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Buttaccio v. Berryhill

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

September 6, 2017

Jennifer Buttaccio, Plaintiff,
Nancy Berryhill,[1] Defendant.


          Ronald A. Guzmán United States District Judge.

         For the reasons stated below, the Commissioner's decision is reversed and remanded for further proceedings consistent with this opinion, and Plaintiff's motion for summary judgment [7] is granted. Civil case terminated.



         Plaintiff worked full time as an occupational therapist until October 2010, when she went on short-term disability leave. (AR 21.) She then returned to work as an occupational therapist for five hours per week between May 2011 and September 2011, but had to stop working for health reasons. (Id.) Plaintiff then worked from her home as a data entry clerk between March 2012 and June 2012, at which time she stopped working completely (Id.) She applied for disability insurance benefits on October 10, 2010. (AR 19.) Her claim was denied initially and on reconsideration. (Id.) Plaintiff testified at a hearing before an administrative law judge (“ALJ”) in October 2014, after which the ALJ issued a decision concluding that Plaintiff was not disabled and denying disability benefits. (Id.) On March 25, 2016, the Appeals Council denied review, so the ALJ's decision is considered the Commissioner's final decision. (AR 8.)


         Under 42 U.S.C. § 405(g), a Social Security claimant may obtain judicial review of any “final decision” of the agency by suing the Commissioner in a federal district court within sixty days following notice of the agency's decision. The Court has the power to “enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing” the agency's decision. Id.

         The Commissioner follows a five-step inquiry in evaluating claims for disability benefits under the Social Security Act: (1) whether the claimant is currently employed (i.e., engaged in substantial gainful activity); (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment is one that the Commissioner considers conclusively disabling; (4) if the claimant does not have a conclusively disabling impairment, whether she can perform her past relevant work; and (5) whether the claimant is capable of performing any work in the national economy. Kastner v. Astrue, 697 F.3d 642, 646 (7th Cir. 2012). An affirmative answer leads either to the next step or, on steps 3 and 5, to a finding that the claimant is disabled. 20 C.F.R. § 416.920; Briscoe, 425 F.3d at 352; Stein v. Sullivan, 892 F.2d 43, 44 (7th Cir. 1990). A negative answer at any point, other than step 3, stops the inquiry and leads to a determination that the claimant is not disabled. 20 C.F.R. § 404.1520; Stein, 892 F.2d at 44. The claimant bears the burden of proof through step four; if it is met, the burden shifts to the Commissioner at step five. Briscoe, 425 F.3d at 352.

         Here, the ALJ determined that Plaintiff: (1) has not been engaged in substantial gainful activity since the alleged onset date of April 15, 2010; (2) suffered the following severe impairments: chronic fatigue syndrome; fibromyalgia; degenerative disc disease of the cervical spine; interstitial cystitis; and adjustment disorder with depressed mood and anxiety; and (3) does not have an impairment or combination of impairments that meets or medically equals 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.). The ALJ then evaluated Plaintiff's residual functional capacity (“RFC”) and concluded that while Plaintiff could not perform any past relevant work, she could perform sedentary work, as defined in 20 C.F.R. § 404.1567(a) and which involved occasional stooping, kneeling, crouching crawling and climbing ramps and stairs. (AR 61.) According to the ALJ, Plaintiff could not climb ladders, ropes or scaffolds nor have exposure to more than moderate noise levels. (Id.) Further, the ALJ concluded that Plaintiff was capable of sustaining concentration persistence or pace, such that she could perform unskilled, simple, routine and repetitive work tasks, and although she was able to tolerate occasional changes in work tasks and occasional decision making, should not have any intense over-the-shoulder supervision nor be part of a team or engage in tandem tasks. (Id.)

         The ALJ asked the vocational expert (VE) whether based on the Plaintiff's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant could perform. The VE responded that Plaintiff could perform the requirements of the following occupations:

• Document preparer: 15, 000 jobs nationally and 600 in Illinois
• Table worker: 3, 000 jobs nationally and 300 in Illinois
• Inspector: 3, 000 jobs nationally and 300 in Illinois

(AR 80.) Based on this testimony, the ALJ concluded that Plaintiff “is capable of making a successful adjustment to other work that exists in significant numbers in the national economy, ” and therefore a finding of “not disabled” was appropriate. (Id.)


         The Court reviews the ALJ's decision deferentially to determine if it was supported by “substantial evidence, ” which the Seventh Circuit has defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Ghiselli v. Colvin, 837 F.3d 771, 776 (7th Cir. 2016). “Although [the Court] will not reweigh the evidence or substitute our own judgment for that of the ALJ, [the Court] will examine the ALJ's decision to determine whether it reflects a logical bridge from the evidence to the conclusions sufficient to allow . . ., [the] reviewing court[] to assess the validity of the agency's ultimate findings and afford [the claimant] meaningful judicial review.” Moore v. Colvin, 743 F.3d 1118, 1121 (7th Cir. 2014).

         A. Did ALJ Build a Complete Record in Light of Plaintiff's Lack of Attorney Representation?

         Plaintiff first argues that the ALJ failed to build a complete record particularly given that Plaintiff did not have legal representation at the hearing. While a Social Security claimant has a statutory right to counsel, see 42 U.S.C. § 406, a claimant may waive that right provided a proper waiver has been obtained by the ALJ. Wolf v. Colvin, No. 15-CV-47-WMC, 2016 WL 5793801, at *2 (W.D. Wis. Oct. 4, 2016). “[A] proper waiver must contain an explanation of: (a) the benefits of counsel; (b) the possibility of free counsel or a contingency fee arrangement; and (c) the statutory 25% withholding limitation on attorneys' fees, including required court approval of the fees.” Id. As recently noted by another court:

If the ALJ does not obtain a valid waiver of counsel, the case must be remanded for a new hearing. At the same time, the district court can deny remand if satisfied “that the ALJ fully and fairly developed the record.” Binion v. Shalala, 13 F.3d 243, 245-46 (7th Cir. 1994) (ALJ duty met if he “probes the claimant for possible disabilities and uncovers all of the relevant evidence”). In turn, a claimant can rebut the Commissioner's showing that the ALJ adequately developed the record by demonstrating prejudice or an evidentiary gap. Id. For example, prejudice may be shown if the ALJ failed to elicit all relevant information. Id.

Wolf, 2016 WL 5793801, at *2. “When a claimant appears without counsel, the ALJ must ‘scrupulously and conscientiously [ ] probe into, inquire of, and explore for all the relevant facts.'” Weber v. Colvin, No. 15 CV 1233, 2016 WL 5912897, at *5 (N.D. Ill. Oct. 11, 2016). “[A] significant, prejudicial omission is usually required before the court will find that the ...

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