United States District Court, S.D. Illinois
MARJORIE I. B., Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
MEMORANDUM AND ORDER
PHIL GILBERT UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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 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
2. The ALJ erred by basing his RFC determination on an
impermissible, illogical, and speculative credibility
3. The ALJ erred by failing to address important evidence
that contradicts his finding plaintiff was not disabled prior
to February 5, 2010.
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 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
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.
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
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.
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
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).
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).
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).
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