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Marjorie I. B. v. Commissioner of Social Security

United States District Court, S.D. Illinois

June 19, 2018

MARJORIE I. B., Plaintiff,



         In accordance with 42 U.S.C. § 405(g), plaintiff, Marjorie I. B., seeks judicial review of the final agency decision denying her application for Disability Insurance Benefits (DIB) pursuant to 42 U.S.C. § 423.

         Procedural History

         This case has an incredibly long duration approaching ten years from the alleged onset date, and nearly eight years since plaintiff filed for benefits. In that time period, plaintiff has had three evidentiary hearings, a successful appeal to this Court, a successful appeal to the Appeals Council, and has now returned to this Court for review.

         Plaintiff first applied for benefits in September 2010, alleging disability beginning on August 14, 2008. (Tr. 13). After holding an evidentiary hearing, ALJ Michael Scurry determined plaintiff became disabled beginning February 5, 2010 (Tr. 13-23). On December 17, 2013, the Appeals Council denied plaintiff's request for review, and ALJ Scurry's decision became the first final agency decision. (Tr. 767). Administrative remedies were exhausted and plaintiff timely filed her complaint with this Court on February 6, 2014.

         In January 2015, upon this Court's review, ALJ Scurry's decision was reversed and remanded to the Commissioner for rehearing and reconsideration of the evidence. Subsequently, plaintiff had a second evidentiary hearing where ALJ Scurry again determined plaintiff was not disabled from August 14, 2008, through February 4, 2010. (Tr. 817-30). On September 11, 2015, plaintiff timely filed written exceptions with the Appeals Council. (Tr. 838). On May 23, 2016, the Appeals Council determined ALJ Scurry's evaluation of Plaintiff's symptoms was not compliant with this Court's previous remand order. (Tr. 838). The Appeals Council remanded ALJ Scurry's decision and directed that a different ALJ preside over plaintiff's case. (Tr. 838-40).

         On September 14, 2016, plaintiff had her third evidentiary hearing in front of a new ALJ, Matthias D. Onderak. ALJ Onderak issued his decision on October 11, 2016, determining plaintiff was not disabled from August 14, 2008, through February 4, 2010. (Tr. 705-20). Plaintiff timely filed written exceptions dated October 13, 2016, with the Appeals Council. (Tr. 997-1000). On April 28, 2017, the Appeals Council denied review, and ALJ Onderak's decision became the second and most recent final agency decision. (Tr. 695-701). Plaintiff exhausted administrative remedies and has filed a timely complaint with this Court.

         Plaintiff's Arguments

Plaintiff makes the following arguments:

1. The ALJ erred in his analysis of the opinion evidence by (a) failing to comply with SSR 83-20 and this Court's 2015 Order; (b) relying on state agency consulting physicians; (c) engaging in flawed analysis of Dr. Wilkey's opinion; and (d) relying illogically upon objective evidence.
2. The ALJ erred by basing his RFC determination on an impermissible, illogical, and speculative credibility finding.
3. The ALJ erred by failing to address important evidence that contradicts his finding plaintiff was not disabled prior to February 5, 2010.

         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 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 Onderak followed the five-step analytical framework described above. He found plaintiff had not engaged in substantial gainful activity from August 14, 2008, through February 4, 2010. He found plaintiff had two severe impairments: (1) lumbar degenerative disc disease with L5-S1 disc herniation, status-post fusion; and (2) obesity. However, ALJ Onderak found that her impairments did not meet or medically equal the severity of a listed impairment.

         ALJ Onderak found the same residual functional capacity (RFC) as the previous ALJ in that plaintiff had the RFC to perform work at the light level prior to February 5, 2010. (Tr. 16-21). From August 14, 2008, through February 4, 2010, ALJ Onderak did note her ability to substantially perform all requirements of this level work was impeded by additional limitations.

         ALJ Onderak relied on the Vocational Expert's (VE) opinion provided at plaintiff's first evidentiary hearing in July 2012 to determine plaintiff could have performed other jobs which existed in significant numbers in the national economy from August 14, 2008, through February 4, 2010. Based on the ALJ's RFC determination and the Vocational Expert's 2012 testimony, the ALJ concluded that the plaintiff was not disabled from August 14, 2008, through February 4, 2010.

         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 by plaintiff and is confined to the relevant time period.

         1. Agency Forms

         Plaintiff was born in 1964, and was forty-four years old on August 14, 2008, the amended alleged onset date. (Tr. 107). She was insured for DIB through December 31, 2012. (Tr. 134).

         Plaintiff was five feet, five inches tall and weighed two hundred and eighty pounds at the time of her application. (Tr. 146). Prior to applying for DIB, plaintiff previously worked as a cook at a nursing home and at a county jail. (Tr. 147). She indicated several conditions that limit her ability to work: back injury; obesity; diabetes; high blood pressure; and depression, and that her conditions cause her pain or other symptoms. (Tr. 146).

         2. Evidentiary Hearing

         Plaintiff was represented by an attorney at the third evidentiary hearing on September 14, 2016. (Tr. 727). ALJ Onderak swore in plaintiff and informed her he would focus on “…the dates prior to you actually filing for disability, ” August 14, 2008, through February 4, 2010. (Tr. 732). Then, plaintiff's attorney addressed the ALJ and explained his client had twice testified under oath regarding the dates in which the ALJ wished to focus. He informed ALJ Onderak plaintiff reviewed her prior testimony and wished to stand on it, rather than provide duplicative or inaccurate testimony. Plaintiff was more confident in the accuracy of her earlier testimony because it was provided earlier in time. Her attorney explained if the ALJ had new areas to discuss or ask her, then plaintiff would certainly provide testimony to the best of her ability. (Tr. 732-33).

         ALJ Onderak's questioning focused on why plaintiff “finally” decided to file for disability in September 2010. She explained she filed because she could not go back to work. (Tr. 734-35). ALJ Onderak attempted to get to a “reason” plaintiff filed at that “particular time, ” and he specifically asked plaintiff whether anyone told her she would not be able to work again, either before she filed or around the time she filed. (Tr. 735). After plaintiff said she could not remember ...

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