] 609. At 

the initial level, the state agency consultant concluded that “[t]he medical evidence 

indicate[d] that the claimant’s attention, concentration and persistence would be 

adequate for completing routine repetitive semi-skilled tasks at a consistent pace over 

a regular 40-hour workweek . . . .” [Id.] 86, 99. But as the ALJ pointed out, at the 

reconsideration level, the state agency consultant added that the medical evidence 

indicated “that the claimant’s attention, concentration and persistence would be 

adequate for completing routine repetitive tasks involving at least 1–3 step tasks at 

a consistent pace over a regular 40 hour workweek . . . .” [Id.] 120, 139. Specifically, 

“[b]ased on the claimant’s feelings of depression and complaints of ‘brain fog’ from 

elements of the depression itself, medications and the fibromyalgia cerebral 

associated effects,” the state agency consultant opined that plaintiff should be 

“limited to simple 1–3 step tasks not requiring tight quotas and timelines.” [Id.] 121, 

140. The ALJ found that these proposed limitations were “overly restrictive and not 

warranted by the objective evidence” for the following reasons: 

Of note, Dr. Channon, during mental status examinations, repeatedly 

found claimant to have average concentration and attention. (Exhibit 

11F/13; 16F/4, 7, 17, 23) Furthermore, claimant testified that since the 

alleged date of onset, she has been directing plays and teaching twohour playwriting classes to juveniles, both of which entail significant 

complexity and require a high level of concentration. She also testified 

that she is able to do research on line [sic], and use social media. Her 

function report indicated that she can follow written instructions and 

handle her financial affairs (28E). 

[Id.] 609–10. For these reasons, the ALJ concluded that a limitation to simple 1–3 

step tasks was inconsistent with the reports, mental status exams, and employment 

history. [Id.] 610. However, “[o]ut of an abundance of caution,” the ALJ did include 

“some mental limitations, including no hourly production rate pace, to account for the 

periodic impact of claimant’s depression.” [Id.] 

Based on the objective evidence, plaintiff’s subjective reports, mental 

examination findings, and opinion evidence, the ALJ purported to account for 

plaintiff’s moderate limitation in CPP by limiting plaintiff “to simple, routine, 

repetitive tasks, simple work-related decisions, occasional workplace changes, and no 

hourly production rate pace.” [17-1] 600. The ALJ explained why she did not find the 

state agency consultant’s additional limitations persuasive and plaintiff does not 

Case: 1:20-cv-03755 Document #: 37 Filed: 01/10/24 Page 9 of 19 PageID #:1487
10

argue that the ALJ erred in considering the medical opinion evidence in the record.8

The Court finds that the ALJ’s RFC was supported by substantial evidence.

Substantial evidence “means nothing more than such relevant evidence as a 

reasonable mind might accept as adequate to support a conclusion,” Karr v. Saul, 989 

F.3d 508, 511 (7th Cir. 2021), and for the reasons outlined, the ALJ’s decision built a 

logical bridge from the evidence to the conclusion. Minnick v. Colvin, 775 F.3d 929, 

935 (7th Cir. 2015). “Even if reasonable minds could differ on the weight the ALJ gave 

to” evidence in the record, the court cannot “substitute [its] judgment for that of the 

ALJ’s by reweighing the evidence.” Karr, 989 F.3d at 513 (citing Zoch v. Saul, 981 

F.3d 597, 602 (7th Cir. 2020)). 

The Commissioner is correct that the Seventh Circuit criticizes claimants for 

arguing an RFC is insufficient but failing to suggest additional restrictions. See, e.g., 

Jozefyk, 923 F.3d at 498 (“It is unclear what kinds of work restrictions might address 

Jozefyk’s limitations in concentration, persistence, or pace because he hypothesizes 

none.”); Kuykendoll v. Saul, 801 F. App’x 433, 438 (7th Cir. 2020) (“Notably, 

Kuykendoll posits no relevant limitations in concentration, persistence, or pace that 

the ALJ should have included in his RFC assessment.”). However, the Court does not 

agree that the plaintiff here failed to identify what additional limitations the ALJ 

should have included in the RFC. Specifically, plaintiff argues that the ALJ erred in 

concluding that “further time off beyond normal breaks [was] not supported by the 

evidence” and indicates that remand is required based on the ALJ’s failure to consider 

plaintiff’s need for frequent breaks and the time she would be off task as a result of 

her depression and pain. [20] 13–14 (quoting [17-1] 610). See also [28] 3 (plaintiff’s 

reply brief clarifying her argument that the ALJ “needed to include time-off-task” in 

crafting the RFC limitations). 

