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Pulido v. Colvin

United States District Court, N.D. Illinois, Eastern Division

July 23, 2014

MARIA PULIDO, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, [1] Defendant.

ORDER

SHEILA FINNEGAN, Magistrate Judge.

Plaintiff Maria Pulido seeks to overturn 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. 42 U.S.C. §§ 416, 423(d), 1381a. The parties consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and filed cross-motions for summary judgment. After careful review of the record, the Court denies the Commissioner's motion, grants Plaintiff's motion, and remands this case for further proceedings.

BACKGROUND

Plaintiff was born on July 29, 1967, and was 43 years old at the time of the hearing in this matter. (R. 46; 185). Plaintiff lives with her husband, who works full-time at Wal-Mart, and her twelve-year-old son. (R. 56). She earned a GED in Mexico, but could speak very little English at the time of the hearing, and could not read or write in English. (R. 52, 57, 68, 86). She was taking English as a Second Language ("ESL") classes at a nearby church for about six months prior to the hearing, but had missed some sessions due to feeling too badly to attend. (R. 78-79).

Plaintiff worked several jobs over the years, including as a cook in fast-food restaurants, and had been working most recently as a store laborer in Wal-Mart since 2006. (R. 85; 286-87). Plaintiff injured her back in work-related accidents in January and April 2009, which she treated with Vicodin, physical therapy, and lumbar epidural steroid injections. (R. 327; 387; 402-12; 583). Although a physician released Plaintiff for full-duty work without restrictions in July 2009, she claimed she was still unable to perform her job duties due to back pain, and was let go from her Wal-Mart job on October 10, 2009. (R. 58-59; 284; 437-38). Prior to being fired, she sometimes worked for a few hours as a greeter at Wal-Mart, and was able to speak enough English to direct customers to the store's departments. (R. 66-71).

Plaintiff filed her initial applications for DIB and SSI on October 8, 2009, alleging that her disability began on October 7, 2009. (R. 178-84; 185-88). After the Social Security Administration ("SSA") denied Plaintiff's claims initially on December 4, 2009, and upon reconsideration on March 10, 2010, Administrative Law Judge ("ALJ") Kim S. Nagle held an April 20, 2011 video hearing. (R. 96-97; 98-99; 46-95). Plaintiff, who appeared with counsel, testified at the hearing with the aid of a Spanish-language interpreter. (R. 46-49). Randall L. Harding, a vocational expert ("VE"), also testified. (R. 84-91).

In the ALJ's subsequent June 15, 2011 decision, she wrote that Plaintiff suffered from the following severe impairments: degenerative disc disease of the lumbar spine, and radiculopathy.[2] (R. 25). The ALJ also found that Plaintiff was not able to communicate in English, and was considered the same as an individual who is illiterate in English. (R. 32). Based on the record, the ALJ determined that Plaintiff was capable of sedentary work, except that she could only occasionally climb ramps and stairs, only occasionally stoop or crouch, and should never climb ladders, ropes or scaffolds. (R. 26). The ALJ also stated that Plaintiff should be allowed a sit-stand option at will, provided that in alternating positions she is off-task for no more than ten percent of the time. ( Id. ). Finally, the ALJ found that Plaintiff was limited to occupations which do not require knowledge of the English language. ( Id. ). Relying on the VE's testimony, the ALJ determined that Plaintiff was unable to perform any of her past relevant work, but she was not disabled because there were jobs that existed in significant numbers in the national economy that she could perform. (R. 32-33). Specifically, the ALJ found Plaintiff could perform the representative occupations of optical lens assembler (DOT 713.687-018), with 150 such jobs in the regional economy and 14, 000 such jobs in the national economy; optical polisher (DOT 713.684-038), with 200 such jobs in the regional economy and 14, 000 such jobs in the national economy; and lens gauger (DOT 716.687-030), with 150 such jobs in the regional economy and 8, 000 such jobs in the national economy. (R. 33). On July 19, 2011, Plaintiff requested review of the ALJ's decision, and on September 28, 2012, the appeal was denied. (R. 4-8; 17-18).

