The opinion of the court was delivered by: Joe Billy McDADE United States District Judge
This matter is before the Court on Plaintiff's Motion for Summary Reversal and Defendant's Motion for Summary Affirmance. (Docs. 14 & 17). Plaintiff seeks judicial review under 28 U.S.C. § 405(g) of the Commissioner's decision that she is not disabled and thus not entitled to Social Security benefits. Plaintiff has also filed a Response to Defendant's Motion for Summary Affirmance. (Doc. 19). For the reasons stated below, Plaintiff's Motion for Summary Reversal is denied, and Defendant's Motion for Summary Affirmance is granted.
To be entitled to disability benefits under the Social Security Act, a claimant must prove that she is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment." 42 U.S.C. § 423(d)(1)(A). To determine if the claimant is unable to engage in any substantial gainful activity, the Commissioner of Social Security engages in a factual determination. See McNeil v. Califano, 614 F.2d 142, 145 (7th Cir. 1980). The factual determination is made by using a five-step sequential analysis. 20 C.F.R. § 404.1520; see also Maggard v. Apfel, 167 F.3d 376, 378 (7th Cir. 1999).
In the first step, a threshold determination is made to determine whether the claimant is presently involved in a substantially gainful activity. 20 C.F.R. § 404.1520(b). If the claimant is not under such employment, the Commissioner of Social Security proceeds to the next step. At the second step, the Commissioner evaluates the severity and duration of the impairment. 20 C.F.R. § 404.1520(c). If the claimant has an impairment that significantly limits her physical or mental ability to do basic work activities, the Commissioner will proceed to the next step. At the third step, the Commissioner compares the claimant's impairments to a list of impairments considered severe enough to preclude any gainful work; and, if the elements on the list are met or equaled, he declares the claimant eligible for benefits. 20 C.F.R. § 404.1520(d).
If the claimant does not qualify under one of the listed impairments at Step Three, the Commissioner proceeds to the fourth and fifth steps. At the fourth step, the claimant's Residual Functional Capacity ("RFC") is evaluated to determine whether the claimant can pursue her past work. 20 C.F.R. § 404.1520(e)-(f). If she cannot, then, at Step Five, the Commissioner evaluates the claimant's ability to perform other work available in the economy. 20 C.F.R. § 404.1520(g).
Once a case reaches a federal district court, the court's review is governed by 42 U.S.C. 405(g), which provides, in relevant part, "The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." Substantial evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion." Maggard, 167 F.3d at 379 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). The claimant has the burden to prove disability through Step Four of the analysis, i.e., she must demonstrate an impairment that is of sufficient severity to preclude her from pursuing her past work. McNeil, 614 F.2d at 145. However, once the claimant shows an inability to perform her past work, the burden shifts to the Commissioner, at Step Five, to show the claimant is able to engage in some other type of substantial gainful employment. Id.
A court's function on review is not to try the case de novo or to supplant the decision of the Administrative Law Judge ("ALJ") with the Court's own assessment of the evidence. See Pugh v. Bowen, 870 F.2d 1271, 1274 (7th Cir. 1989). A court must only determine whether the ALJ's findings were supported by substantial evidence and "may not decide the facts anew, reweigh the evidence, or substitute [its] own judgment" for that of the ALJ. See Delgado v. Bowen, 782 F.2d 79, 82 (7th Cir. 1986). Furthermore, in determining whether the ALJ's findings are supported by substantial evidence, credibility determinations made by the ALJ will not be disturbed "so long as they find some support in the record and are not patently wrong." See Herron v. Shalala, 19 F.3d 329, 335 (7th Cir. 1994).
However, the ALJ must articulate reasons for rejecting or accepting entire lines of evidence. Godbey v. Apfel, 238 F.3d 803, 807-08 (7th Cir. 2000). The ALJ is required to "sufficiently articulate his assessment of the evidence to 'assure us that [he] considered the important evidence... and to enable us to trace the path of [his] reasoning.'" Carlson v. Shalala, 999 F.2d 180, 181 (7th Cir. 1993) (quoting Stephens v. Heckler, 766 F.2d 284, 287 (7th Cir. 1985)).
Plaintiff, who was born in 1984, applied for children's disability benefits in October 1994; her application was denied. In February 2005, following a hearing, Plaintiff was found to be disabled, and received benefits until she turned 18. The Social Security Administration at that time reviewed her case, and found that her disability ended in March 2003; after a hearing following Plaintiff's request for reconsideration of that decision, the agency again determined that she was not disabled, which Plaintiff did not appeal. That decision became final in 2004.
