United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Jeffrey T. Gilbert, United States Magistrate Judge.
Lionel McDavid ("Claimant") seeks review of the
final decision of Respondent Carolyn W. Colvin, Acting
Commissioner of Social Security ("the
Commissioner"), denying Claimant's application for
Disability Insurance Benefits ("DIB") under Title
II of the Social Security Act ("the Act") and
Supplemental Security Income ("SSI") under Title
XVI of the Act. Pursuant to 28 U.S.C. § 636(c) and Local
Rule 73.1, the parties have consented to the jurisdiction of
a United States Magistrate Judge for all proceedings,
including entry of final judgment. (ECF No. 17.) Claimant has
moved pursuant to Federal Rule of Civil Procedure 56 for
summary judgment. (ECF No. 12.) For the reasons stated below,
Claimant's motion for summary judgement is granted. The
decision of the Commissioner is reversed, and the case is
remanded for further proceedings consistent with this
Memorandum Opinion and Order.
March 21, 2013, Claimant filed an application for DIB (R.
196-97), and on April 1, 2013, Claimant filed an application
for SSI, both alleging a disability onset date of March 31,
2011. (R. 198-203.) The claim was denied initially on
September 13, 2013 (R. 125-28), and upon reconsideration on
May 22, 2014. (R. 122-123.) On July 8, 2014, Claimant
requested a hearing before an Administrative Law Judge
("ALJ") (R. 141-42), which was held on February 26,
2015. (R. 38-69.) At that hearing, Claimant, who was
represented by counsel, testified via video teleconference.
(Id.) A vocational expert (the "VE") also
appeared and testified. (Id.)
March 23, 2015 the ALJ issued a written decision. (R. 13-29.)
In the decision, the ALJ went through the five-step
sequential evaluation process and ultimately found Claimant
not disabled under the Act. (R. 29.) At step one, the ALJ
found that Claimant had not engaged in substantial gainful
activity ("SGA") since March 31, 2011, the alleged
onset date. (R. 18.) At step two, the ALJ found that Claimant
had the severe impairments of rotator cuff tendinosis and
impingement syndrome in his left shoulder and tendonitis in
his left land. (Id.) At step three, the ALJ found
that Claimant did not have an impairment or combination of
impairments that met or medically equaled the severity of one
of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, and
404.1526). (R. 22.)
step four, the ALJ found that Claimant had the residual
functional capacity ("RFC") to perform a full range
of work at all exertional levels, but was limited to only
frequently using his left upper extremity to push/pull or
reach overhead. (R. 24.) Finally, at step five, the ALJ found
that there were jobs that existed in significant numbers in
the national economy that Claimant could perform. (R. 28, )
Specifically, the ALJ found that Claimant could work as a bus
driver, janitor, or truck driver. (Id.) Because of
this determination, the ALJ found that Claimant was not
disabled under the Act. (R. 29.)
STANDARD OF REVIEW
decision by an ALJ becomes the Commissioner's final
decision if the Appeals Council denies a request for review.
Sims v. Apfel, 530 U.S. 103, 106-07 (2000). Under
such circumstances, the district court reviews the decision
of the ALJ. Id. Judicial review is limited to
determining whether the decision is supported by substantial
evidence in the record and whether the ALJ applied the
correct legal standards in reaching her decision. Nelms
v. Astrue, 553 F.3d 1093, 1097 (7th Cir. 2009).
evidence is "such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion."
Richardson v. Perales, 402 U.S. 389, 401 (1971). A
"mere scintilla" of evidence is not enough.
Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir.
2002). Even when there is adequate evidence in the record to
support the decision, however, the findings will not be
upheld if the ALJ does not "build an accurate and
logical bridge from the evidence to the conclusion."
Berger v, Astrm, 516 F.3d 539, 544 (7th Cir. 2008).
If the Commissioner's decision lacks evidentiary support
or adequate discussion of the issues, it cannot stand.
Villano v. Astrue, 556 F.3d 558, 562 (7th Cir.
"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). Though the
standard of review is deferential, 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). It may not,
however, "displace the ALJ's judgment by
reconsidering facts or evidence, or by making independent
credibility determinations." Elder v. Astrue,
529 F.3d 408, 413 (7th Cir. 2008). Thus, judicial review is
limited to determining whether the ALJ applied the correct
legal standards and whether there is substantial evidence to
support the findings. Nelms, 553 F.3d at 1097. The
reviewing court may enter a 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).
asserts that the ALJ's decision must be reversed because
the ALJ: (1) erred when she proceeded with the video
teleconference hearing despite Claimant's objection; (2)
failed to identify the evidentiary basis that supported her
assessment of Claimant's RFC; (3) failed to properly
assess his credibility; and (4) committed legal error at Step
Four of the adjudication process because she failed to
support her finding that Claimant was capable of past
relevant work. As discussed below, the Court finds that the
ALJ erred when she determined that Claimant could perform
work at all exertional levels because no opining source
stated he could work at such a level. Because this conclusion
requires remand, the Court will address only that issue and
the first issue concerning the video teleconference. It need
not address the other alleged errors made by the ALJ.
The ALJ Erred By Not Providing For Claimant To Appear
In-Person At The Hearing
C.F.R. § 416.1429 provides that a claimant "may
appear" at a hearing "in person, by video
teleconferencing, or, under extraordinary circumstances, by
telephone." 20 C.F.R. § 416.1429. The Social
Security Administration's Hearings, Appeals, and
Litigation Law Manual ("HALLEX"), a non-binding
guide that courts look to "as a guide for procedural
rules" in social security cases, DiRosa v.
Astrue, 2012 WL 2885112, at *5 (N.D. 111. July 13,
2012), explains the process for selecting among the two more
common methods of appearance. According to HALLEX, the
Commissioner will give a claimant "the opportunity to
object to appearing at a hearing by [video teleconference]
("VTC") in the acknowledgement of the request for a
hearing." HALLEXX 1-2-3-12(A)(2), 2014 WL 4348272, at
*1. If a claimant objects in a timely fashion, then the ALJ
"must approve" that objection. HALLEX
I-2-3-10(A)(1), 1994 WL 1552640. That means the ALJ must
"schedule [the] ...