Plaintiff asserts that the ALJ failed to acknowledge that plaintiff was only able 

to function in a limited, part-time setting because she was able to take time off beyond 

normal breaks and be absent “well beyond the accepted norm.” [20] 13. In support, 

plaintiff points to her April 2016 hearing testimony that as a part-time theater 

director, she had to take frequent breaks and the assistant director had to take over 

if she needed to leave early. [Id.] (citing [17-1] 44–45).9 From her October 2018 

hearing testimony, plaintiff highlights that her role as a writing class instructor, 

which was only ten hours a week, similarly required her to take frequent breaks and 

8 “An ALJ has ‘final responsibility’ for determining a claimant’s residual functional capacity and 

need not adopt any one doctor’s opinion.” Fanta v. Saul, 848 F. App’x 655, 658 (7th Cir. 2021) (citing 

20 C.F.R. §404.1527(d)(2); Schmidt v. Astrue, 496 F.3d 833, 845 (7th Cir. 2007)). “[A]n ALJ must 

consider the entire record, but the ALJ is not required to rely entirely on a particular physician’s 

opinion or choose between the opinions of any of the claimant’s physicians.” Schmidt, 496 F.3d at 845 

(citing Diaz v. Chater, 55 F.3d 300, 306 n.2 (7th Cir. 1995)).

9 Plaintiff also refers to her testimony that in this role, she “directed from the seats where she was 

able to elevate her legs,” which the Court notes is not very persuasive in a discussion of what additional 

restrictions the ALJ should have included to account for plaintiff’s limitations in the mental area of 

concentration, persistence, and pace. [20] (citing [17-1] 53–65).

Case: 1:20-cv-03755 Document #: 37 Filed: 01/10/24 Page 10 of 19 PageID #:1488
11

that the research she conducted at home “allowed her to stop and start as her focus 

and concentration waxed and waned.” [Id.] (citing [17-1] 627). According to plaintiff, 

the ALJ “needed to consider the time [p]laintiff would be off-task as a result of the 

depression and pain” the ALJ recognized would cause moderate limitations in CPP. 

[Id.] 13–14. Plaintiff argues that the ALJ’s failure to do so requires remand. [Id.] 14. 

Plaintiff does not point to any objective medical evidence or physician opinions 

in the record demonstrating that she requires time off beyond normal breaks and 

absences. Rather, plaintiff only highlights her own testimony and subjective 

symptoms. “Although a claimant can establish the severity of h[er] symptoms by h[er]

own testimony, h[er] subjective complaints need not be accepted insofar as they clash 

with other, objective medical evidence in the record.” Arnold v. Barnhart, 473 F.3d 

816, 823 (7th Cir. 2007) (citation omitted). The ALJ found that plaintiff’s subjective 

symptom allegations were not supported by the objective medical evidence in the 

record, including “largely unremarkable mental status exam findings.” [17-1] 606–

08, 609. As summarized above, the ALJ’s decision included a lengthy summary of 

plaintiff’s medical records as to her depression and concluded that “to the extent that 

claimant’s longitudinal treatment history for depression requires additional mental 

limitations, the objective record fail[ed] to demonstrate the need for limitations 

beyond those” the ALJ included in the RFC. [Id.] 606. The ALJ also found that 

plaintiff’s subjective allegations were “further contradicted by her employment, 

which demonstrate[d] that both her physical and mental capacities are often greater 

than” the limitations imposed by the RFC: “Indeed, claimant testified that she 

provides four hours of classroom instruction on the subject of playwriting to a small 

group of juveniles each week, and spends another six paid hours each week 

performing internet research and finding musical and literary content for her 

students to facilitate their composition of a musical.” [Id.] 608.10

Furthermore, the ALJ did not ignore the testimony that plaintiff emphasizes. 

