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Herman v. Berryhill

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

March 8, 2017

MICHAEL H. HERMAN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the U.S. Social Security Administration, [1] Defendant.

          ORDER

          Susan E. Cox United States Magistrate Judge

         Plaintiff Michael Herman (“Plaintiff”) seeks judicial review of a final decision of the Commissioner of Social Security (“Commissioner”) denying Plaintiff Disability Insurance Benefits (“DIB”) under Title XVI of the Social Security Act. The Court grants the Plaintiff's motion for summary judgment (Dkt. 11), and denies the Commissioner's motion for summary judgment (Dkt. 19). The Court reverses the Commissioner's decision and remands the case for further proceedings consistent with this opinion.

         STATEMENT

         I. Procedural History

         Plaintiff filed a DIB application on March 22, 2012, alleging a disability onset date of January 20, 2012, due to Hashimoto's disease, hyperthyroidism, pre diabetes, obstructive sleep apnea, male hypogonadism, asthma, hypertension, hiatal hernia, gastroesophageal reflux disease, hypercholesterolemia, and an anxiety disorder. (R. 222, 226.) His initial application was denied on July 12, 2012, and again at the reconsideration stage on December 19, 2012. (R. 128, 132.)

         Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”) on January 15, 2013, and the hearing was scheduled on March 25, 2014. (R. 142, 44.) At the hearing, Plaintiff, who was represented by counsel, appeared and testified. (R. 69-81.) Vocational expert (“VE”) Aimee Mowery and medical expert (“ME”) James M. McKenna, M.D., also appeared and offered testimony. (R. 7-23, 82-93.) At that time, Plaintiff amended his alleged disability onset date to February 6, 2012. (R. 51.) On May 5, 2014, the ALJ issued a partially favorable written decision finding that Plaintiff was disabled as of April 18, 2014 through the date of the decision, but not prior thereto. (R. 22-38.) Plaintiff then filed a timely request for review of the ALJ's decision on June 12, 2014. (R. 17.) The Appeals Council (“AC”) granted the request, and, on October 19, 2015, issued a final decision of the Commissioner, finding that Plaintiff was not disabled within the meaning of the Act for the entire period under consideration. (R. 4-7); see 20 C.F.R. § 404.981. Plaintiff then filed this civil action pursuant to 42 U.S.C. §§ 405(g) and 1383(c).

         III. The ALJ's Decision

         On May 5, 2014, the ALJ issued a written determination denying Plaintiff's DIB application. (R 22-38.) As an initial matter, the ALJ found that Plaintiff met the insured status requirements of the Social Security Act through December 31, 2016. (R. 24.) Applying the five-step sequential evaluation process pursuant to 20 C.F.R. § 404.1520, the ALJ found, at step one, that Plaintiff had not engaged in substantial gainful activity since the amended alleged onset date of February 6, 2012. (Id.) At step two, the ALJ determined that Plaintiff had the severe impairments of obesity, sleep apnea, and anxiety. (Id.) At step three, the ALJ found that Plaintiff's impairments did not meet the severity requirements of the listing in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 25.) Before step four, the ALJ determined that Plaintiff had the residual functional capacity (“RFC”) to perform medium work as defined in 20 CFR 404.1567(c). (R. 27.) The ALJ also found that Plaintiff's RFC was further limited to no climbing ladders, ropes, or scaffolds; to no exposure to work hazards such as unprotected heights and moving machinery; and to simple routine work which would preclude fast paced or moving assembly type work. (Id.) At step four, the ALJ concluded that Plaintiff could not perform his past relevant work as a senior consultant. (R. 36.) Finally, at step five, the ALJ found that Plaintiff would have been able to perform work that existed in the national economy from February 6, 2012 through April 18, 2014; however, beginning on April 18, 2014, when Plaintiff turned 61 years old, no jobs existed in significant numbers in the national economy that Plaintiff could perform, given his age, education, work experience and RFC. (R. 36-38.) Given these findings, the ALJ concluded that Plaintiff was disabled as defined in the Social Security Act from April 18, 2014 until the date of the ALJ's opinion on May 5, 2014. (R. 38.)

         To support his RFC determination, the ALJ summarized Plaintiff's symptoms as reported by Plaintiff to various medical professionals, and also as he described them in Function Reports and at the hearing. (R. 27-34.) The ALJ concluded that Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, [Plaintiff's] statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible prior to April 18, 2014.” (R. 28.)

         The ALJ also summarized the opinions of various doctors who examined Plaintiff or reviewed the medical record (R. 28-36). Regarding the physical RFC determination, the ALJ accorded “very substantial weight” to the opinions of the ME “since he is familiar with the disability program and has had the opportunity to review and evaluate the entire record, including both the written documentation and hearing testimony.” (R. 34.) By contrast, the ALJ gave “less weight” to the state agency physicians' assessments, explaining that new evidence had been received since the state agency medical consultants formulated their opinions. (R. 34.) With regards to the mental RFC determination, the ALJ accorded “[n]o great or controlling” weight to the opinion of Dianne Stevenson, Psy.D., indicating that she was a one-time examiner of Plaintiff and that the treatment records do not support the level of limitation suggested by her. (R. 35.) Similarly “no great or controlling weight” was given to the medical source statement of treating psychiatrist Ralph M. Orland, M.D., or to his letter opining that Plaintiff is unable to work in any capacity at this point. (R. 35-36.) The ALJ reasoned that the level of limitation claimed by Dr. Orland is not supported by his own treatment notes, and that the issue of disability is reserved for the Commissioner. (R. 36.) The ALJ did not articulate what weight, if any, he gave to state agency mental health consultants.

         V. The AC's Decision

         On October 19, 2015, the AC issued an unfavorable decision, applying the five-step sequential evaluation process. (R. 1-8.) The AC adopted the ALJ's findings at steps one, two, three, and four of the sequential evaluation process. (R. 4-5.) At step five, the AC also adopted the ALJ's finding that Plaintiff would have been able to perform work that existed in the national economy from February 6, 2012 through April 18, 2014. (R. 5.) However, the AC rejected the VE's finding that Plaintiff would be unable to make a vocational adjustment to other work in the national economy once he changed age categories to closely approaching retirement age. (Id.) The AC explained, “Agency regulations indicate that an individual who is closely approaching retirement age and is limited to work at the medium exertional level should be found disabled only if that individual has a limited education and no work experience, or a marginal education and a history of unskilled work (20 C.F.R Subpart P, Appendix 2, Section 203.00(c)).” (Id.) Accordingly, the AC concluded that Plaintiff “was not disabled within the framework of Medical-Vocational Rules 203.15 and 203.07” for the entire period under consideration. (R. 5-6.)

         DISCUSSION

         I. ...


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