In May 2005, Plaintiff again filed for disability benefits, alleging that she became disabled in October 1994, which claim was denied initially and upon reconsideration. A hearing before ALJ Alice Jordan was held on this claim in April 2008. The ALJ issued her decision in June 2008, finding that Plaintiff was not disabled because she could perform medium level unskilled jobs with certain limitations, and that significant numbers of such jobs existed in the national economy. In addition, in this decision, the ALJ declined to reopen the earlier decision that Plaintiff's disability had ended in March 2003. The Appeals Council denied Plaintiff's request for review, and the ALJ's decision is thus the final decision of the Commissioner.
II. Relevant Medical History
On January 15, 2003, Plaintiff saw Dr. Steven Mayhew, a psychologist, who performed a psychodiagnostic disability assessment. (Tr. 178-80). He assessed her IQ at 82 for verbal, 97 for performance, and 88 for full scale. Dr. Mayhew found Plaintiff to be functional in the basic activities of daily living, with no apparent deficits or limitations. He did not review her medical history, and deferred her physical diagnosis to Plaintiff's medical doctors. He found that her "capacity to understand, retain, and follow work-related instructions and procedures [was] mildly impaired with significant functional limitations based upon her medical history." In addition, Dr. Mayhew opined that Plaintiff's capacity to interact appropriately was unimpaired, though her "capacity to tolerate stress and pressure of simple, unskilled work" and to respond appropriately was "estimated to be variable and in correlation to her medical status."
On January 22, 2003, Plaintiff underwent a pulmonary function analysis for disability evaluation purposes. (Tr. 181-85). She also underwent a state agency mental evaluation by Dr. John Tedesco on February 15, 2003. (Tr. 186-204). Dr. Tedesco found that Plaintiff had mild restrictions in her activities of daily living and mild difficulties in maintaining social functioning, moderate difficulties in maintaining concentration, persistence, or pace; and no episodes of decompensation. In addition, he found either no significant limitations or only moderate limitations on Plaintiff's abilities relating to understanding and memory, sustained concentration and persistence, social interaction, and adaptation. Dr. Tedesco noted that Plaintiff's school absenteeism "appears to be motivational rather than psychological," and opined that she was "competent for competitive employment, independent living, homemaking skills, recreation and leisure activities, transportation, and pursuing age-appropriate relationships." He found that there was no evidence to suggest a marked functional mental impairment on Plaintiff's ability to work.
Dr. Chrystalla Daly performed a Physical RFC Assessment on March 18, 2003. (Tr. 205-10). In this assessment, Dr. Daly found no exertional, postural, manipulative, or visual limitations. In addition, she found that Plaintiff should avoid concentrated exposure to extreme cold, fumes, odors, dusts, and gases, but that Plaintiff had no limitation regarding extreme heat, wetness, humidity, noise, vibration, or hazards. Dr. Daly stated that Plaintiff's asthma did not limit her functioning, and that though Plaintiff's symptoms were attributable to a medically determinable impairment, the severity or duration was disproportionate to the expected severity or duration.
Dr. Jackie Kramer has submitted progress notes for Plaintiff between 1998 and 2003. (Tr. 212-222). The majority of these notes simply record requests for refills of Plaintiff's inhaler or other medications. (Tr. 212, 215-16). On March 18, 2003, Plaintiff reported to Dr. Kramer's office with cold symptoms. Dr. Kramer observed that she was "really unsure how much medicine that [Plaintiff is] taking," as her last refill was in December 2002. Plaintiff said that she had been taking leftover pills, but Dr. Kramer explained that if she were taking them, she would eventually run out and need a refill; Dr. Kramer "firmly encouraged her once again to go back on her medications routinely," but noted that "Tina voices understanding, however I doubt that she agrees." (Tr. 215). On March 28, 2003, Plaintiff complained of headaches for the last three days, which had caused vomiting the day before, and Dr. Kramer prescribed pain medication. (Tr. 213-14).
On April 24, 2003, Plaintiff came to Dr. Kramer's office because she had completely used up the inhaler refill that she had received on April 17, 2003; Dr. Kramer gave her a refill. Also, Plaintiff was short of breath and had itchy eyes. Dr. Kramer lectured Plaintiff about her responsibility to take her medications, and noted that "I know that she could feel better if she stayed on her meds, but she has not been faithful about doing that at all." (Tr. 212, 215). On June 24, 2003, Plaintiff reported to Dr. Kramer's office that she had been taking her medications for the past two weeks, and was feeling better and sleeping at night. (Tr. 212).
In October 2003, Physical and Mental RFC Assessments were performed by L.M. Hudspeth, who noted no physical limitations except the environmental limitation of avoiding fumes, odors, dusts, gases, poor ventilation, etc. (Tr. 227-48). Hudspeth also noted that Plaintiff had experienced four asthma attacks in the last year. Plaintiff had a non-severe psychiatric impairment, and a history of learning disability, based on the prior IQ assessment noted above.
