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Leslie Venus v. Michael J. Astrue

October 4, 2011


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


Before the Court is the Report and Recommendation of United States Magistrate Judge Clifford J. Proud (Doc. 32). The magistrate judge finds that the ALJ's decision is supported by substantial evidence in the record as a whole and that no errors of law were made. He therefore recommends that the Court affirm the final decision of the Commissioner that plaintiff is not disabled. Plaintiff Leslie Venus has timely filed objections to the Report and Recommendation (Doc.33). Defendant Commissioner of Social Security has not responded. Upon review of the record, the Court ADOPTS the Report and Recommendation of Magistrate Judge Clifford J. Proud (Doc. 32). Pursuant to 18 U.S.C. § 636(b), the Court will review de novo those portions of the Report and Recommendation to which objections were filed.


Plaintiff originally applied for Social Security Income on October 26, 2005. The Social Security Administration denied her application initially and again upon reconsideration.Plaintiff requested a hearing before an administrative law judge (ALJ) and a hearing was held before ALJ Sherwin F. Biesman, who denied plaintiff's application. Plaintiff's subsequent request for review by the Appeals Council was denied. Thus, the ALJ's decision became the final decision of the Commissioner of Social Security. Plaintiff now seeks judicial review of the Commissioner's final decision pursuant to 42 U.S.C. § 405(g).

Plaintiff raises three issues in her objection to the Report and Recommendation: (1) she argues that the ALJ did not follow the proper procedure in determining plaintiff's residual functional capacity (RFC) for her alleged wrist disability and lifting limitations; (2) she objects to the ALJ's finding that plaintiff lacked credibility, which the ALJ based primarily on Dr. Kosmicki's Test of Memory Malingering (TOMM); (3) and she maintains that the ALJ did not give sufficient weight to the opinions of Dr. Thomas, as a longtime treating physician. Plaintiff asks the Court to reject the Report and Recommendation and remand this matter to the Commissioner for a new hearing.


Social Security Guidelines

To receive disability benefits, a plaintiff must be disabled. A disabled person is one whose physical or mental impairments result from anatomical, physiological, or psychological abnormalities that can be demonstrated by medically acceptable clinical and laboratory diagnostic techniques and that prevent the person from performing previous work and any other kind of substantial gainful work existing in the national economy. 42 U.S.C. §§ 423(d)(1)(A) & (2)(A), 1382c(a)(3)(B) & (D).

The Social Security regulations provide for a five-step sequential inquiry for determining whether a plaintiff is disabled. 20 C.F.R. §§ 404.1520, 416.920. The Commissioner must consider in sequence: (1) whether the plaintiff is currently employed and doing substantial gainful activity, (2) whether the plaintiff has a severe medically determinable physical or mental impairment or combination of impairments, (3) whether the impairment meets or equals one listed by the Commissioner, and whether it meets the duration requirement, (4) whether the plaintiff has the residual functional capacity to return to doing his or her past work, and (5) whether the plaintiff is capable of making an adjustment to some other type of work available in the national economy. Id.

If the Commissioner finds that the plaintiff is disabled or not disabled at any step, the evaluation process stops. §§ 404.1520(a)(4), 416.920(a)(4). If there is an affirmative answer at either step three or five, then there is a finding of disability. Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 352 (7th Cir. 2005). At step three, if the impairment meets any of the severe impairments listed in the regulations, the impairment is acknowledged by the Commissioner. § 404.1520(a)(4)(iii); see also 20 C.F.R. Pt. 404, Subpt. P, App'x 1. However, if the impairment is not so listed, the Commissioner assesses the plaintiff's residual functional capacity, which in turn is used to determine whether the plaintiff can perform past work under step four or any other work in society under step five. § 404.1520(e). The plaintiff bears the burden of proof on steps one through four, but the burden shifts to the Commissioner at step five. Briscoe ex rel. Taylor, 425 F.3d at 352.

Standard of Review

Under the Social Security Act, a court must sustain the Commissioner's findings if they are supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is "more than a mere scintilla" of proof. Richardson v. Perales, 402 U.S. 389, 401 (1971); Butera v. Apfel, 173 F.3d 1049,1055 (7th Cir. 1999). The standard is satisfied by "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401. An ALJ need not address every objective finding in the record for his judgment to be supported by substantial evidence; the ALJ "need only build a bridge from the evidence to his conclusion." Sims v. Barnhart, 309 F.3d 424, 429 (7th Cir. 2002) (quoting Green v. Apfel, 204 F.3d 780, 781 (7th Cir. 2000)). Further, the Seventh Circuit urges "a commonsensical reading" of a plaintiff's medical history, "rather than nitpicking at it." Johnson v. Apfel, 189 F.3d 561, 564 (7th Cir. 1999). But an ALJ's decision "cannot stand if it lacks evidentiary support or an adequate discussion of the issues." Lopez ex. rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003) (citing Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002)); Carradine v. Barnhart, 360 F.3d 751, 756 (7th Cir. 2004).

The court will consider the entire administrative record but will not "reweigh evidence, resolve conflicts, decide questions of credibility, or substitute [its] own judgment for that of the Commissioner." Lopez ex. rel. Lopez, 336 F.3d at 539 ...

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