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Casper v. Berryhill

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

April 13, 2018

TAMMIE SUE CASPER, Claimant,
v.
NANCY A. BERRYHILL, Deputy Commissioner for Operations, performing the duties and functions not reserved to the Commissioner of Social Security, Respondent.

          MEMORANDUM OPINION AND ORDER

          Jeffrey T. Gilbert, United States Magistrate Judge

         Claimant Tammie Sue Casper (“Claimant”) seeks review of the final decision of Respondent Nancy A. Berryhill, Acting Commissioner of Social Security (the “Commissioner”), denying Claimant's applications for Disability Insurance Benefits (“DIB”) under Title II and Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act (“the Act”). Pursuant to 28 U.S.C. Section 636(c) and Local Rule 73.1, the parties have consented to the jurisdiction of a United States Magistrate Judge for all proceedings, including entry of final judgment. [ECF No. 13.] The parties have filed opposing briefs in support of and in opposition to the Commissioner's decision [ECF Nos. 17, 24], which the Court will construe as cross-motions for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons stated below, Claimant's Motion [ECF No. 17] is granted, and the Commissioner's Motion [ECF No. 24] is denied. This matter is remanded for further proceedings consistent with the Court's Memorandum Opinion and Order.

         I. PROCEDURAL HISTORY

         On November 4, 2009, Claimant filed an application for DIB and SSI, alleging a disability onset date of January 1, 2007. (R. 181, 494, 579.) Through her attorney, Claimant amended her alleged onset date to December 2, 2009. (R. 181.) Claimant's application was denied, initially on May 7, 2010, then upon reconsideration on November 8, 2010, and again after a hearing before an Administrative Law Judge (“ALJ”) in a decision dated January 23, 2012. (R. 181, 174, 176.) Claimant had a right to further review of that adverse decision, and she exercised that right.

         A. Claimant's First Request for Review

         Claimant requested review by the Appeals Council (“AC”), which remanded the matter to the ALJ for further reconsideration on May 2, 2013. (R. 199-203.) The ALJ held a second hearing on March 17, 2014 (hereafter “2014 ALJ Decision”). (R. 87-125.) Plaintiff was represented by counsel and medical experts, Carl Leigh, M.D. and David Biscardi, M.D., and Aimee Mowery a vocational expert, also testified at the hearing. (Id.) The ALJ issued a partially favorable decision on August 18, 2014. (R. 204-226.) At step one, the ALJ determined that Claimant had not engaged in substantial gainful activity since December 2, 2009, the date Claimant became disabled. (R. 212.) At step two, the ALJ determined that Claimant, from December 2, 2009 through November 20, 2011, had the following severe impairments: status post open reduction and internal fixation of left ankle and left elbow fractures, obesity and a mood disorder. (Id.) At step three but before step four, the ALJ determined Claimant had the RFC to perform light work as defined by the regulations with restrictions and could never climb ladders, ropes or scaffolds; and could only occasionally climb ramps or stairs, stoop, crouch, kneel, crawl and operate foot controls with the left lower extremity; Claimant could frequently reach with left upper extremity. Claimant needed to avoid concentrated exposure to extreme cold and heat. Claimant needed to avoid even moderate exposure to vibrations. Claimant needed to avoid all exposure to unprotected heights and dangerous moving machinery; Claimant needed to avoid all exposure to slippery surfaces and uneven terrain; work limited to simple and routine tasks involving no interaction with the public in the work setting and only occasional interaction with co-workers. Due to mental impairments during the period of December 2, 2009 and November 20, 2011, Claimant could not sustain the concentration, persistence and pace to remain on task 85% or more of the time during an eight hour work period. (R. 213.) At step four, the ALJ determined from December 2, 2009 through November 20, 2011 Claimant was unable to perform any past relevant work. (R. 215.) At step five, the ALJ determined there were no jobs that existed in significant numbers in the national economy that Claimant could have performed from December 2, 2009 through November 20, 2011. (R. 216.)

         B. Claimant's Second Request for Review and AC Remand Order

         Claimant again requested review by the AC, which again remanded the matter on August 20, 2015, this time requesting a different ALJ for further consideration. (R. 229-232.) The AC remanded the case for resolution of two issues: First, the ALJ's 2014 decision did not contain an evaluation of the testimony given by the medical expert, Dr. Leigh, who testified that Claimant could stand and or walk for a maximum of three hours in an eight hour work day. (R. 230.) The AC determined that some evaluation of this testimony was necessary. (Id.) Second, the ALJ's 2014 decision did not contain an adequate evaluation of the non-examining source opinion provided by Vidya Madala, M.D., who completed a Physical Residual Functional Capacity Assessment (Exhibit 6F) and opined that Claimant could stand and or walk for “at least 2 hours in an 8-hour workday.” (Id.) The AC again stated that further consideration of this non-examining source opinion was necessary. (Id.)

