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Warling v. Astrue

November 9, 2010

DAWN WARLING, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Judge Ronald A. Guzmán

MEMORANDUM OPINION AND ORDER

Plaintiff filed this suit pursuant to 42 U.S.C. § 405(g) for review of a final decision denying her application for disability insurance benefits. The parties have filed cross motions for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below, the Court affirms the Commissioner's decision.

Facts

On January 12, 2007, plaintiff was diagnosed with a burst disc with spinal cord compression. (Administrative Record ["AR"] 8-9.) Before her injury, plaintiff worked as a merchandiser, arranging product displays and shelves at grocery stores. (AR 120.) Each day, that job required her to walk and stand for two hours, climb for one and one-half hours, stoop and crouch for one hour, kneel for one-half hour and reach for fours hours. (AR 120.) She also had to lift twelve pounds frequently and lift and carry up to twenty pounds for short distances. (AR 120.) Plaintiff did not return to work after her injury. (AR 8.) On January 25, 2007, she applied for Social Security Disability Benefits. (AR 6.)

On April 20, 2007, an agency doctor determined that plaintiff had the residual functional capacity ("RFC") to stand or sit for six hours a day, balance and lift/carry twenty pounds occasionally and climb, stoop, kneel, crouch, crawl and lift/carry ten pounds frequently. (AR 198-205.)

On May 2, 2007, defendant denied plaintiff's application for benefits. (AR 56-60.) Plaintiff requested reconsideration of the decision, which was denied on October 9, 2007. (AR 62-65.)

On November 6, 2007, plaintiff requested a hearing on her claim before an Administrative Law Judge ("ALJ"). (AR 67.)

On May 8, 2008, plaintiff's treating physician, Dr. Bergin, prepared a residual capabilities questionnaire for plaintiff. (AR 249-50.) He said plaintiff had moderate chronic pain that would be aggravated by occasional lifting, bending and stooping and was unable to work "even [in] a sedentary occupation." (AR 250.)

On May 12, 2008, ALJ Dougherty held a hearing on plaintiff's application, and on February 2, 2009, she denied it. (AR 6-48.) The Appeals Council declined to review the decision. (AR 1.)

Discussion

The Court reviews the ALJ's decision de novo but gives deference to her factual findings. Prochaska v. Barnhart, 454 F.3d 731, 734 (7th Cir. 2006). The decision will be upheld if it is supported by substantial evidence, i.e., evidence "sufficient for a reasonable person to conclude that [it] supports the decision." Id. at 735 (quotation omitted).

The ALJ found that plaintiff is not disabled because she has the RFC to perform her previous job as a merchandiser, saying:

The vocational expert testified that the claimant's past relevant work as a merchandiser is semi-skilled, light work. The vocational expert further stated that the claimant's residual function capacity is not inconsistent with the performance of this work. Pursuant to SSR 00-4p, the vocational expert's testimony is consistent with the information contained in the Dictionary of Occupational Titles. (AR 11.) Plaintiff contends that this finding is not supported by the record because the vocational expert ("VE") did not testify about plaintiff's RFC.*fn1

Plaintiff is correct that the VE did not testify about plaintiff's RFC. (See AR 45-47.) But the ALJ's determination is still supported by the record. There is no dispute that plaintiff's merchandiser job is considered light work. (AR 46, 151); see U.S. Dep't of Labor, Dictionary of Occupational Titles ("DOT"), Occupational Definitions, 219.367-018 (4th ed. 1991), available at http://www.oalj.dol.gov/public/dot/references/dot02b.htm. The DOT defines light work as requiring "exert[ion of] up to 20 pounds of force occasionally, and/or up to 10 pounds of force frequently." U.S. Dep't of Labor, Dictionary of Occupational Titles, App. 3, ยง IV (4th ed. 1991), available at ...


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