Plaintiff now seeks judicial review of the ALJ's decision, which stands as the final decision of the Commissioner. In support of her motion, Plaintiff argues that the ALJ erred by: (1) failing to resolve a conflict between the VE's testimony and the Dictionary of Occupational Titles ("DOT"), compromising the ALJ's reliance on the VE's testimony; (2) failing to attribute controlling weight to the opinions of her treating orthopedic surgeon, Dr. Ryon Hennessy; (3) giving considerable weight to the opinion of an independent medical examiner, Dr. Edward J. Goldberg; and (4) making a flawed credibility assessment.

DISCUSSION

A. Standard of Review

Judicial review of the ALJ's decision, which constitutes the Commissioner's final decision, is authorized by Section 405(g) of the Social Security Act. See 42 U.S.C. § 405(g). That decision will be upheld "so long as it is supported by substantial evidence' and the ALJ built an accurate and logical bridge' between the evidence and her conclusion. Thomas v. Colvin, 745 F.3d 802, 806 (7th Cir. 2014) (quoting Simila v. Astrue, 573 F.3d 503, 513 (7th Cir. 2009)). An ALJ need not mention every piece of evidence in her decision, as long as she does not ignore an entire line of evidence that is contrary to her conclusion. Id. (citing Arnett v. Astrue, 676 F.3d 586, 592 (7th Cir. 2012)). Although the Court will not reweigh the evidence or substitute its judgment for that of the ALJ, a decision that "lacks adequate discussion of the issues will be remanded." Moore v. Colvin, 743 F.3d 1118, 1121 (7th Cir. 2014); see also id. (the ALJ's articulated reasoning must be sufficient to allow the reviewing court to assess the validity of the agency's findings and afford a claimant meaningful judicial review).

B. Five-Step Inquiry

To qualify for SSI under Title XVI of the Social Security Act, or DIB under Title II of the Social Security Act, a claimant must establish that she suffers from a "disability" as defined by the Act and regulations. Infusino v. Colvin, 12 CV 3852, 2014 WL 266205, at *7 (N.D. Ill. Jan. 23, 2014); Gravina v. Astrue, 10-CV-6753, 2012 WL 3006470, at *3 (N.D. Ill. July 23, 2012). A person is disabled if she is unable to perform Aany 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 twelve months. 42 U.S.C. §§ 423 (d)(1)(A), 1382c(a)(3); see also Infusino, 2014 WL 266205, at *7; Gravina, 2012 WL 3006470, at *3.

In determining whether a claimant suffers from a disability, the ALJ conducts a standard five-step inquiry: (1) Is the claimant presently unemployed? (2) Is the claimant's impairment severe? (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 her former occupation? and (5) Is the claimant unable to perform any other work? See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see also Simila, 573 F.3d at 512-13 (citing Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000)).

C. The VE Testimony and the DOT

Plaintiff first argues that the ALJ's decision should be reversed because the government did not meet its burden at Step Five. (Doc. 18, at 10-11). Specifically, the VE testified that Plaintiff could perform certain representative jobs contained in the DOT, but Plaintiff argues that the DOT's descriptions of the language requirements for those jobs are not consistent with the ALJ's residual functional capacity ("RFC") determination.[3] ( Id. ). Plaintiff argues that the ALJ erred in relying on the VE testimony without resolving the discrepancy between the VE's testimony and the DOT. ( Id. )

The claimant bears the burden of proof in each of the first four steps of the disability determination, but the government bears the burden at the fifth step. Weatherbee v. Astrue, 649 F.3d 565, 569 (7th Cir. 2011) (citing 42 U.S.C. § 423(d)(2)(A); Briscoe v. Barnhart, 425 F.3d 345, 352 (7th Cir. 2005); Liskowitz v. Astrue, 559 F.3d 736, 740 (7th Cir. 2009)). At Step Five, the government "must present evidence establishing that the claimant possesses the residual functional capacity to perform work that exists in a significant quantity in the national economy." Id. ALJs are required by the social security regulations to take administrative notice of the DOT when determining whether jobs exist in the national economy in a significant quantity that a claimant can perform. See id. (citing 20 C.F.R. § 404.1566(d)(1); 20 C.F.R. 416.966(d)(1)). ALJs also typically use VEs to "supplement the information provided in the DOT by providing an impartial assessment of the types of occupations in which claimants can work and the availability of positions in such occupations." Id. (citing Liskowitz, 559 F.3d at 743). ...


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