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Keener v. Astrue

March 10, 2008


The opinion of the court was delivered by: Reagan, District Judge


Plaintiff Michael Keener, pursuant to 42 U.S.C. § 405(g), seeks review of the administrative decision denying him Disability Insurance Benefits ("DIB") pursuant to 42 U.S.C. § 423, and Supplemental Security Income ("SSI") pursuant to 42 U.S.C. § 1382. (Doc. 2). The administrative record ("R") and the parties' briefs*fn2 are before the Court. (Docs. 12, 17, 20 and 23).

Plaintiff formally alleged onset of disability as of February 15, 2000. (R 210). Initially, in June 2004, a partially favorable decision was issued by ALJ Anne C. Pritchett, finding plaintiff disabled as of June 27, 2002. (R. 177-184). Because plaintiff was only insured for DIB through March 31, 2002, he was only granted SSI payments. The Appeals Council remanded the matter, and in March 2006 another partially favorable decision was issued. (R. 21-32; 191-193). The second time around, ALJ Pritchett found plaintiff disabled effective August 22, 2005, a much later date, which also means there has been an overpayment.

Issues Presented

Plaintiff Keener argues:

1. The agency failed to sustain the burden of establishing that there is other work in the national economy that plaintiff could perform.

A. The ALJ failed to inquire of the vocational expert in the second hearing whether his testimony corresponds with the Dictionary of Occupational Titles.

B. The ALJ failed to pose a hypothetical to the vocational expert which incorporated all of plaintiff's limitations supported by medical and other evidence.

2. The ALJ erred in failing to recontact plaintiff's treating physicians for additional evidence or clarification on the issues of onset date and severity of symptoms.

3. The ALJ erred by failing to follow the requirements of SSR 83-20 in determining plaintiff's disability onset date.

4. The ALJ erred in discounting plaintiff's subjective complaints due to the lack of objective medical evidence of his impairments when the agency had refused to order testing when requested by plaintiff.

Plaintiff's arguments are aimed at undermining the ALJ's residual functional capacity assessment and ultimate conclusion that plaintiff is not disabled.

Applicable Legal Standards

To qualify for DIB or SSI, a claimant must be "disabled." "Disabled" is defined 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 12 months." 42 U.S.C. §§ 423(d)(1)(A) and 1382c(a)(3)(A). A "physical or mental impairment" is an impairment resulting from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques. 42 U.S.C. §§ 423(d)(3) and 1382c(a)(3)(C).

Social Security regulations set forth a sequential five-step inquiry to determine whether a claimant is disabled. In essence, it must be determined (1) whether the claimant is presently employed; (2) whether the claimant has an impairment or combination of impairments that is severe; (3) whether the impairments meet or equal one of the listed impairments acknowledged to be conclusively disabling; (4) whether the claimant can perform past relevant work; and (5) whether the claimant is capable of performing any work within the economy, given his or her age, education and work experience. Schroeter v. Sullivan, 977 F.2d 391, 393 (7th Cir. 1992); 20 C.F.R. §§ 416.920(b-f) and 404.1520(b-f).

"The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive. . . ." 42 U.S.C. § 405(g). Thus, the Court must determine not whether plaintiff was, in fact, disabled, but whether the ALJ's findings were supported by substantial evidence and, of course, whether any errors of law were made. See Books v. Chater, 91 F.3d 972, 977-978 (7th Cir. 1996) (citing Diaz v. Chater, 55 F.3d 300, 306 (7th Cir.1995)). The Supreme Court has defined substantial evidence as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."Richardson v. Perales, 402 U.S. 389, 401 (1971).

In reviewing for "substantial evidence" the entire administrative record is taken into consideration, but this Court does not reweigh evidence, resolve conflicts, decide questions of credibility, or substitute its own judgment for that of the ALJ. Brewer v. Chater, 103 F.3d 1384, 1390 (7th Cir. 1997). Furthermore, an ALJ may not disregard evidence when there is no contradictory evidence. Sample v. Shalala, 999 F.2d 1138, 1143 (7th Cir. 1993).

The Agency Decisions

ALJ Pritchett's June 2004 decision found that plaintiff Keener was disabled as of June 27, 2002, which was well after the February 15, 2000, alleged onset date, and March 31, 2002, when plaintiff was last insured for DIB. (R. 177-184). Plaintiff was found to have the following severe impairments: hand tremors, deficits from a gunshot wound to the left patella, shortness of breath, a reading disorder, a disorder of written expression, alcohol abuse in partial remission, and degenerative disc and joint disease. (R. 183). Plaintiff underwent a consultative physical examination by Dr. Stanley Rabinowitz, M.D., and a consultative intellectual assessment by Dr. Michael Stempniak, Ph.D., on June 27, 2002. (R. 179-180, 288-293). The ALJ's decision noted that, prior to June 27, 2002, the record did not contain objective medical evidence to support any other conclusion than that plaintiff had the residual functional capacity for work (with no exertional limits). It was the additional physical impairments established on June 27, 2002, combined with the exclusion of jobs that require reading, writing or mathematics, that rendered plaintiff disabled. (R. 182). The ALJ concluded that, as of June 27, 2002, plaintiff could not perform any work due to the progression of plaintiff's tremors to a point that they moderately interfered with his ability to sustain a steady gaze. (R. 184). The ALJ cited the testimony of vocational expert Dr. John Grenfell that unskilled, sedentary jobs require some reading and simple record-keeping skills or sustaining a steady gaze. (R. 182).

