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Duren v. Commissioner of Social Security

United States District Court, S.D. Illinois

March 22, 2018

WILLIAM D. DUREN, Plaintiff,



         In 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.

         Procedural History

         Plaintiff 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.

         Issues Raised by Plaintiff

         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.

         Applicable Legal Standards

         To 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. § 404.1572.

         Social 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 disabled. Id.

         At 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).

         A 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).

         The Decision of the ALJ

         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.

         The ALJ 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 introduced gradually.

         Based 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.

         The Evidentiary Record

         The 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 raised ...

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