In her decision, the ALJ acknowledged plaintiff’s testimony at the April 2016 hearing 

that plaintiff was “able to perform her theater job because she [could] set the schedule 

for herself, and if not feeling well, [could] leave the job.” [17-1] 601. The ALJ also

noted plaintiff’s testimony at the October 2018 hearing that “she can pay attention to 

class preparation work for 30–45 minutes before getting distracted” and that “her 

physical conditions sometimes cause her to miss work, and estimated missing 15 days 

since starting teaching a year earlier.” [Id.] 602. And the ALJ acknowledged plaintiff’s 

statements in her function reports that her depression makes it “near impossible to 

keep a work schedule” and “her medications cause drowsiness or dizziness that 

prevent her from keeping a working schedule.” [Id.] 601 (citing [17-1] 251–52). But 

ultimately, “an ALJ need only include limitations that are supported by the medical 

record.” Reynolds v. Kijakazi, 25 F.4th 470, 473 (7th Cir. 2022). “An ALJ has ‘final 

10 The Court notes that although plaintiff’s criticism involves pointing to her subjective complaints and 

testimony, plaintiff did not specifically invoke or provide a fully developed argument on the ALJ’s 

subjective symptom analysis under SSR 16-3p. 

Case: 1:20-cv-03755 Document #: 37 Filed: 01/10/24 Page 11 of 19 PageID #:1489
12

responsibility’ for determining a claimant’s residual functional capacity,” Fanta v. 

Saul, 848 F. App’x 655, 658 (7th Cir. 2021), and even if the plaintiff’s testimony had 

permitted the ALJ to impose greater limitations, “there is nothing that compels 

them.” Delong v. Saul, 844 F. App’x 894, 900 (7th Cir. 2021).

It is true that, as plaintiff points out, the VE testified at the October 2018

hearing that there would not be any work an individual could perform if he or she 

needed to be off task fifteen percent of a work day because of pain. [20] 13, [28] 3 

(citing [17-1] 651). Yet plaintiff does not point to any medical records or opinion 

evidence demonstrating that plaintiff will be off task for fifteen percent or more of a 

work day, or otherwise imposing any additional limitations that the ALJ failed to 

consider. Plaintiff’s reply brief stresses that the ALJ acknowledged that evidence 

demonstrates plaintiff “experiences pain and muscle spasms that ‘exacerbate her 

depression and cause her to lose focus.’” [28] 2 (emphasis in original) (quoting [17-1] 

600). Plaintiff insists that “[w]hen a worker loses focus she is not ‘on-task.’” [Id.] 3. 

But nowhere did the ALJ’s decision or the record evidence indicate that this loss of 

focus translated to plaintiff being off task for fifteen percent or more of the workday. 

Finally, Plaintiff asserts that the ALJ merely stated “in conclusory fashion” 

that “further time off beyond normal breaks is not supported by the evidence.” [20] 

13 (citing [17-1] 610). However, the ALJ made this specific observation in respect to 

her consideration of plaintiff’s pre- and post-hearing memoranda, i.e., the argument 

that the ALJ should have found that plaintiff had a “marked” limitation in activities 

of daily living and in CPP and that plaintiff required an impermissible amount of 

time off work, both in terms of breaks and absences. See [17-1] 610 (citing [17-2] 1010–

14, 1019–21).11 There is nothing in these memoranda that the ALJ did not consider, 

nor is there any evidence compelling the ALJ to include a limitation in the RFC for 

further time off task beyond normal breaks. Nevertheless, any bare assertion by 

plaintiff that this finding was “not supported by the evidence,” [20] 13, is without 

merit. Plaintiff relies only on her own testimony and her argument boils down to a 

disagreement with how the ALJ considered and weighed the evidence in the record. 

As a reviewing court, this court cannot “reweigh evidence, resolve conflicts, decide 

questions of credibility, or substitute [its] judgment for that of the Commissioner.” 

Burmester, 920 F.3d at 510 (quoting Lopez, 336 F.3d at 539).