In May 2005, the Appeals Council vacated and remanded ALJ Pritchett's June 2004, decision. (R. 191-193). The Council observed an apparent inconsistency between the blanket finding that plaintiff had numerous "severe" impairments, and the apparent finding and evidence indicating there were no exertional or work-related limitations during the period between February 15, 2000, and June 27, 2002. (R. 191). More important, the Council questioned how the June 27, 2002, evaluations could form the basis for the reduced sedentary residual functional capacity. (R. 191-192). Why some or all of plaintiff's limitations were not found to exist prior to June 27, 2002, was also questioned. (R. 192). The Council indicated that further evaluation and development of the record were required, specifically including: (1) the gathering of additional evidence of medically determinable impairments; (2) further consideration and elucidation of plaintiff's maximum residual functional capacity; (3) utilizing a qualified medical expert to clarify impairments and, if necessary, determine the onset date; and (4) if warranted by the expanded record, obtaining additional evidence from a vocational expert, utilizing the prescribed methodology and standards.

(R. 192).

On remand, ALJ Pritchett abandoned the June 27, 2002, onset date and found that disability did not occur until August 22, 2005. (R. 21-32). Prior to August 22, 2005, plaintiff was found to have the following severe impairments: reading disorder, disorder of written expression, chronic obstructive pulmonary disease (COPD), and alcohol abuse and dependence. (R. 23 and 30). As of August 22, 2005, two additional severe impairments were added: essential tremors and neck pain with a limited range of motion. (R. 26, 28 and 30-31). August 22, 2005, was the date that Dr. Raymond Leung, M.D., issued a consultative physical evaluation (R. 411-419), and Dr. Harry Deppe, Ph.D., issued a psychological consultative evaluation (R. 420-423).

Although the ALJ's 2006 decision noted that plaintiff had "mild" tremors in June 2002, they were characterized as "moderate" on August 22, 2005, and evidence prior to that date did not support the conclusion the tremors had more than a minimal effect on plaintiff's ability to perform basic work activities. (R. 23). As of August 22, 2005, plaintiff had mild but constant head tremors that moderately interfered with his ability to sustain a steady gaze. (R. 28). A similar time lag was noted between when plaintiff first exhibited neck pain and minimal osteoarthritic changes in 1999, and August 22, 2005, when plaintiff's range of motion and subjective complaints were deemed a severe impairment. (R. 23-24).

ALJ Pritchett's 2006 decision noted that, although plaintiff alleged disability since February 15, 2000, he did not seek medical treatment until January 8, 2003, when he sought a physical for purposes of obtaining disability benefits. (R. 25). The ALJ highlighted that Dr. Robbins's report reflected that plaintiff had not seen a doctor in many years and that plaintiff had no medical history to discuss. (R. 25 and 372-373). The ALJ surveyed the subjective and objective evidence and, with the aid of medical expert Dr. William Houser, found there was no evidence of qualifying disability before August 22, 2005. (R. 23-28).

At the time of the second decision, plaintiff was 50 years old and "closely approaching advanced age; for the period prior to August 22, 2005, plaintiff was "younger." (R. 29).

Plaintiff only completed the 11th grade, taking special education classes, and he had a vocational history of semi-skilled work with no transferable skills. (R. 29). From a physical standpoint, prior to August 22, 2005, plaintiff was found to be capable of lifting and carrying 20 pounds occasionally and 10 pounds frequently, standing and/or walking and sitting for up to six hours out of an eight-hour workday. (R. 28). Only occasional exposure to temperature extremes and respiratory irritants (dust, fumes and gases) was prescribed, and plaintiff was further limited to unskilled work where reading, writing and mathematics were not required. (R. 28). Based on those factors, plaintiff was found to have the residual functional capacity for a significant range of light work. (R. 28 and 31).

However, that vocational base was further eroded by non-exertional limitations. (R. 29). From a psychological standpoint, the ALJ concluded plaintiff had only mild limitation upon activities of daily living and maintaining social functioning, and moderate limitation on his ability to maintain concentration, persistence or pace. (R. 29).

Relative to the period prior to August 22, 2005, the ALJ cited the testimony of vocational expert Dr. Thomas Upton that the following jobs remained available to a person with the aforementioned profile: kitchen helper (5,100 light jobs in Ill.); machine tender (1,600 light jobs and 1,700 sedentary jobs in Ill.); laundry worker (2,000 light jobs and 1,900 sedentary jobs in Ill.); and assembler (37,900 light jobs and 8,000 sedentary jobs in Ill.). (R. 30). The ALJ asserted that the vocational expert had stated that there were no conflicts with the Dictionary of Occupational Titles. (R. 30). For the period after August 22, 2005, the ALJ relied upon Dr. Upton's testimony that the addition of a constant mild tremor that moderately interfered with the ability to sustain a steady gaze would preclude the aforementioned jobs. (R. 30).

On September 11, 2006, the Appeals Council declined plaintiff's request for review, thereby making ALJ Pritchett's March 8, 2006, decision the ...

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