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Herman v. Berryhill

United States District Court, N.D. Illinois

April 25, 2018

Crystal Diamond Herman, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

          ORDER

          FREDERICK J. KAPALA DISTRICT JUDGE.

         Plaintiff's letter [18], which is construed as an objection to the magistrate judge's report and recommendation [17] is overruled and the court accepts the report and recommendation. Plaintiff's motion for summary judgment [1] is denied, and defendant's motion for summary judgment [14] is granted. This case is closed.

         STATEMENT

         Before the court is a report and recommendation (“R&R”) of the magistrate judge that plaintiff's challenge to the denial of her applications for social security benefits be denied and that defendant's motion for summary judgment be granted. Plaintiff filed a letter with the court responding to the R&R which the court has construed as an objection to the R&R. For the reasons stated below, plaintiff's objection is overruled, the court accepts the R&R, plaintiff's motion for summary judgment is denied, and defendant's motion for summary judgment is granted.

         I. BACKGROUND

         In November 2012, plaintiff, Crystal Diamond Herman, filed an application for a period of disability and disability insurance benefits under Title II of the Social Security Act (“Act”) as well as an application for supplemental security income under Title XVI of the Act, both indicating December 31, 2010, as the beginning date of her disability. The claims were initially denied in February 2013 and again upon reconsideration in September 2013. After filing a written request for a hearing, plaintiff appeared and testified in January 2015 before an administrative law judge (“ALJ”) who found plaintiff was not disabled and denied plaintiff's applications. The Social Security Administration Appeals Council (“Appeals Council”) declined plaintiff's request to review the ALJ's decision, leaving the ALJ's decision as the final decision of the Commissioner, and, as such, reviewable by the district court. See 42 U.S.C. § 405(g); Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) challenging the decision of the ALJ. Defendant, Nancy A. Berryhill, Acting Commissioner of Social Security (“Commissioner”), filed a motion for summary judgment. Upon review, the magistrate judge issued an R&R recommending that plaintiff's challenge to the ALJ's decision be denied, that defendant's motion for summary judgment be granted, and that the ALJ's decision be affirmed.

         At plaintiff's hearing before the ALJ, plaintiff was represented by appointed counsel who had submitted a pre-hearing brief recounting plaintiff's medical history and presenting plaintiff's position. Plaintiff testified that she was living with her mother, who worked full-time, and her stepfather, who did not work because he was disabled. Though plaintiff had been involved in a car accident in which she had been driving two weeks before the hearing, when the ALJ asked plaintiff how often she drove during an average week plaintiff responded, “[r]eally none.” The ALJ inquired further, “[w]ell you were driving just a couple of weeks ago when you got in a car accident, weren't you?” Plaintiff responded, “[y]es ma'am. That was one time.” The ALJ also recognized, “while you've alleged an onset date of December of 2010 in the forms that you submitted, you indicate you have been a babysitter or were a babysitter from 2002 through 2013, is that correct?” Plaintiff explained that this was not correct, but that she had lost her memory when filling out the forms because of the medication she was on. She explained, “I think it's 2010 that I stopped babysitting now instead of 2011 or whatever date it was.” She claimed it had become too hard for her to babysit because she did not have enough energy or patience.

         In discussing plaintiff's impairments, the ALJ asked plaintiff about her appointments with a rheumatologist and the status of plaintiff's lupus. Plaintiff stated that at least one of her doctors said her lupus was in remission, and the ALJ noted that throughout the medical records it appeared that plaintiff's lupus was either stable or in remission, to which plaintiff agreed. The ALJ asked plaintiff about her shoulder impairments and plaintiff explained that she had not seen an orthopedist due to lack of insurance but that she had gone to physical therapy for her shoulder. The ALJ inquired about plaintiff's smoking and plaintiff explained that she smoked half a pack of cigarettes per day despite having asthma and her doctor's advice that she should quit. The ALJ acknowledged that plaintiff's weight affected her other medical conditions and asked plaintiff to tell her about plaintiff's depression. Plaintiff stated, “[i]t's affecting me because I get so upset, and I can't control myself. Like one - I go all the way of[f]. Like everything is to the tenth power. It's to the tenth power to where I can't like control myself. I'm learning in the class how to breathe and calm myself down, but it's just - it's so hard. It's just - it's hard.” Plaintiff went on to explain that though she does not get into physical altercations with people, she does occasionally engage in verbal altercations and gave as an example an episode that occurred in a McDonald's parking lot. After the hearing, the ALJ issued a written opinion finding plaintiff was not disabled and denying her applications for social security benefits. The Appeals Council declined to review the ALJ's decision, so it is the Agency's final decision. See Haynes, 416 F.3d at 626.

         II. ANALYSIS

         In reviewing an R&R from the magistrate judge, the court determines de novo any part of the magistrate judge's disposition to which there has been a proper objection. See Fed.R.Civ.P. 72(b)(3); 28 U.S.C. § 636(b)(1)(C); see also Mendez v. Republic Bank, 725 F.3d 651, 661 (7th Cir. 2013). This requires the court to conduct an independent review of the evidence and arguments without presumptive weight given to the magistrate judge's conclusion, but “[b]eing persuaded by the magistrate judge's reasoning, even after reviewing the case independently, is perfectly consistent with de novo review.” Mendez, 725 F.3d at 661. By reviewing the magistrate judge's recommendation de novo, the court will review the ALJ's decision directly. Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008). This court “will reverse an ALJ's denial of disability benefits only if the decision is not supported by substantial evidence or is based on an error of law.” Nelms v. Astrue, 553 F.3d 1093, 1097 (7th Cir. 2009); see 42 U.S.C. § 405(g). “Substantial evidence includes such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Nelms, 553 F.3d at 1097 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). This is a “very deferential standard of review.” Elder, 529 F.3d at 413 (“[E]ven if reasonable minds could differ concerning whether [plaintiff] is disabled, we must nevertheless affirm the ALJ's decision denying her claims if the decision is adequately supported.”).

         Under the Act, non-blind individuals under the age of 55 are considered disabled if they have an “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). To determine whether a claimant is disabled, an ALJ must conduct a mandatory five-step sequential analysis, which requires the ALJ to examine:

(1) whether the claimant is currently unemployed; (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment meets or equals one of the impairments listed by the Commissioner; (4) whether the claimant can perform [her] past work; and (5) whether the claimant is capable of performing work in the national economy.

Simila v. Astrue, 573 F.3d 503, 512-13 (7th Cir. 2009) (citing 20 C.F.R. § 404, Subpart P, Appendix 1); 20 C.F.R. § 416.920(a)-(g). To address steps four and five, the ALJ makes a determination of the claimant's residual functioning capacity, defined as “the most the claimant can still do despite [her] limitations, ” which is “based on all the claimant's impairments and all the relevant evidence in the record.” Simila, 573 F.3d at 513.

         In her written opinion, the ALJ clearly explained the applicable law and the steps she was required to take in making her decision. At step one, she concluded that plaintiff had not engaged in substantial gainful activity, and had thus been unemployed, since December 31, 2010, the alleged onset date, despite a work report indicating that plaintiff worked as a babysitter from 2002 to 2013. The ALJ credited plaintiff's testimony that she had ...


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