         The AC directed that, on remand, the ALJ was to (1) further evaluate Claimant's subjective complaints and provide rationale in accordance with the disability regulations pertaining to evaluation of symptoms under 20 C.F.R. 404.1529, 416.929 and SSR 96-7p; and (2) give consideration to the non-examining source opinions pursuant to the provisions of 20 C.F.R. 404.15(e) and 416.927(e) and SR 96-6p, and explain the weight given to such opinion evidence. (R. 231.) Additionally, the ALJ was to give further consideration to Claimant's maximum residual functional capacity (“RFC”) and provide appropriate rationale with specific references to evidence of record in support of the assessed limitations. (20 C.F.R. 404.1545 and 416.945, SSR 85-16 and 96-8p.) If warranted by the expanded record, the ALJ also was to obtain supplemental evidence from a vocational expert to clarify the effect of the assessed limitations on Claimant's occupational base. (SSR 83-14.) The AC directed that the hypothetical questions should reflect the specific capacity and limitations established by the record as a whole. In addition, the ALJ was directed to ask the vocational expert (“VE”) to identify examples of appropriate jobs and to state the incidence of such jobs in the national economy (20 C.F.R. 404.1566 and 416.966). Further, before relying on the VE evidence, the ALJ was to identify and resolve any conflicts between the occupational evidence provided by the VE and information in the Dictionary of Occupational Titles (“DOT”) and its companion publication, the Selected Characteristics of Occupations (SSR 00-4p). (R. 231.)

         C. The ALJ's Decision on Remand

         The new ALJ held a third hearing on February 9, 2016. (R. 38-86.) Claimant was represented by counsel. She appeared and testified and a medical expert, James McKenna, M.D., and vocational expert, Aimee Mowery, also testified at Claimant's third hearing. On February 23, 2016, the ALJ then presiding over the case again denied Claimant's application for DIB. (R. 18-37.) This opinion also followed the five-step sequential evaluation process required by the SSRs. 20 C.F.R. Sec. 404.1520. At step one, the ALJ determined that Claimant did not engage in substantial gainful activity during the period from her alleged onset date of November 21, 2011. (R. 23.) At step two, the ALJ determined that Claimant suffered from the following severe impairments: major depressive disorder, history of post-traumatic stress disorder, status post open reduction and internal fixation of left ankle fracture, history of left elbow fracture with chronic stiffness, and obesity. (Id.) At step three, the ALJ determined that Claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 24.) Between step three and four, the ALJ determined Claimant had the RFC to light work involving: simple tasks with no public contact or more than occasional contact with peers and supervisors; sitting, standing and/or walking up to 6 hours in an 8 hour work day; no more than frequent: balancing, handling and reaching with the left non-dominant left upper extremity; occasional: overhead reaching with the left upper extremity, short ladder climbing (5-6 steps), stair and ramp climbing, stooping, kneeling, crouching and crawling; in a work environment exclusive of: any long ladder, rope or scaffold climbing requirements, even moderate exposure to extreme heat, cold or vibration, hazards such as unprotected heights or dangerous moving machinery or slippery surface and uneven terrain or a fast paced production environment. (R. 25.)

         At step four, the ALJ determined Claimant was unable to perform any past relevant work. (R. 28.) Finally, the ALJ determined that considering Claimant's age, education, work experience, and RFC, there were jobs that existed in significant numbers in the national economy that Claimant could have performed, including marker, sorter, and label coder. (R. 29.) For these reasons the ALJ found Claimant was not disabled from November 21, 2011 through the date of the decision. (Id.)

         Claimant once again requested review by the Appeals Council. This time, the AC issued a decision, on November 8, 2016, granting Claimant SSI benefits, but denying review in regards to DIB, making the ALJ's 2016 hearing decision the final decision of the Commissioner. (R. 1- 5). Claimant seeks review in this Court pursuant to 42 U.S.C. section 405(g); Spraggins v. Berryhill, 2017 WL 4169749 (N.D. Ill. 2017).

         II. ...


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