11 Plaintiff’s pre-hearing memorandum argued that plaintiff has marked limitations in activities of 

daily living and CPP. [17-2] 1014. It also argued that plaintiff is “unable to sustain full-time work . . . 

without an impermissible number and length of rest breaks” and “would be absent from the workplace 

in excess of what is tolerated in a competitive work setting.” [Id.] Plaintiff’s post-hearing brief included 

a footnote stating that her “depressive disorder meets the requirements of Listing 12.04” and 

establishes marked to extreme limitations in CPP and adapting or managing oneself. [17-2] 1020 n.1. 

The post-hearing brief also argued that plaintiff “would be off-task in excess of what is permitted and 

she would also be absent from the work-place in excess of what is tolerated.” [Id.] 1021.

Case: 1:20-cv-03755 Document #: 37 Filed: 01/10/24 Page 12 of 19 PageID #:1490
13

Plaintiff has not demonstrated that the ALJ’s RFC assessment failed to 

adequately account for plaintiff’s moderate limitation in concentration, persistence, 

and pace. Remand is not required on this ground. 

B. The ALJ’s Decision at Step Five

Plaintiff argues that the ALJ’s finding at step five—that there are jobs that 

exist in significant numbers in the national economy that plaintiff can perform—was 

not supported by substantial evidence. [20] 14–15. In support, plaintiff asserts that 

the VE’s numbers upon which the ALJ relied were unreliable and not substantial 

enough to constitute “significant numbers” in the national economy. [Id.] The 

Commissioner argues that the ALJ reasonably relied on the VE’s testimony from the 

October 2018 hearing to support her decision at step five and that neither of plaintiff’s 

arguments withstands scrutiny. [24] 10–12. 

At the October 2018 hearing, the ALJ posed a hypothetical to the VE involving 

an individual with the same age, education, and work history as plaintiff and who 

can perform sedentary work, but is further limited to only occasional ramps and 

stairs; no ladders, ropes, and scaffolds; occasional balancing, stooping, kneeling, 

crouching, and crawling; occasional exposure to hazards; occasional exposure to 

extreme temperatures, humidity, dust, fumes, and pulmonary irritants; and 

restriction to simple, routine, repetitive tasks, simple work-related decisions, and 

occasional changes. [17-1] 650. The VE testified that such an individual could perform 

the positions of sorter, with 14,000 jobs in the national economy; assembler, with 

30,000 jobs; and packer, with 23,000 jobs. [Id.] When the ALJ added a restriction to 

the hypothetical, stating that such an individual could also not meet an hourly 

production rate pace, the VE testified that that individual could still perform the 

sorter, assembler, and packer positions, but the numbers of available jobs in the 

national economy would be reduced by fifty percent. [Id.] As the ALJ crafted an RFC

for plaintiff that included this final restriction, the ALJ relied on the reduced/halved 

numbers: 7,000 sorter jobs, 15,000 assembler jobs, and 11,500 packer jobs. [Id.] 612.

Plaintiff’s attorney questioned the VE at the hearing, which included asking the VE 

questions about the numbers the VE provided. [Id.] 652–53. 

First, plaintiff criticizes the VE’s methodology in calculating the numbers of 

jobs that exist in the national economy for the positions of sorter, assembler, and 

packer.12 [20] 14. See [17-1] 611–12 (ALJ’s opinion), 650 (hearing transcript). Plaintiff 

asserts that according to Chavez v. Berryhill, 895 F.3d 962 (7th Cir. 2018), the “equal 

distribution method” employed by the VE is “highly unreliable” and “cannot provide

substantial evidence upon which the ALJ can deny benefits to a disabled individual.” 

12 Plaintiff’s counsel had no objections about VE Seaver testifying as a vocational expert, [17-1] 648, 

and the VE’s “qualifications are not at issue here.” Chavez, 895 F.3d at 964. But “a claimant need not 

object to an expert’s qualifications in order to object to the expert’s methodology. Brace v. Saul, 970 

F.3d 818, 823 (7th Cir. 2020) (emphases in original) (citing Chavez, 895 F.3d at 964). 

