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Dault v. Colvin

United States District Court, C.D. Illinois, Peoria Division

September 29, 2016

ANGELA M. DAULT, Plaintiff,
CAROLYN COLVIN, acting Commissioner of Social Security, Defendant.



         Now before the Court is the Plaintiff Angela M. Dault's Motion for Summary Judgment (Doc. 16) and the Commissioner's Motion for Summary Affirmance (Doc. 19). For the reasons state herein, the Court DENIES the Plaintiff's Motion for Summary Judgment, GRANTS the Motion for Summary Affirmance, and AFFIRMS the Administrative Law Judge's (ALJ) Decision denying Ms. Dault's claims for benefits.[1]


         On June 27, 2011, Dault filed an application for a period of disability, disability insurance benefits, and supplemental security benefits alleging disability beginning on May 2, 2011. Her claim was initially denied on September 23, 2011, and denied upon reconsideration on November 28, 2011. Dault filed a request for hearing concerning her application for disability insurance benefits. A hearing was held before the Honorable Diane Raese Flebbe, administrative law judge (ALJ) on November 7, 2012, in Peoria, Illinois. The ALJ issued an unfavorable opinion on December 21, 2012, and the Plaintiff subsequently requested review by the Appeals Council. On May 15, 2014, the Council remanded the claim with instructions to reevaluate the claimant's mental impairments, evaluate third-party opinion evidence under Social Security Ruling 06-03p, and consider new evidence that was submitted to the Council. (AR 165-67).

         A second hearing was held before ALJ Flebbe on September 5, 2014. At that time Dault was accompanied by her attorney, Burt Dancey, and her husband, Stephen Dault, who testified at the hearing. A Vocational Expert (VE), Dennis W. Gustafson, also testified. The ALJ denied Dault's claim in her Decision issued on September 16, 2014, finding the claimant not disabled. Dault's request for review by the Appeals Council was denied on March 25, 2015, making the ALJ's Decision the final decision of the Commissioner. On May 29, 2016, Dault filed the instant civil action seeking review of the ALJ's Decision. (Doc. 1).


         At the time she applied for disability, Dault was a 42 year old married woman living in Pekin, Illinois. On her Form SSA-3368 Dault reported that she had the following conditions: fibromyalgia, chronic fatigue syndrome, numbness/paralysis, sleep problems, and memory loss. (AR 330). Dault reported taking various medication for her symptoms and pain from fibromyalgia. (AR 333). She received treatment for fibromyalgia and involuntary movement in extremities, and symptoms such as numbness, extreme sweating, facial tics, memory loss, trouble sleeping, and inability to stay awake during working hours. (AR 333, 334, 337, 340).

         Dault completed three years of college, but does not have a degree. (AR 68). She received specialized secretarial training back in 1987. (AR 331). Previously, Dault has worked as an emergency dispatcher and in sales as a crafts distributor. (AR 331). However, she asserts that she is unable to work because of her conditions.

         On her Function Report, Dault stated that she does laundry for her family, and feeds the dogs, but she no longer walks the puppy because she fell while walking the dog. She can no longer drive comfortably, cook dinner, or clean for long periods of time. (AR 338). She occasionally uses a walker her physical therapist prescribed around the home. (AR 343). Besides her physical symptoms, she reported she is unable to handle the finances because of her memory problems. (AR 340).

         At the first hearing before the ALJ on November 7, 2012, Dault testified that she had to leave post-it notes around the house as reminders, and if she could not leave her bed, she would text herself if she took her medication or showered in order to keep track of her activities. (AR 104). She testified that her memory has been an increasing problem. (AR 104).

         At the second hearing before the ALJ on September 5, 2014, Dault testified that she was 5'7” and weighted 250 lbs[2]. According to Dault, her doctor attributed her weight gain to medication which he then changed. Although she could not say that her weight impacts her problems or functioning, she testified that she has chronic pain on a daily basis. (AR 68-70). She reports her conditions are unpredictable, with her pain fluctuating on a scale between a four and an eight on a scale from one to ten. (AR 71). She testified that she also has chronic fatigue and some days is unable to get out of bed. She also stated that she has frequent migraines. (AR 72, 83). Dault also testified that she has memory cognitive deficits related to her fibromyalgia, a phenomenon called “fibro fog.” (AR 73). She once again testified that this sometimes affects her short term memory, and her ability to sleep and concentrate. According to Dault, she also has recently been determined to have autoimmune thyroiditis and bipolar disorder. (AR 76).

         Upon questioning from the ALJ, Dault testified that she is able to walk down to the basement to do laundry three or four times a week. (AR 77). She also told the ALJ that she has not driven since June of 2011 or 2012. Despite this, Dault said she likes to do crafts about twice a month, paints her own nails, visits with friends once a week, and is able to do dishes and other chores around the house. (AR 78, 82). She also testified that she only went to two out of thirteen of her son's school concerts. (AR 79). When questioned, she testified that she is able to use a computer for an hour and phone for a total of forty minutes. However, she can only go to the grocery with her husband about once or twice a month, and otherwise only goes to the doctor's office. (AR 81-82). She does not regularly attend any other outside activities. She attributes her spending and online shopping problem to her manic episodes. (AR 82). She testified that she has had headaches as long as she can remember. (AR 83). When the ALJ asked if she had them while she was working, she responded that she did, but she called in sick so often that she lost her job. (AR 83).

