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Kathy Willis v. Michael J. Astrue

July 1, 2011


The opinion of the court was delivered by: Proud, Magistrate Judge:


In accordance with 42 U.S.C. § 405(g), plaintiff Kathy Willis is before the Court, represented by counsel, seeking review of the final decision of the Commissioner of Social Security denying her Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI).*fn1

Procedural History

Ms. Willis filed prior applications for benefits. The most recent prior application was denied on September 6, 2005, and was not appealed. (Tr. 9, 18). Therefore, the period at issue begins on September 6, 2005.

The present application was denied initially and on reconsideration. After holding a hearing, ALJ Gail Reich denied the application for benefits in a decision dated January 26, 2009. (Tr. 9-16). Plaintiff's request for review was denied by the Appeals Council, and the decision of the ALJ became the final agency decision. (Tr. 1). Administrative remedies have been exhausted and a timely complaint was filed in this Court.

Issues Raised by Plaintiff

Plaintiff argues that the ALJ erred in the following respects:

1. Her RFC assessment was legally flawed .

2. She erred in finding that plaintiff's COPD was not a severe impairment.

3. She erred in weighing the opinions of plainitff's treating doctor, Dr. Cordts. Applicable Legal Standards

To qualify for DIB or SSI, a claimant must be disabled within the meaning of the applicable statutes.*fn2 For these purposes, "disabled" means 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). "Substantial gainful activity" is work activity that involves doing significant physical or mental activities, and that is done for pay or profit. 20 C.F.R. §§ 404.1572.

Social Security regulations set forth a sequential five-step inquiry to determine whether a claimant is disabled. It must be determined: (1) whether the claimant is presently unemployed; (2) whether the claimant has an impairment or combination of impairments that is serious; (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); see also, 20 C.F.R. §§ 404.1520(b-f).

This Court reviews the Commissioner's decision to ensure that the decision is supported by substantial evidence and that no mistakes of law were made. The scope of review is limited. "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, this Court must determine not whether Ms. Willis is, in fact, disabled, but whether the ALJ's findings were supported by substantial evidence and whether any errors of law were made. See, Books v. Chater, 91 F.3d 972, 977-78 (7th Cir. 1996) (citing Diaz v. Chater, 55 F.3d 300, 306 (7th Cir. 1995)). This Court uses the Supreme Court's definition of substantial evidence, i.e, "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richard 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). However, while judicial review is deferential, it is not abject; this Court does not act as a rubber stamp for the Commissioner. See, Parker v. Astrue, 597 F.3d 920, 921 (7th Cir. 2010), and cases cited therein.

The Decision of the ALJ

ALJ Reich followed the five-step analytical framework described above. She determined that Ms. Willis had not been engaged in substantial gainful activity since the alleged onset date, and that she has severe impairments of lumbar degenerative disc disease, abdominal pain, major depression, anxiety and posttraumatic stress disorder. She determined that these impairments do not meet or equal a listed impairment. The ALJ found that Ms. Willis has the residual functional capacity to perform work at the light exertional level with some limitations. Based on the testimony of a vocational expert, she found that Ms. Willis is able to do jobs which exist in significant numbers in the regional and national economy, which leads to the conclusion that she is not disabled.

The Evidentiary Record

The Court has reviewed and considered the entire evidentiary record in formulating this Memorandum and Order. The following summary of the record is directed to the points raised by plaintiff.

1. Agency Forms

An undated Disability Report, apparently completed by plaintiff, states that she stopped working on March 15, 2003, due to "back problems." She identified "illiterate, bad back and depression" as the conditions which limit her ability to work. (Tr. 175).

In an Activities of Daily Living Questionnaire dated April 10, 2006, plaintiff indicated that she hears voices and "sees demons that are not there." She stated that she feels like someone is watching her and trying to get in the doors at night. (Tr. 199-200).

2. Plaintiff's Testimony

Plaintiff was represented by an attorney at the evidentiary hearing on November 13, 2008. (Tr. 93).

After conferring with plaintiff, her attorney told the ALJ that she wanted to amend the onset date to January 1, 2006, as alcohol abuse prior to that date had contributed to her condition. (Tr. 95-96).

Plaintiff was born in 1960 and was 48 years old at the time of the hearing. (Tr. 95). She had a fifth grade education. She last worked about 4 years prior to the hearing, in an iron factory. (Tr. 96). She operated a machine, which gave off a lot of heat, and her breathing got so bad that she had to quit. She also has back pain and stomach pain. The stomach pain was from being shot about 5 years earlier. (Tr. 97).

Plaintiff lives with her adult daughter, who supports her. Ms. Willis testified that she stays in bed most of the day and does not do much of anything. (Tr. 98).

Ms. Willis has COPD. She had cut down on her smoking about 6 months previously, but was still smoking a pack of cigarettes every 3 or 4 days. She quit drinking "quite a while ago." (Tr. 99).

Ms. Willis testified that she has low back pain, which is helped by medication. A doctor in Cape Girardeau wanted to operate on her, but she did not have insurance. (Tr. 100). Dr. Cordts wanted to give her shots, but she has no way to pay for the treatment. (Tr. 101).

She has also had abdominal pain. She had a hysterectomy in November, 2005, which made it worse. (Tr. 101). Her most recent surgery was for a hernia which resulted from surgery to remove scar tissue from a gunshot wound. She ...

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