Case: 1:20-cv-03755 Document #: 37 Filed: 01/10/24 Page 13 of 19 PageID #:1491
14

[20] 14–15. In response, the Commissioner asserts that this methodology is not 

erroneous and points to a case from this district observing that “the Seventh Circuit 

has not precluded VEs from using the equal distribution method.” [24] 10 (quoting 

Matthew G.T. v. Saul, No. 19 C 1486, 2020 WL 6940981, at *12 (N.D. Ill. Nov. 25, 

2020)). The Commissioner also argues that after the VE confirmed the methodology 

she used at the hearing, plaintiff failed to “challenge the methodology or ask any 

follow-up questions.” [Id.] at 10–11 (collecting cases). According to the Commissioner, 

plaintiff did not “contest the VE’s job-number estimates” or “cross-examine the VE to 

determine how a different methodology . . . might affect h[er] analysis” and the ALJ 

therefore “had no reason to examine the VE about different methodologies or to seek 

a more detailed explanation.” [Id.] (quoting Keyosha L. v. Saul, No. 19 CV 1843, 2020 

WL 5076685, at *6 (N.D. Ill. Aug. 26, 2020)). Referring to the questions plaintiff’s 

counsel did ask the VE, the Commissioner argues that “a confirmation is not a 

challenge” and that plaintiff “should not prevail on this argument when she had to

opportunity to cross-examine the” VE. [Id.] 11–12. 

The Court first addresses the Commissioner’s contention that plaintiff’s 

argument should be deemed waived because she failed to raise it at the 

administrative hearing. [24] 11. “When no one questions the [VE’s] foundation or 

reasoning, an ALJ is entitled to accept the [VE’s] conclusion . . . .” Fetting, 62 F.4th 

at 337 (alterations in original) (quoting Donahue v. Barnhart, 279 F.3d 441, 446 (7th 

Cir. 2002). “Accordingly, a claimant who does not object to a VE’s testimony during 

the administrative hearing forfeits those objections.” Id. (citing Brown v. Colvin, 845 

F.3d 247, 254 (7th Cir. 2016)). Objections a claimant does make at the hearing “must 

be specific; to avoid forfeiture, a claimant must do more than make a general objection 

or vaguely ask the VE about his methodology.” Id. at 338. The plaintiff’s questioning 

here may fall into the latter category. See [17-1] 651–53 (making no formal objection 

and only vaguely questioning the VE about her methods). But unlike the claimant in 

Fetting, whose written filings did not challenge the VE’s methodology and who failed 

to file post-hearing objections, plaintiff did file a post-hearing memorandum, which 

specifically raised concerns with the VE’s methodology. [17-2] 1021. The Court thus 

continues to the merits of plaintiff’s argument. 

“In reviewing a VE’s testimony, [courts] ask whether substantial evidence 

supports the ALJ’s reliance on that testimony, including whether the VE used a 

reliable methodology.” Hohman v. Kijakazi, 72 F.4th 248, 252 (7th Cir. 2023) (citing 

Chavez, 895 F.3d at 968). See also Ruenger v. Kijakazi, 23 F.4th 760, 763 (7th Cir. 

2022) (“In the context of job-number estimates, substantial evidence requires the ALJ 

to ensure that the vocational expert’s estimate is the product of a reliable 

methodology.”). “A methodology is reliable when it is based on ‘well-accepted’ sources 

and its steps are ‘cogently and thoroughly’ explained.” Hohman, 72 F.4th at 253 

(quoting Biestek, 139 S. Ct. at 1155). In other words, the VE’s “explanation of the 

methodology that [s]he used to produce h[er] estimate must be ‘reasoned and 

principled’ enough to instill some confidence that the estimate was not ‘conjured out 

Case: 1:20-cv-03755 Document #: 37 Filed: 01/10/24 Page 14 of 19 PageID #:1492
15

of whole cloth.’” Case v. Kijakazi, 2023 WL 4882880, at *3 (7th Cir. Aug. 1, 2023)

(quoting Ruenger, 23 F.4th at 763; Donahue, 279 F.3d at 446). “A ‘precise count is not 

necessary,’ but the VE’s testimony ‘must be supported with evidence sufficient to 

provide some modicum of confidence in its reliability.’” Fetting, 62 F.4th at 339 

(quoting Brace v. Saul, 970 F.3d 818, 822 (7th Cir. 2020)). 

