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Michael Pearl v. Michael J. Astrue

December 6, 2012


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


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

Procedural History

Plaintiff applied for benefits in June, 2006, alleging disability beginning on February 9, 2001. (Tr. 229, 234). The application was denied by an Administrative Law Judge (ALJ) after an evidentiary hearing. (Tr. 139-148). The Appeals Council then remanded the case for further proceedings. (Tr. 149-152). The case was assigned to a different ALJ on remand, Karen McCoy. After holding another evidentiary hearing, ALJ McCoy denied the application for benefits in a decision dated September 22, 2010. (Tr. 17-28). Plaintiff's request for review was denied by the Appeals Council, and the September 22, 2010, decision became the final agency decision subject to review here. (Tr. 5).

Plaintiff has exhausted his administrative remedies and has filed a timely complaint in Issues Raised by Plaintiff

Plaintiff raises the following issues:

1. The ALJ erred in weighing the medical opinions, including that of treating doctor Michelle Jenkins, M.D.

2. The testimony of the vocational expert (VE) did not support the ALJ's finding that there are a significant number of jobs that plaintiff could do where there was no evidence of the number of jobs with a sit/stand option.

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 Mr. Pearl 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 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 McCoy followed the five-step analytical framework described above. She determined that Mr. Pearl had not been engaged in substantial gainful activity since the alleged onset date. She noted that Mr. Pearl had received social security disability benefits from 2000 to 2004, but his benefits were terminated due to medical improvement. Because a prior application was denied on May 24, 2006, the earliest onset date was May 25, 2006. She determined that Mr. Pearl was insured for DIB through December 31, 2007. The ALJ found that plaintiff had severe impairments of knee pain with probable patellofemoral syndrome, back pain secondary to compression fractures in the thoracic spine and arthritis, polyneuropathy,*fn3 adjustment disorder with depressed mood, respiratory condition, history of cataract surgery, history of bilateral carpal tunnel syndrome with surgery, and history of seizures.

The ALJ further determined that plaintiff's impairments do not meet or equal a listed impairment. The ALJ found that Mr. Pearl had the residual functional capacity to perform a limited range of work at the light exertional level. His limitations included a need for a sit/stand option. A vocational expert testified that he could perform jobs which exist in significant numbers in the national and local economy. The ALJ accepted this testimony, and found that he is not disabled. (Tr. 17-28).

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

Plaintiff was born in April, 1960, and was 46 years old on the alleged onset date of May 25, 2006. (Tr. 267). He was 5' 7" and weighed 175 pounds. (Tr. 271). He alleged that he was unable to work because of hearing loss, fractures of T3, T4 and T12, reading and writing problems, blurred vision due to medication, arthritis, memory problems, polyneuropathy, asthma and restless leg syndrome. He had last worked in December, 1999. (Tr. 272).

Plaintiff had worked in the past as a lineman for a tree trimming company, certified nurse's assistant, rehabilitation technician, farm hand and janitor. (Tr. 273). He was in special education classes in school and had a GED. (Tr. 278).

Mr. Pearl submitted a report in July, 2006, in which he said that he tried to do some household chores such as dishes, laundry and yard work, but he was usually not able to do them because of cramping in his fingers and pain in his back and legs. He lived with his girlfriend and her daughters. (Tr. 291-298).

2. Evidentiary Hearing on August 4, 2010

ALJ McCoy held an evidentiary hearing on August 4, 2010. Plaintiff was represented by counsel. (Tr. 73). The ALJ noted that plaintiff's prior claim had been denied on May 24, 2006, and that denial was final. Plaintiff's counsel agreed that ...

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