The opinion of the court was delivered by: Proud, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), plaintiff David Kenneth Winters is before the Court, represented by counsel, seeking review of the final decision of the Commissioner of Social Security denying the application of David L. Winters for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI).*fn1
Plaintiff David Kenneth Winters is the surviving son of David L. Winters. References to "Mr. Winters" or to "claimant" herein shall be taken as references to David L. Winters.
Claimant David L. Winters applied for benefits in August, 2006, alleging disability beginning on June 13, 2005. (Tr. 153, 159). His application was denied initially and on reconsideration. ALJ Joseph W. Warzycki held a hearing on November 5, 2008. (Tr. 2773).
David L. Winters passed away on December 22, 2008, due to nonischemic (dilated) cardiomyopathy and acute renal failure. (Tr. 193). The ALJ denied the application for benefits in a decision dated August 18, 2009. (Tr. 12-19). Plaintiff's attorney filed a request for review by the Appeals Council. (Tr. 24).
The Appeals Council dismissed the request for review as to the SSI claim because the children of a deceased claimant are not eligible to receive SSI payments. 20 C.F.R. §§416.542(b) & 416.1471(b). The dismissal of a request for review by the Appeal Council is a not subject to judicial review. 20 C.F.R. §416.1472.
The Appeals Council denied the request for review as to the denial of DIB. Therefore, the decision of the ALJ became the final agency decision as to that issue. (Tr. 4-7). 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. He erred in determining that claimant did not meet or equal the requirements of Listing 4.02, Chronic Heart Failure.
2. He failed to consider whether claimant met or equaled Listing 6.02, Impairment of Renal Function.
3. He failed to consider the impairments of spondylosis, gout and renal failure.
4. The ALJ's assessment of claimant's residual functional capacity was not supported by substantial evidence and was inconsistent with the hypothetical question posed to the vocational expert.
Applicable Legal Standards
To qualify for DIB, a claimant must be disabled within the meaning of the applicable statutes. 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). 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). "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).
The Seventh Circuit Court of Appeals has explained the five-step inquiry as follows:
The first step considers whether the applicant is engaging in substantial gainful activity. The second step evaluates whether an alleged physical or mental impairment is severe, medically determinable, and meets a durational requirement. The third step compares the impairment to a list of impairments that are considered conclusively disabling. If the impairment meets or equals one of the listed impairments, then the applicant is considered disabled; if the impairment does not meet or equal a listed impairment, then the evaluation continues. The fourth step assesses an applicant's residual functional capacity (RFC) and ability to engage in past relevant work. If an applicant can engage in past relevant work, he is not disabled. The fifth step assesses the applicant's RFC, as well as his age, education, and work experience to determine whether the applicant can engage in other work. If the applicant can engage in other work, he is not disabled.
Weatherbee v. Astrue, 649 F.3d 565, 568-569 (7th Cir. 2011).
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 Mr. Winters was, 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." Richardson 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 ...