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Fort v. Colvin

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

November 28, 2016

Stanley Fort, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          Iain D. Johnston, Magistrate Judge

         Plaintiff Stanley Fort brings this action under 42 U.S.C. §405(g), challenging one part of the Administrative Law Judge's (“ALJ”) decision. The ALJ found that plaintiff was disabled as of March 13, 2013, and therefore should be awarded supplemental security income from this date forward. That decision is not being challenged here. Plaintiff filed this appeal because he believes the ALJ also should have found him disabled at least several months earlier (i.e. sometime before his date last insured of December 31, 2012), which would mean that he would also qualify for disability insurance benefits, resulting in a higher monthly payment.[1]

         BACKGROUND

         On March 26, 2012, plaintiff protectively filed a Title II application for disability insurance benefits and Title XVI application for supplemental security income. He alleged an onset date of June 30, 2007, almost five years earlier. This was around the time he supposedly stopped working as busboy and dishwasher at a barbeque restaurant (more on this topic below). R. 69. Plaintiff alleged disability as a result of diabetes, hypertension, arthritis, and right shoulder pain. R. 60.

         Plaintiff first sought treatment for these conditions a month before he filed his applications. On February 27, 2012, he went to the emergency room asserting as his chief complaint that he had “[m]outh discomfort and inability to taste food.” R. 253. According to the notes from this visit, plaintiff, who was then 51 years old, had “never seen a doctor that he can remember.” Id. Doctors concluded that his mouth and tongue discomfort were secondary to newly diagnosed and uncontrolled diabetes, and they diagnosed him with hypertension. He was treated for these problems and released a few days later. This would be his only hospital stay.

         He then established primary care treatment with Crusader Clinic. In a May 2012 visit, he reported improvement with his diabetic symptoms. In a July 2012 visit, he reported having a pain in his right shoulder that was keeping him up at night.

         On November 28, 2012, plaintiff was examined by consultative examiner Dr. Ramchandani. Plaintiff complained about an aching pain in his right shoulder and left knee, as well as blurred vision. However, he denied having any hip pain. R. 319. Dr. Ramchandani noted that plaintiff had a normal, unassisted gait and was able to walk on his heels and toes, but was unable to squat due to pain in his left knee. An x-ray was ordered, which showed moderate arthritic changes to plaintiff's left hip. R. 322.

         Throughout 2013, plaintiff saw healthcare providers at Crusader Clinic on various occasions and reported (among other things) knee pain, swelling, and diabetic problems.

         On February 6, 2014, a hearing was held before the ALJ. Plaintiff, who was represented by counsel, testified about his education, work history, and medical problems. He stated that he has a sharp pain in his leg that hurts “all the time, ” that his side and shoulder also hurt “all the time, ” that he has “cramps real bad” in both knees, and that his hip bothered him “every now and then.” R. 41-42. He stated that the hip pain was on his right hip. On a typical day, he would “just sit there, watch tv.” R. 44. When the ALJ asked him whether he cooked any meals, plaintiff replied as follows: “Oh, no. No. No, I don't.” R. 44. He later added that he relied on his girlfriend, who is disabled, to do the cooking (as well as household chores) because plaintiff “can't cook.” R. 45.

         The above testimony was elicited by the ALJ. Plaintiff's attorney then asked additional questions. Plaintiff testified that he could stand for maybe 20 minutes at a time and that he had to lean on things and had fallen “a couple times.” R. 46. He used the cane only for walking because he could lean on something while standing. He could walk for about a half a block, using a cane, before he had to sit down. Plaintiff stated that he always used his cane when he left his house.

         On February 28, 2014, the ALJ found that plaintiff was disabled as of March 13, 2013. The ALJ found that plaintiff had the following severe impairments: “insulin dependent diabetes mellitus; osteoarthritis of the left hip, left knee, and right shoulder; hypertension with tobacco abuse; limited far acuity; and obesity.” R. 15. The ALJ concluded that, before March 13, 2013, plaintiff had the residual functional capacity to do light work. In reaching this conclusion, the ALJ found that there were a “number of inconsistencies” relevant to plaintiff's credibility. R. 18.