VEs regularly “refer to job categories as listed in the Dictionary of Occupational 

Titles [(DOT)], a publication that regulations allow the Social Security 

Administration to consider.” Bruno, 817 F. App’x at 243. See also Sharol W. v. 

O’Malley, No. 21 C 3484, 2023 WL 9000493, at *3 (N.D. Ill. Dec. 28, 2023) (citing 20 

C.F.R. § 416.966(d)(1)) (“The SSA authorizes itself to ‘take administrative notice of 

reliable job information’ from the Dictionary of Occupational Titles (‘DOT’) and other 

published sources.”). The Chavez court, however, observed the significant limitations 

of the DOT and stated that “[t]o determine the number of jobs, a VE must consult 

another resource.” 895 F.3d at 965. One of these other resources that VEs commonly 

“use[] is the Department of Labor’s compilation of Occupational Employment 

Statistics,” which “does not use the DOT job grouping system, but instead relies upon 

another classification system, the Standard Occupational Classification (SOC).” Id.

Chavez, and cases following that decision, have explained that “there is a mismatch 

between the DOT codes and Occupational Employment Survey (OES) data because 

they use different classification schemes.” 13 Case, 2023 WL 4882880, at *3 (citing 

Chavez, 895 F.3d at 965–66). Accordingly, VEs “must employ some analytical method 

to match DOT job categories with OES data on job prevalence.” Id. In other words, 

“the VE’s task is to estimate the portion of jobs in an SOC category that corresponds 

to the particular DOT occupation the claimant can perform.” Sok v. Kijakazi, 2022 

WL 17413558, at *1 (7th Cir. Dec. 5, 2022).

Relying on Chavez, plaintiff argues that the VE in this case improperly used 

the “equal distribution method,” which plaintiff asserts the Seventh Circuit has found 

“highly unreliable.” [20] 14–15. At the October 2018 hearing, the ALJ asked the VE 

if the job positions and corresponding numbers in the national economy she provided 

were “representative” and if the VE’s testimony was “consistent with the Dictionary 

of Occupational Titles[.]” [17-1] 650. The VE answered “yes” to both. [Id.] In relevant 

part, plaintiff’s counsel and the VE then engaged in the following colloquy: 

Q. The numbers that you’ve given: were those for the specific jobs? 

Or for the . . . was it the SCO [sic] or OEC? 

A. Yes. So, yeah, the numbers were for the occupational group . . . 

which is made up of several different DOTs. So, the DOTs were 

an example of jobs that were in that occupational group. 

13 See also Fetting, 62 F.4th at 337; Ruenger, 23 F.4th at 762; Bruno, 817 F. App’x at 243; Sharol W., 

2023 WL 9000493, at *3; James M. v. Kijakazi, No. 20 CV 2082, 2023 WL 3652862, at *6 (N.D. Ill. May 

25, 2023). 

Case: 1:20-cv-03755 Document #: 37 Filed: 01/10/24 Page 15 of 19 PageID #:1493
16

Q. Okay. So, were you using, I think they call it the method of, 

basically just dividing into that number by the number of jobs in 

the group? 

A. Yes. 

[Id.] 652–53. In her decision, the ALJ noted that the VE testified that the information 

the VE provided and that the ALJ incorporated in the decision was “consistent with 

the information in the Dictionary of Occupational Titles, and pursuant to SSR 00-4p,” 

the ALJ found they were consistent. [Id.] 612. The ALJ’s decision did not specifically 

address the concerns with the VE’s testimony that plaintiff raised in her post-hearing 

memorandum. See [17-2] 1021. The Appeals Council’s decision acknowledged this 

argument, but provided no substantive discussion before concluding that this 

contention was “without merit.” [17-1] 582. 

Although the Seventh Circuit has expressed “many concerns about the 

method’s reliability,” the court has also clarified that it has “never categorically 

barred VEs from using that method in social security disability hearings.” Hohman, 

72 F.4th at 254. See also Coyier v. Saul, 860 F. App’x 426, 428 (7th Cir. 2020) (noting 

“that Chavez did not enjoin the use of the equal-distribution method”); Chavez, 895 

F.3d at 970 (“Nor is it our place to enjoin use of the equal distribution method.”). “It 

is not, by itself, reversible error for an ALJ to rely on the equal distribution method—

in its purest form or modified to reflect a VE’s experience—to make a step-five jobnumber determination.” Hohman, 72 F.4th at 254. See also Leisgang v. Kijakazi, 72 

F.4th 216, 220 (7th Cir. 2023) (acknowledging that the court has “sharply criticized 

the equal distribution method many times before,” but finding that “nothing about 

the VE’s testimony in this case indicated, by itself, that the ALJ could not put some 

‘modicum of confidence’ in the VE’s job-number estimates”). 

