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Lust v. Berryhill

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

July 31, 2017

DARRYL LUST, SR., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.


          M. David Weisman United States Magistrate Judge

         Plaintiff Darryl Lust, Sr. brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the Commissioner's decision denying his application for Social Security benefits. For the reasons set forth below, the Court affirms the Commissioner's decision.


         Plaintiff filed an application for benefits on July 11, 2012, alleging a disability onset date of December 1, 2010. (R. 84-85.) His application was denied initially on November 30, 2012, and again on reconsideration on May 1, 2013. (R. 84, 94.) Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), which was held on March 20, 2015. (R. 30-76.) On April 10, 2015, the ALJ issued a decision denying plaintiff's application. (R. 15-25.) The Appeals Council denied review (R. 1-3), leaving the ALJ's decision as the final decision of the Commissioner. See Villano v. Astrue, 556 F.3d 558, 561-62 (7th Cir. 2009).


         The Court reviews the ALJ's decision deferentially, affirming if it is supported by “substantial evidence in the record, ” i.e., “‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” White v. Sullivan, 965 F.2d 133, 136 (7th Cir. 1992) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). “Although this standard is generous, it is not entirely uncritical, ” and the case must be remanded if the “decision lacks evidentiary support.” Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002).

         Under the Social Security Act, disability is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment 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). The regulations prescribe a five-part sequential test for determining whether a claimant is disabled. See 20 C.F.R. § 404.1520. Under the regulations, the Commissioner must consider: (1) whether the claimant has performed any substantial gainful activity during the period for which she claims disability; (2) if not, whether the claimant has a severe impairment or combination of impairments; (3) if so, whether the claimant's impairment meets or equals any listed impairment; (4) if not, whether the claimant retains the residual functional capacity (“RFC”) to perform her past relevant work; and (5) if not, whether he is unable to perform any other work existing in significant numbers in the national economy. Id.; Zurawski v. Halter, 245 F.3d 881, 885 (7th Cir. 2001). The claimant bears the burden of proof at steps one through four, and if that burden is met, the burden shifts at step five to the Commissioner to provide evidence that the claimant is capable of performing work existing in significant numbers in the national economy. See 20 C.F.R. § 404.1560(c)(2).

         At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since his application date. (R. 17.) At step two, the ALJ found that plaintiff had the severe impairments of “asthma, sarcoidosis, and degenerative disc disease.” (Id.) At step three, the ALJ found that plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of a listed impairment. (Id.) At step four, the ALJ found that plaintiff had no past relevant work but (R. 23) but has the RFC:

[T]o lift and carry twenty pounds occasionally and ten pounds frequently and can be in [sic] his feet standing/walking about four hours in an eight-hour workday and sit about six hours, with normal rest periods. He is able to be on his feet about one hour at a time and sit about two hours at a time. He is unable to work at heights, climb ladders, or frequently negotiate stairs. He may only occasionally crouch, kneel, or crawl. He should avoid concentrated exposure to fumes, dust, odors, gases, or poorly ventilated areas. He should avoid frequent twisting and turning of the body.

(R. 18.) At step five, the ALJ concluded that jobs exist in significant numbers in the national economy that plaintiff can perform, and thus is not disabled. (R. 24-25.)

         Plaintiff argues that the ALJ improperly evaluated the opinion of plaintiff's treating physician. An ALJ must give a treating physician's opinion controlling weight if “it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in [the] record.” 20 C.F.R. § 404.1527(c)(2); Scott v. Astrue, 647 F.3d 734, 739 (7th Cir. 2011). “If an ALJ does not give a treating physician's opinion controlling weight, the regulations require [him] to consider the length, nature, and extent of the treatment relationship, frequency of examination, the physician's specialty, the types of tests performed, and the consistency and supportability of the physician's opinion.” Moss v. Astrue, 555 F.3d 556, 561 (7th Cir. 2009); see 20 C.F.R. § 404.1527(c). The ALJ must give “good reasons” for the weight that he assigns a treating physician's opinion. Bates v. Colvin, 736 F.3d 1093, 1101 (7th Cir. 2013); see Roddy v. Astrue, 705 F.3d 631, 636-37 (7th Cir. 2013).

         Dr. Hamb, plaintiff's treating physician, opined that plaintiff: (1) has pain that will interfere with his concentration “constantly”; (2) is incapable of performing even low stress jobs; (3) can only sit for four hours and stand/walk for less than two hours of an eight-hour workday; (4) must walk around for five minutes every hour of an eight-hour workday; (5) will need to take unscheduled breaks five or six times during a workday; (6) needs an assistive device to stand/walk; (7) has “significant limitations in doing repetitive reaching, handling or fingering”; (8) can never stoop or crouch; and (9) will miss work more than four times a month. (R. 368-72.)

         The ALJ gave “little weight” to Dr. Hamb's opinion because he only examined plaintiff three times and his opinion was internally inconsistent and unsupported by his own records, diagnostic test results, the opinion of the consultative examiner, and plaintiff's reports of his daily activities:

. . . . First, the record contains no objective evidence to support Dr. Hamb's contention that the claimant has any limitations with his upper extremities . . . . In contrast, the findings at the consultative examination included full bilateral grip strength, full strength in the upper extremities, and normal ranges of motion in the hands, wrists, elbows, and shoulders. Second, nothing in the record -including Dr. Hamb's treatment notes - indicates the claimant needs or uses any assistive device to ambulate. The claimant did ...

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