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Beverly A. Smith v. Michael J. Astrue

February 3, 2012

BEVERLY A. SMITH, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Nan R. Nolan

MEMORANDUM OPINION AND ORDER

Plaintiff Beverly A. Smith filed this action seeking review of the final decision of the Commissioner of Social Security ("Commissioner") denying her application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act ("SSA"). 42 U.S.C. §§ 416, 423(d), 1381a. The parties have consented to the jurisdiction of the United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c), and have filed cross-motions for summary judgment. For the reasons stated below, this case is remanded for further proceedings consistent with this opinion.

I. THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS

To recover Disability Insurance Benefits ("DIB") or Supplemental Security Income ("SSI") under Titles II and XVI of the SSA,*fn1 a claimant must establish that he or she is disabled within the meaning of the SSA. York v. Massanari, 155 F. Supp. 2d 973, 977 (N.D. Ill. 2001); Keener v. Astrue, 2008 WL 687132, at *1 (S.D. Ill. 2008). A person is disabled if he or she is unable to perform "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." 20 C.F.R. §§ 404.1505(a), 416.905(a). In determining whether a claimant suffers from a disability, the ALJ conducts a standard five-step inquiry:

1. Is the claimant presently unemployed?

2. Does the claimant have a severe medically determinable physical or mental impairment that interferes with basic work-related activities and is expected to last at least 12 months?

3. Does the impairment meet or equal one of a list of specific impairments enumerated in the regulations?

4. Is the claimant unable to perform his or her former occupation?

5. Is the claimant unable to perform any other work?

20 C.F.R. §§ 404.1509, 404.1520, 416.909, 416.920; see Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000). "An affirmative answer leads either to the next step, or, on Steps 3 and 5, to a finding that the claimant is disabled. A negative answer at any point, other than Step 3, ends the inquiry and leads to a determination that a claimant is not disabled." Zalewski v. Heckler, 760 F.2d 160, 162 n.2 (7th Cir. 1985). "The burden of proof is on the claimant through step four; only at step five does the burden shift to the Commissioner." Clifford, 227 F.3d at 868.

II. PROCEDURAL HISTORY

Plaintiff applied for DIB and SSI on September 21, 2005, alleging she became disabled on November 7, 2004, due to pancreatitis, hypertension, hepatitis C, broken arm and internal conditions. (R. at 55--58, 62, 148, 152.) The application was denied initially and on reconsideration, after which Plaintiff filed a timely request for a hearing. (Id. at 55--58, 62, 73--82, 87--94, 96.)

On May 20, 2008, Plaintiff, represented by counsel, testified at a hearing before an Administrative Law Judge ("ALJ"). (R. at 10--54, 62.) The ALJ also heard testimony from GleeAnn L. Kehr, a vocational expert ("VE"), and Ashok G. Jilhewar, M.D., a medical expert ("ME"). (Id. at 10--54, 62, 126--31.)

The ALJ denied Plaintiff's request for benefits on February 3, 2009. (R. at 62-- 72.) Applying the five-step sequential evaluation process, the ALJ found, at step one, that Plaintiff has not engaged in substantial gainful activity since November 7, 2004, her alleged onset date. (Id. at 64.) At step two, the ALJ found that Plaintiff's recurrent pancreatitis, hepatitis C, and history of broken arm and right shoulder are severe impairments. (Id.) At step three, the ALJ determined that Plaintiff's impairments do not meet or medically equal the severity of any of the listings enumerated in the regulations. (Id. at 65.)

The ALJ then assessed Plaintiff's residual functional capacity ("RFC")*fn2 and determined that Plaintiff has the RFC to frequently lift and/or carry 10 pounds, occasionally lift and/or carry 20 pounds, and sit/stand and walk at least 6 hours each in an 8-hour workday. She has no limitations in her ability to perform fine or gross manipulation. Other limitations include: only occasional overhead reaching with the right upper extremity; only occasional climbing of ramps/stairs, stooping, kneeling, crouching, or crawling; and no climbing of ropes, scaffolds, or ladders; and no more than frequent balancing. She should avoid concentrated exposure to extreme heat/cold and pulmonary irritants such as fumes, odors, dusts, gases and poor ventilation.

(R. at 65.) Based on Plaintiff's RFC and the VE's testimony, the ALJ determined at step four that Plaintiff could not perform any past relevant work. (Id. at 70.) At step five, based on Plaintiff's RFC, her vocational factors and the VE's testimony, the ALJ determined that there are jobs that exist in significant numbers in the regional economy that Plaintiff can perform, including work as a retail clerk, office helper, information clerk, housekeeping, and mail clerk. (Id. at ...


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