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Kusher v. Berryhill

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

February 21, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          M. David Weisman, United States Magistrate Judge

         Michelle Teresa Kusher appeals the Commissioner's decision denying her application for Social Security benefits. For the reasons set forth below, the Court reverses the Commissioner's decision.


         Plaintiff filed an application for benefits on October 18, 2013. (R. 88.) Her application was denied initially on March 25, 2014 and again on reconsideration on October 14, 2014. (R. 88, 105.) Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), which was held on January 20, 2016. (R. 38-74.) On February 19, 2016, the ALJ issued a decision denying plaintiff's application. (R. 17-28.) 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) (citation omitted).

         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(a). The Commissioner must consider whether: (1) the claimant has performed any substantial gainful activity during the period for which she claims disability; (2) the claimant has a severe impairment or combination of impairments; (3) the claimant's impairment meets or equals any listed impairment; (4) the claimant retains the residual functional capacity to perform her past relevant work; and (5) the claimant is able 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. 20 C.F.R. § 404.1560(c)(2); Zurawski, 245 F.3d at 886. If that burden is met, at step five, the burden shifts to the Commissioner to establish that the claimant is capable of performing work existing in significant numbers in the national economy. 20 C.F.R. § 404.1560(c)(2).

         At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since the alleged onset date, March 1, 2012. (R. 19.) At step two, the ALJ determined that plaintiff had the severe impairments of “vertebral artery dissection;[1] spondylolisthesis;[2] brachial plexus[3] damage; right shoulder neuropathy;[4] tendonitis; anxiety; and depression.” (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 one of the listed impairments. (Id.) At step four, the ALJ found that plaintiff was unable to perform any past relevant work (R. 27) but retains the residual functional capacity (“RFC”) to:

[L]ift and/or carry 20 pounds occasionally, ten pounds frequently with the left arm (claimant is left handed); lift and/or carry three pounds with the right arm; stand and/or walk six hours out of an eight-hour workday; and sit six hours out of an eight-hour workday. She cannot climb ladders, ropes, or scaffolds. She can occasionally climb ramps and stairs and occasionally crawl. She can frequently balance, stoop, kneel, and crouch. She cannot reach above shoulder level with the right arm and hand, no restrictions with the left arm and hand. She cannot work around unprotected heights, dangerous moving machinery, or commercial vehicles. She can perform simple repetitive tasks with no fast paced tasks, but can perform end of day quotas and adapt to routine changes in the work environment.

(R. 20-21.) At step five, the ALJ found that jobs exist in significant numbers in the national economy that plaintiff can perform, and thus she is not disabled. (R. 27-28.)

         Plaintiff contends that the ALJ improperly assessed the opinion of plaintiff's treating physician, Dr. Shi. 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 the 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). The ALJ must give good reasons for the weight that it assigns a treating physician's opinion. Bates v. Colvin, 736 F.3d 1093, 1101 (7th Cir. 2013) (quotation omitted). “If an ALJ does not give a treating physician's opinion controlling weight, the regulations require the ALJ 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).

         Dr. Shi opined that plaintiff had “[r]ight brachial plexus injury which . . . continue[d] to cause [her] pain, ” “limited [her] use of the right arm and hand, ” “limited [her posture] due to the pain and discomfort, ” and caused her left arm to be in pain from continuous use. (R. 668, 673.) Dr. Shi also said that plaintiff was limited to occasional lifting and carrying less than three pounds; sitting, standing, and walking for forty-five minutes at a time and a total of two hours of an eight-hour workday; occasional balancing, stooping, kneeling, and crouching, and could never reach, handle, finger, feel, push or pull with her right arm and could do so only occasionally with her left arm. (R. 668-73.)

         The ALJ gave “partial weight” to Dr. Shi's opinion, but rejected, among other things, the lifting restrictions he imposed because:

. . . . [Claimant] and her boyfriend reported activities consistent with greater lifting capacity than less than three pounds. For example, the claimant grocery shops, drives a car, feeds her dog and cat, makes coffee in the mornings, and drags laundry baskets downstairs. She takes her ...

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