         Next, her husband also testified. Stephen Dault, a deputy sheriff, testified that since the last hearing, his wife's conditions have worsened. He testified that she has to stop and rest while doing dishes. Some weeks, she is unable to walk downstairs to do laundry, and someone else will do the laundry. (AR 85-86).

         Finally, the ALJ elicited testimony from the VE. The hypothetical posed to the vocational expert (VE) was the following:

Okay, I would like you to please consider the ability to perform sedentary and light exertion work with occasional climbing ramps, and stairs, and ladders. Occasional balancing, stooping, kneeling, crouching, crawling. No climbing ropes or scaffolding. No operating a motor vehicle. No concentrated exposure to temperature extremes or hazards such as dangerous machinery or unprotected heights. I would like you to also please assume only occasional work interaction with the public. And I would like you to assume that because of mental impairments and symptoms combined, Ms. Dault may have periods of exacerbation resulting in moderate limitations in concentration, persistence, or pace such that she retains only the ability for competitive work activities that are detailed, but uninvolved. And to deal with little change in the work place, so no more than a few concrete variables. . . .
If we then assume a hypothetical individual Ms. Dault's age, education, and work experience are there other jobs that could be performed within the limitations given?

(AR 89-90). The VE testified that although Dault was unable to perform past work, she would be able to work in an unskilled job such as a maid and housekeeping cleaners, and some sedentary and light manufacturing activities such as manufacturing inspection, shadow draft scale operator, or linen grader. (AR 90). Other jobs suggested by the VE were stone setter, mold sheet cleaner, and hand packaging. (AR 91). The VE acknowledged that missing over two days per month might result in loss of employment. (AR 92).


         In her second Decision, which was thirty-two pages, the ALJ determined that Dault had the following severe impairments: fibromyalgia, obesity, migraine headaches, obstructive sleep apnea, insomnia, lumbar spine strain, bipolar disorder, anxiety. (AR 27). The ALJ then made the following Residual Functional Capacity (RFC) finding:

After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light (and sedentary) work as defined in 20 CFR § 404.1567(b) except no more than occasional climbing of ramps, stairs and ladders, balancing, stooping, kneeling, crouching, and crawling; no climbing of ropes or scaffolds; no concentrated exposure to temperature extremes or hazards such as dangerous machinery and unprotected heights; and, no operation of motor vehicles. Due to mental impairments and symptoms combined, the claimant might have moderate limitations in concentration, persistence or pace during period of symptom exacerbation and thus retains only the capacity for competitive work that is detailed but uninvolved and the capacity to handle little change so the work must involve no more than a few concrete variables. The claimant should also have no more than occasional interaction with the general public.

(AR 33). In reaching that finding, the ALJ discussed the testimony and medical evidence on the record. The ALJ explained that Dault's statements concerning the intensity, persistence, and functionally limiting effects of her alleged symptoms were not substantiated by objective medical evidence. Additionally, the ALJ found that the Claimant did not display marked restriction of activities of daily living; maintaining social functioning; marked difficulties in maintaining concentration, persistence, or pace; or repeated episodes of decompensation.

         The ALJ found that Dault did not meet Listing 3.10 (sleep-related breathing disorders) or Listing 12.02 (organic mental disorders) because of the lack of evidence. Additionally, the ALJ stated that there are no listings that specifically address the Claimant's migraines and fibromyalgia. The ALJ determined that under SSR 12-2p, which provides guidance for evaluating fibromyalgia, “the evidence fails to establish that the claimant's fibromyalgia considered singly or in combination with other impairments, medically equals any potentially relevant listing.” (AR 29). Further, the ALJ did not find that the evidence established the Claimant's weight met any relevant listing.

         Additionally, the ALJ found that Dault “has established at most a mild restriction of activities of daily living.” In her Decision, the ALJ included statements by Dault, claiming she “prepared sandwiches, did laundry, dusted and vacuumed.” However, on her 2011 Form SSA-3374 the Claimant wrote that she can prepare sandwiches, she added “some days I just cant do it” (AR 375), adding that her husband has to get the ingredients from the pantry and fix the meal. She wrote that she can prepare food or meals “maybe 2 times a week depending on how I feel.” She reported that she does not prepare full meals because she is unable to stand for long periods of time. (AR 374).

