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Jody D. Gravel v. Michael J. Astrue

December 21, 2012


The opinion of the court was delivered by: Judge Ronald A. Guzman


Jody Gravel seeks judicial review of a final decision of the Commissioner of Social Security that she was not entitled to a period of disability, disability insurance benefits ("DIB") or supplemental security income ("SSI") under Titles II and XVI of the Social Security Act. 42 U.S.C. §§ 416(i), 423, 1382c. Plaintiff moves for summary judgment. For the reasons stated below, the motion is granted and the case remanded to the Social Security Administration. Facts

Plaintiff filed applications for SSI and DIB in February 2008 alleging a disability onset date of January 19, 2008. (AR 115-18.)*fn1 Her applications were denied initially, upon reconsideration, and following a hearing by an administrative law judge ("ALJ"). (Id. 20-28, 60-75, 535-45.) The Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. (Id. 4-6.)

Plaintiff, born in 1970, was 39 years old on the date of the ALJ's decision, October 6, 2009. (Id. 28, 96.) She has a high school education and previously worked as a cashier, clerk

and delivery person. (Id. 101, 105, 107-14.) She contends that she suffers from degenerative disc disease of her lumbar spine, hip osteoarthritis and a right knee impairment, which have severely limited her ability to perform basic activities. (Pl.'s Mot. Summ. J. at 2.) She also asserts that she suffers from uncontrolled diabetes, asthma exacerbations, hypertension, and obesity as well as borderline intellectual function and a depressive disorder. (Id.)

The ALJ found that Plaintiff suffered from severe impairments of degenerative disc disease, hip arthritis, and asthma that did not meet or equal a listed impairment. (AR 22, 24.) He further found that Plaintiff could perform light work that did not involve concentrated exposure to noxious fumes, odors respiratory irritants, or extreme temperatures or humidity. (Id. 24.) The ALJ then found that Plaintiff could perform her past relevant work as a waitress, call-out clerk, cashier, and telephone delivery person. (Id. 27-28.)


The Social Security Act, 42 U.S.C. § 405(g), authorizes judicial review of the Commissioner's final decision to determine "whether the record as a whole contains substantial evidence" to support that decision and whether the Commissioner committed an error of law. Garfield v. Schweiker, 732 F.2d 605, 607 (7th Cir. 1984). Substantial evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). Although a claimant has the burden to prove disability, the ALJ has a duty to develop a full and fair record. Thompson v. Sullivan, 933 F.2d 581, 585 (7th Cir. 1991). Failure to fulfill this obligation is "good cause" to remand the case to develop the record fully. Id. at 586. The Court reviews the ALJ's decision de novo but gives deference to any factual findings. Prochaska v. Barnhart, 454 F.3d 731, 734 (7th Cir. 2006).

The Social Security regulations set forth a five-step sequential evaluation process for the ALJ's determination of whether a claimant is disabled. 20 C.F.R. § 404.1520(a)(4). The ALJ must determine: (1) whether the claimant is currently engaged in any substantial gainful activity; (2) whether the claimant's alleged impairment or combination of impairments is severe; (3) whether any of the claimant's impairments meets or equals any impairment listed in the regulations as being so severe as to preclude substantial gainful activity; (4) whether the claimant is unable to perform his past relevant work; and (5) whether the claimant is unable to perform any other work existing in significant numbers in the national economy. Id. A finding of disability requires an affirmative answer at either step three or step five, while a negative finding at any step other than step three precludes a finding of disability. Craft v. Astrue, 539 F.3d 668, 674 (7th Cir. 2008).

A. Did the ALJ err by not properly considering Plaintiff's mental condition?

The ALJ concluded at step two that Plaintiff had "non-severe medically determinable mental impairments, including depression and borderline intellectual functioning." (AR 22.) According to the ALJ, "the medical evidence of record does not demonstrate more than a minimal limitation in the claimant's ability to perform basic mental work activities" and thus her mental impairments were non-severe. (Id. 23.)

Plaintiff's assertion that the ALJ "apparently disregarded" the opinion of the consultative psychologist, Dr. Friedson, is unavailing. The ALJ summarized Dr. Friedson's findings, including that while Plaintiff reported some depression that had been treated with Cymbalta, she had no formal psychiatric history, a psychiatrist or a mental health worker. (Id..) The ALJ further noted that Dr. Friedson diagnosed Plaintiff with borderline intellectual functioning and depressive disorder not otherwise specified. (Id.) After considering the broad functional areas set out in the regulations for evaluating mental disorders, 20 C.F.R. § 404.1520a(c)(3), the ALJ concluded that "[b]ecause the claimant's medically determinable mental impairment causes no more than 'mild' limitation in any of the first three functional areas and 'no' episodes of decompensation which have been of extended duration," any impairment was non-severe. (Id.) The ALJ properly reviewed the relevant evidence regarding Plaintiff's mental condition in determining that she did not have a severe mental impairment.

Although not referred to by the ALJ, Dr. Friedson indicated that Plaintiff had no restrictions responding appropriately to usual work situations and to changes in a routine work setting, mild restrictions interacting appropriately with co-workers and supervisors and moderate restrictions interacting appropriately with the public. Plaintiff contends that regardless whether the mental impairment was severe or not, the ALJ was required but failed to consider these restrictions in determining Plaintiff's functional capacity. SSR 96-8p, 1996 WL 374184 (Jul. 2, 1996). Because it is does not appear that the ALJ considered the restrictions listed by Dr. Friedson, such consideration must be performed on remand, the reasons for which are detailed below.

B. Did the ALJ commit reversible error by failing to properly determine at step three whether Plaintiff's condition meets or equals any listed impairment mandating an automatic finding of disability?

While concluding that Plaintiff had severe impairments of degenerative disc disease, arthritis in her hips and asthma, the ALJ found that Plaintiff did not have any impairment or combination of impairments that met or medically equaled an impairment listed at 20 C.F.R. Part 404, Subpart P, Appendix 1, which are presumptively disabling. (AR 24.) The ALJ first addressed whether Plaintiff met the requirements of Listing 1.02, a major dysfunction of a joint.

According to the regulations, this category of impairment is:

Characterized by gross anatomical deformity (e.g., subluxation, contracture, bony or fibrous ankylosis, instability) and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joint(s), and findings on appropriate medically acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the affected joint(s). With:

A. Involvement of one major peripheral weight-bearing joint (i.e., hip, knee, or ankle), resulting in inability to ...

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