What is required, however, “is more than what supported the ALJ’s decision 

here.” Chavez, 895 F.3d at 970. Despite using the oft-questioned equal distribution 

method, the VE provided no explanation or further demonstration of why her 

methodology was reliable. There is no indication that the VE drew on her knowledge 

or experience (and if so, how). With next to no explanation at all, the Court certainly 

cannot find that the VE explained her methodology “cogently and thoroughly.” 

Fetting, 62 F.4th at 339 (quoting Ruenger, 23 F.4th at 763). And although the burden 

is on the ALJ at step five of the social security analysis, the ALJ did not ask any 

questions further probing into the VE’s methodology. The ALJ’s decision ignored the 

issue entirely. The circumstances in which other courts found a VE’s methodology 

reliable are not present here. See, e.g., Case, 2023 WL 4882880, at *3 (“When 

questioned, the vocational expert explained that his estimates were not only the 

product of the [SkillTRAN] software, but also of his experience providing job 

counseling, his prior research, and his observations of the jobs in question.”); 

Case: 1:20-cv-03755 Document #: 37 Filed: 01/10/24 Page 16 of 19 PageID #:1494
17

Hohman, 72 F.4th 253 (finding it sufficient that the VE based his estimates on his 

“‘knowledge of labor market conditions and occupational trends, gleaned from 

reviewing relevant data sources [and] placing workers in jobs’ over the course of his 

25-year career”); Fetting, 62 F.4th at 339 (finding that the “VE’s testimony was 

sufficiently cogent and thorough for the ALJ to rely on it by explaining “that he used 

the OES numbers and his thirty years of job placement experience to calculate his 

estimates”); Sok, 2022 WL 17413558, at *2 (finding that the VE’s “explanation of his 

process—first, referencing information found in the DOT and SOC, and second, 

drawing on his knowledge of the labor market—was sufficient for the agency to meet 

its modest evidentiary burden”); Matthew G.T., 2020 WL 6940981, at *12 (“Unlike in 

Chavez, the VE in this case provided a detailed explanation for her job number 

estimates, which she laid out in a post-hearing report.”). Compare with Ruenger, 23 

F.4th at 764 (“Like the expert in Chavez, the expert here failed to justify her choice 

by, for example, drawing on her past experiences with the method or knowledge of 

job markets.”); James M. v. Kijakazi, No. 20 CV 2082, 2023 WL 3652862, at *6 (N.D. 

Ill. May 25, 2023) (cleaned up) (“Here, however, the VE did not explicitly tie her

background to her estimate of nationwide job numbers, nor did she give a reasoned 

explanation of how she moved from the broader SOC codes and job numbers to the 

more specific DOT titles (and associated job numbers) that plaintiff could perform.”)

When the ALJ’s decision at step five is not supported by substantial evidence, 

remand for further administrative proceedings is warranted and “a new step-five 

hearing is needed to explore the evidentiary gap in this case.” Ruenger, 23 F.4th 764. 

At this hearing, the ALJ may “spend time inquiring into the expert’s methodology” 

and the VE “may be able to expand on her testimony or make some other showing 

that significant jobs exist for” plaintiff. Id.

As a final note, plaintiff also argues that the numbers upon which the ALJ 

relied were not substantial enough to constitute “significant numbers” in the national 

economy. [20] 15. Relying solely on a case from the Northern District of Indiana, 

plaintiff argues that “the total number of jobs relied on by the ALJ represents only 

0.0022% of jobs” because the total number of full-time jobs in the U.S. in February 

2019 was 150,606,000.00 and the ALJ relied on 35,000 jobs. [Id.] (citing Sally S. v. 