         The ALJ found that the claimant's statements concerning the intensity, persistence, and limiting effects of her symptoms are not supported. The ALJ went into details of the Claimant's medical history, from 2010 forward. The ALJ discussed the Claimant's sleeping problems, sleep apnea with associated hypoxemia, and multiple hospital visits for pain, tremors in her extremities, and weakness. (AR 38, 39). The ALJ mentioned that a sleep study doctor encouraged her to lose weight. (AR 38). The ALJ found that objective testing has not revealed great abnormalities in the Claimant's physical health. (AR 48). The ALJ pointed out that Dr. Tate recommended weight loss for the Claimant. (AR 47-48). With regard to the Claimant's headaches, the ALJ determined that the headaches improved when they were treated. He also indicated that he thought her complaints were inconsistent: in 2013, the Claimant stated she had daily headaches, earlier in 2013 reporting on two to three a month, whereas in 2014 she said the migraines occurred four times a week. (AR 48).

         Further, the ALJ stated that Dault has established only moderate difficulties in maintaining concentration, persistence, or pace. The ALJ cited the Claimant's questionnaire she completed in 2011. (AR 31). The ALJ also asserted that some of the activities Claimant enjoys require sustained concentration. Although the ALJ acknowledges that Dault leaves post-it notes and texts herself reminders, the consultative psychologist, Dr. Yakin, opined that she was cognitively capable of understanding, remembering, and carrying out an extensive variety of complex instructions. (AR 31). The ALJ relied upon Dr. Yakin's notes that she seemed to have a good short-term memory and a fair general fund of information, and showed attention and concentration during the evaluation. (AR 32). During a 2012 evaluation with Dr. Patel, the Claimant had difficulty retrieving information and the doctor questioned whether the source was anxiety. In 2014, Dr. Tate reported that the Claimant displayed normal attention and concentration. (AR 32).

         The ALJ also found that the claimant's cognitive and mental impairments lacked support in the objective treatment record and in the lack of specialized psychiatric treatment. (AR 50). Instead, the ALJ found that her subjective complaints, such as memory loss, came from her own reports, not from those of Dr. Yakin or Dr. Tate. (AR 49-50). The ALJ also found that the Claimant's bipolar disorder did not meet the requirements of Listing 12.4, stating that although her family doctor assessed her with bipolar disorder, the diagnosis was based on the claimant's subjective allegations rather than clinical evidence. (AR 29). Instead, the psychologist who conducted the consultative psychological examination only found an adjustment disorder and the mental status examinations only revealed depressed or dysphoric mood.

         The ALJ gave Dr. Hanna and Dr. Tate, Dault's treating physicians, essentially no weight, explaining that they did not provide adequate reasons for finding the Claimant disabled. (AR 51, 52). The ALJ agreed with the state agency consultants to some extent, specifically the tests they performed; however, the ALJ noted that he gave the Claimant the greater benefit of the doubt regarding her mental impairments. (AR 53). Ultimately, relying on the testimony of the VE, the ALJ found that the Claimant was capable of performing unskilled, sedentary work. (AR 55-56).


         Dault argues that the ALJ erred by: 1) not following the Social Security Ruling 12-2p; 2) giving improper weight to the opinions of the treating physicians; 3) improperly assessing Dault's credibility; 4) not accounting for Dault's limitations in concentration, persistence, or pace; and 5) making factual findings that are not supported by substantial evidence.

         The Court's function on review is not to try the case de novo or to supplant the ALJ's findings with the Court's own assessment of the evidence. See Schmidt v. Apfel, 201 F.3d 970, 972 (7th Cir. 2000); Pugh v. Bowen, 870 F.2d 1271 (7th Cir. 1989). Indeed, "[t]he 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). Although great deference is afforded to the determination made by the ALJ, the Court does not "merely rubber stamp the ALJ's decision." Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir. 2002). The Court's function is to determine whether the ALJ's findings were supported by substantial evidence and whether the proper legal standards were applied. Delgado v. Bowen, 782 F.2d 79, 82 (7th Cir. 1986). Substantial evidence is defined as such relevant evidence as a reasonable mind might accept as adequate to support the decision. Richardson v. Perales, 402 U.S. 389, 390 (1971), Henderson v. Apfel, 179 F.3d 507, 512 (7th Cir. 1999).

         In order to qualify for disability insurance benefits, an individual must show that his inability to work is medical in nature and that he is totally disabled. Economic conditions, personal factors, financial considerations, and attitudes of the employer are irrelevant in determining whether a plaintiff is eligible for disability. See 20 C.F.R. § 404.1566 (1986). The establishment of disability under the Act is a two-step process.

         First, the plaintiff must be suffering from a medically determinable physical or mental impairment, or combination of impairments, 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). Second, there must be a factual determination that the impairment renders the plaintiff unable to engage in any substantial gainful employment. McNeil v. Califano, 614 F.2d 142, 143 (7th Cir. 1980). The factual determination is made by using a five-step test. See 20 C.F.R. § 404.1520. In the following order, the ALJ must evaluate whether the claimant:

1) currently performs or, during the relevant time period, did perform any substantial gainful activity;
2) suffers from an impairment that is severe or whether a combination of her ...

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