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McDavid v. Colvin

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

March 7, 2017

LIONEL MCDAVID, Claimant,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Respondent.

          MEMORANDUM OPINION AND ORDER

          Jeffrey T. Gilbert, United States Magistrate Judge.

         Claimant 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.

         I. PROCEDURAL HISTORY

         On 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.)

         On 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.)

         Before 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.)

         II. STANDARD OF REVIEW

         A 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).

         Substantial 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. 2009).

         The "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).

         III. ANALYSIS

         Claimant 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.

         A. The ALJ Erred By Not Providing For Claimant To Appear In-Person At The Hearing

         20 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.[1] 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] ...


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