Berryhill, No. 18-cv-460, 2019 WL 3335033 (N.D. Ind. July 23, 2019)). See [17-1] 612, 

650 (7,000 sorter plus 15,000 assembler plus 11,500 packer jobs totaling 33,500). 

“Plaintiff contends that there is no context in which 35,000 [sic] jobs in the entire

United States represents a significant number of jobs upon which benefits should be 

denied to a disabled individual.” [20] 15. 

As the Commissioner points out, courts in this district have found Sally S.

unpersuasive and declined to follow it. [24] 12 (citing Marko L. v. Saul, No. 16 C 9723, 

2021 WL 843427, at *7 (N.D. Ill. Mar. 5, 2021)) (“Seventh Circuit precedent casts 

doubt on the conclusion in that case.”). See Misty H. v. Kijakazi, 2022 WL 4182390, 

at *7 (N.D. Ill. Sept. 13, 2022) (noting that the court in Sally S. “did not consult a 

Case: 1:20-cv-03755 Document #: 37 Filed: 01/10/24 Page 17 of 19 PageID #:1495
18

single case on the subject” and “[a]s such, the holding has little or no authoritative 

value”); Altaf J. v. Kijakazi, No. 20 CV 6010, 2022 WL 4534691, at *6 (N.D. Ill. Sept. 

28, 2022) (rejecting this “minority position proposed by Claimant and supported by a 

single citation to a non-precedential case from another district”); Tommie S. v. 

Kijakazi, No. 19 C 8249 , 2021 WL 5232728, at *5 (N.D. Ill. Nov. 10, 2021) (stating 

that “the Sally S. case has been questioned in this district and the Court chooses not 

to follow it here”); Douglas G. v. Kijakazi, No. 19 CV 7033, 2021 WL 3849637, at *5 

(N.D. Ill. Aug. 27, 2021) (citing Chavez and Biestek in noting that “the governing 

standard is not whether a jobs number falls above or below a set numerical value, but 

whether substantial evidence supports the VE’s testimony that significant jobs 

exist”). See also Milhem v. Kijakazi, 52 F.4th 688, 695 (7th Cir. 2022) (noting that the 

Sally S. “decision is not binding on this court and does not account for” the Seventh 

Circuit’s case law); Kuhn v. Kijakazi, No. 22-1389, 2022 WL 17546947, at *3 n.1 (7th 

Cir. 2022) (“For the same reasons discussed in Milhem, 52 F.4th at 695, we do not 

rely on Sally S.”). And as one court in this district pointed out, “the judge who 

authored” Sally S. has since “disavowed it.” Misty H., 2022 WL 4182390, at *7 (citing 

Jennifer K. v. Kijakazi, No. 21CV68, 2022 WL 766164, at *4 (N.D. Ind. Mar. 14, 2022) 

(“Sally S. was decided in 2019 and, quite frankly, has proven unworkable in the 

ensuing years. Thus, later decisions from this Court have retreated from the Sally S.

holding.”). 

As the Court is already remanding the case for further proceedings as to the 

ALJ’s decision at step five, it will not further address plaintiff’s argument on this 

point.14

14 However, the Court will reiterate that it is the ALJ’s burden at step five and that on remand, the 

ALJ should clarify her position and explain why the number of national jobs she adopts based on the 

VE’s testimony is sufficient. See Milhem, 52 F.4th at 696 (“In determining whether there is a 

‘significant’ number of jobs in the national economy, the regulatory scheme gives the ALJ discretion 

to decide, using substantial evidence, when a number of jobs qualifies as significant.”). 

Case: 1:20-cv-03755 Document #: 37 Filed: 01/10/24 Page 18 of 19 PageID #:1496
19

Conclusion

For the forgoing reasons, plaintiff’s request to remand the SSA’s decision [20] 

is granted, defendant’s motion for summary judgment [24] is denied. In accordance 

with sentence four of 42 U.S.C. § 405(g), this case is remanded for further proceedings 

consistent with this order.

_____________________________________

HEATHER K. McSHAIN

United States Magistrate Judge

DATE: January 10, 2024

Case: 1:20-cv-03755 Document #: 37 Filed: 01/10/24 Page 19 of 19 PageID #:1497