Plaintiff went to the emergency room having difficulty breathing on April 23, 2004; after receiving medication, she left the same day. (Tr. 306, 416). On July 2, 2004, Plaintiff began treatment at the Hygienic Institute in LaSalle, Illinois. (Tr. 347). Her progress note for that date states that she had two bad exacerbations of her asthma in the past year, with one hospital admission, and that her asthma symptoms are worse at night or with exertion. Plaintiff was given samples of several of her medications. On July 7, 2004, she went to the emergency room, where she received a refill of her inhaler. (Tr. 305).
Between August 24, 2004 and September 9, 2004, the Hygienic Institute tried repeatedly to get Plaintiff to cooperate with their efforts to obtain financial assistance for her medication. (Tr. 345-46). On September 3, 2004, Plaintiff had an appointment at the Hygienic Institute, at which it was noted that the nurse spoke with her about the need for her mother to cooperate with requests for information in order for Plaintiff to get assistance. (Tr. 346). She was to have a follow up appointment on September 8, 2004 with her mother present, but failed to call or appear for the appointment. (Tr. 345). On September 9, 2004, she was given the release form for the information needed to get assistance, but by November 2, 2004, she had not returned the form to the Hygienic Institute, so the Hygienic Institute noted that it would not pursue her regarding the assistance. (Tr. 344-45).
On September 18, 2004, Plaintiff went to the emergency room complaining of shortness of breath. (Tr. 300-04, 417). Her chest was found to be tight, but she was not clinically in any distress; after receiving medication and samples to take home, Plaintiff was discharged the same day. On October 4, 2004, Plaintiff visited the Hygienic Institute again for a follow up, where it was noted that she was using her medications as prescribed. (Tr. 345). Plaintiff went to the emergency room on October 16, 2004, where she was observed with a mild exacerbation of bronchial asthma, given medication, and discharged the same day. (Tr. 298-99, 418). On November 17, 2004, Plaintiff visited the Hygienic Institute because of shortness of breath that was not helped by her medication. (Tr. 344). She was observed with an acute exacerbation of severe persistent asthma, and was given medication. On the same day, prior to the visit, it was noted that Plaintiff had sought a medication refill only 13 days after an earlier refill.
Plaintiff had a follow-up visit at the Hygienic Institute on November 22, 2004, at which she reported feeling much better; she was using her medications as directed and was not using the nebulizer in excess of the prescribed dose. (Tr. 343). On January 17, 2005, the Hygienic Institute made a note of a phone call with Plaintiff, during which she was instructed to substitute a different medication for one that she could not afford. (Tr. 343). Plaintiff had a follow up visit at the Hygienic Institute on February 21, 2005, at which she reported that she was "doing good." (Tr. 341). On May 27, 2005, Plaintiff went to the Hygienic Institute with an asthma exacerbation, and was given medication. (Tr. 340). Plaintiff visited the emergency room on June 12, 2005, having had two or three days of shortness of breath, coughing, wheezing, and sore throat; she was assessed with bronchitis and exacerbation of bronchial asthma, given medication, and discharged that same day feeling much better. Plaintiff reported that she had earlier been outside at a cookout. (Tr. 296-97). On August 15, 2005, Plaintiff reported to the Hygienic Institute with an asthma exacerbation, and was given medication. (Tr. 339). On September 8, 2005, the Hygienic Institute noted that Plaintiff was instructed that if she needed inhaler refills more than once in a month, she would need to come in for a visit. (Tr. 342, 404).
Plaintiff was evaluated on July 6, 2005 by Dr. Donald Habecker, who performed a physical exam on Plaintiff and interviewed her about her medical history; he did not review her medical records. (Tr. 310-16). Dr. Habecker noted that Plaintiff claimed to have asthma with four to six emergency room visits each year, allergies, eczema, low back pain caused by a "crooked back," and learning disabilities. He diagnosed her, based on the physical exam and her stated history, with moderately severe asthma with six or seven bouts per year requiring steroids, back pain with exacerbations (but a normal exam that day), history of learning disability, and eczema that is controlled by medication.
On July 22, 2005, Dr. John Tamassetti performed a psychiatric review of Plaintiff based on her record, and found a non-severe impairment of history of learning disability. (Tr. 351-63). He found Plaintiff to have no restriction in activities of daily living, no difficulties in maintaining concentration, persistence, or pace, and no extended episodes of decompensation; he found only mild difficulties in maintaining social functioning.*fn1 Dr. Kenney Charles assessed Plaintiff's Physical RFC on July 25, 2005, and found no physical ...