         DISCUSSION

         A reviewing court may enter judgment “affirming, modifying, or reversing the decision of the [Commissioner], with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). If supported by substantial evidence, the Commissioner's factual findings are conclusive. Substantial evidence exists if there is enough evidence that would allow a reasonable mind to determine that the decision's conclusion is supportable. Richardson v. Perales, 402 U.S. 389, 399-401 (1971). Accordingly, the reviewing court cannot displace the decision by reconsidering facts or evidence, or by making independent credibility determinations. Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008).

         However, the Seventh Circuit has emphasized that review is not merely a rubber stamp. Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir. 2002). A reviewing court must conduct a critical review of the evidence before affirming the Commissioner's decision. Eichstadt v. Astrue, 534 F.3d 663, 665 (7th Cir. 2008). Even when adequate record evidence exists to support the Commissioner's decision, the decision will not be affirmed if the Commissioner does not build an accurate and logical bridge from the evidence to the conclusion. Berger v. Astrue, 516 F.3d 539, 544 (7th Cir. 2008).

         In this appeal, plaintiff raises one broader argument and several discrete ones. The “overarching question” in this case, according to plaintiff, is whether the ALJ inconsistently found plaintiff disabled as of March 13, 2013, but not earlier. The lurking issue is whether plaintiff's condition progressively worsened, which the ALJ's ruling assumes, or whether it remained essentially the same, which seems to be plaintiff's position.

         Plaintiff makes two specific arguments regarding this issue. He argues that the ALJ “did not articulate any rationale” for choosing this particular onset date, and that the ALJ also failed to “elicit” testimony on this issue. Dkt. #20 at 1. The Court is not persuaded by the first argument because the ALJ pointed to specific reasons for choosing the onset date. The ALJ noted, for example, that plaintiff himself indicated that his condition had recently worsened (as of January 2013) because he had been shot while being robbed; that plaintiff described his problems to doctors as being more intense in some visits after March 13th; that plaintiff's weight had increased, thus putting more strain on his joints; that plaintiff's doctor in October 2013 had prescribed Tramadol for pain (to replace the Tylenol plaintiff had been using); and that plaintiff had been referred to a podiatrist in March 2013. R. 21-22, 231. Plaintiff's argument mostly ignores this evidence. In the few places where he offered a counter-argument to these points, plaintiff did so by implicitly conceding that the evidence is mixed such that the ALJ's interpretation would be a reasonable one. See, e.g., Dkt. #12 at 8 (arguing that it “does not seem a huge stretch to find” that he was disabled two and a half months earlier) (emphasis added). As the Government points out, it is plaintiff's burden to prove that he was disabled. See Eichstadt v. Astrue, 534 F.3d 663, 668 (7th Cir. 2008) (the claimant “bears the burden of producing medical evidence” and “bears the risk of uncertainty” when the record is sparse).

         Plaintiff's other argument-that the ALJ failed to elicit testimony on this issue-is also unpersuasive. Here is how plaintiff frames the argument in his opening brief: “The ALJ did not specifically elicit testimony from Mr. Fort indicating whether his pain had progressed since 2007[;] however the transcript would seem to indicate that Mr. Fort did not testify to any difference in his pain from 2007 to 2013.” Dkt. #12 at 6 (emphasis added). This argument is unconvincing. As an initial point, it overlooks the fact that plaintiff was represented at the hearing by counsel who was allowed to-and, in fact, did-ask questions about evidence plaintiff believed was favorable. The argument also again ignores the non-testimonial evidence relied on by the ALJ, including statements plaintiff made to his doctors. See, e.g. R. 231. Moreover, although plaintiff originally identified his onset date as being in 2007, he now seems to focus on the latter half of 2012 as the period when he became disabled. He does not make any strong argument for the original 2007 date. For example, in a post-hearing brief to the Appeals Council, plaintiff's counsel stated that plaintiff was disabled “as early as July 2012, ” seemingly abandoning the original 2007 date. R. 250. So, even under plaintiff's theory, there is a line- drawing question of determining exactly when his symptoms crossed the ...


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