United States District Court, S.D. Illinois
WILLIAM D. DUREN, Plaintiff,
COMMISSIONER of SOCIAL SECURITY, Defendant.
MEMORANDUM AND ORDER
PHIL GILBERT, UNITED STATES DISTRICT JUDGE
accordance with 42 U.S.C. § 405(g), plaintiff William D.
Duren seeks judicial review of the final agency decision
denying his application for Disability Insurance Benefits
(DIB) pursuant to 42 U.S.C. § 423.
applied for benefits in September 2013 alleging disability
beginning on December 31, 2011. After holding an evidentiary
hearing, Administrative Law Judge (ALJ) Stuart T. Janney
denied the application in a written decision dated April 22,
2016. (Tr. 19-37.) The Appeals Council denied review, and the
decision of the ALJ became the final agency decision. (Tr.
1.) Plaintiff exhausted his administrative remedies and filed
a timely complaint in this Court.
Raised by Plaintiff
raises the following points:
1. The ALJ failed to properly evaluate the opinion of his
treating neurologist, Dr. Stephen Burger.
2. The ALJ applied an incorrect standard in assessing
residual functional capacity (RFC) in that he found that
plaintiff's pain and depression would cause “at
least” moderate difficulties in mental functioning, but
RFC is the most, not the least, the claimant can do.
3. The RFC assessment is not supported by substantial
evidence because of the above two errors and because the ALJ
failed to consider evidence that plaintiff would be off-task
during the work day, and the ALJ failed to ask the vocational
expert (VE) how he determined the number of jobs available.
qualify for benefits, a claimant must be
“disabled” pursuant to the Social Security Act.
The Act defines a “disability” 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 physical or mental impairment must result
from a medically demonstrable abnormality. 42 U.S.C. §
423(d)(3). Moreover, the impairment must prevent the
plaintiff from engaging in significant physical or mental
work activity done for pay or profit. 20 C.F.R. §
Security regulations require an ALJ to ask five questions
when determining whether a claimant is disabled. The first
three questions are simple: (1) whether the claimant is
presently unemployed; (2) whether the claimant has a severe
physical or mental impairment; and (3) whether that
impairment meets or is equivalent to one of the listed
impairments that the regulations acknowledge to be
conclusively disabling. 20 C.F.R. § 404.1520(a)(4);
Weatherbee v. Astrue, 649 F.3d 565, 569 (7th Cir.
2011). If the answers to these questions are “yes,
” then the ALJ should find that the claimant is
times, an ALJ may find that the claimant is unemployed and
has a serious impairment, but that the impairment is neither
listed in nor equivalent to the impairments in the
regulations-failing at step three. If this happens, then the
ALJ must ask a fourth question: (4) whether the claimant is
able to perform his or her previous work. Id. If the
claimant is not able to, then the burden shifts to the
Commissioner to answer a fifth and final question: (5)
whether the claimant is capable of performing any
work within the economy, in light of the claimant's age,
education, and work experience. If the claimant cannot, then
the ALJ should find the claimant to be disabled.
Id.; see also Simila v. Astrue, 573 F.3d
503, 512-13 (7th Cir. 2009); Zurawski v. Halter, 245
F.3d 881, 886 (7th Cir. 2001).
claimant may appeal the final decision of the Social Security
Administration to this Court, but the scope of review here is
limited: while the Court must ensure that the ALJ did not
make any errors of law, the ALJ's findings of fact are
conclusive as long as they are supported by
“substantial evidence.” 42 U.S.C. § 405(g).
Substantial evidence is evidence that a reasonable person
would find sufficient to support a decision.
Weatherbee, 649 F.3d at 568 (citing Jens v.
Barnhart, 347 F.3d 209, 212 (7th Cir. 2003)). The Court
takes into account the entire administrative record when
reviewing for substantial evidence, but it does not reweigh
evidence, resolve conflicts, decide questions of credibility,
or substitute its own judgment for that of the ALJ.
Brewer v. Chater, 103 F.3d 1384, 1390 (7th Cir.
1997); Moore v. Colvin, 743 F.3d 1118, 1121 (7th
Cir. 2014). But even though this judicial review is limited,
the Court should not and does not act as a rubber stamp for
the Commissioner. Parker v. Astrue, 597 F.3d 920,
921 (7th Cir. 2010).
Decision of the ALJ
Janney followed the five-step analytical framework described
above. He determined that plaintiff had not worked at the
level of substantial gainful activity since the alleged onset
date. He was insured for DIB only through December 31, 2016.
He found that plaintiff had severe impairments of cervical
and lumbar spine degenerative disc disease, osteoarthritis,
diabetes, lower extremity peripheral neuropathy, right
cubital tunnel syndrome, level 3 obesity, adjustment disorder
with mixed anxiety and depressed mood, depressive disorder,
and generalized anxiety disorder, which did not meet or equal
a listed impairment.
found that Mr. Duren had the RFC to perform work at the
sedentary exertional level with the ability to use a cane in
the non-dominant upper extremity. He was limited to
occasional balancing; frequent handling and fingering with
the right upper extremity; no concentrated exposure to
hazards; only rote or routine instructions or tasks that
require little independent judgment or decision-making at a
consistent pace over the course of the workday; no complex
tasks; work in a task or object-oriented setting as opposed
to a service-oriented setting; occasional contact with
coworkers, supervisors, and the public; and work in a stable
setting where there is little change in tools, processes, or
the setting itself, and change, where necessary, is
on the testimony of a vocational expert, the ALJ found that
plaintiff could not do his past relevant work, but he was not
disabled because he was able to do other jobs which exist in
significant numbers in the national economy.
Court has reviewed and considered the entire evidentiary
record in formulating this Memorandum and Order. The
following summary of the record is directed to the points