United States District Court, S.D. Illinois
MARILYN J. M.,  Petitioner,
COMMISSIONER OF SOCIAL SECURITY, Respondent.
MEMORANDUM AND ORDER
CLIFFORD J. PROUD, UNITED STATES MAGISRATE JUDGE
accordance with 42 U.S.C. § 405(g), plaintiff Marilyn J.
M., represented by counsel, seeks judicial review of the
final agency decision denying her application for Disability
Insurance Benefits (DIB) and Supplemental Security Income
(SSI) benefits pursuant to 42 U.S.C. § 423.
applied for benefits on June 3, 2010, alleging disability
beginning on March 14, 2004. (Tr. 230). Plaintiff was denied
benefits, and requested an evidentiary hearing, which was
held on November 8, 2012. A supplemental hearing was held in
July 2013. Administrative Law Judge (ALJ) Joseph W. Warzycki
denied plaintiff's application on August 5, 2013. (Tr.
14-26). The Appeals Council denied review, and ALJ
Warzycki's decision became the first final agency
decision. (Tr. 1-6). Plaintiff filed her first complaint with
this Court in December 2014. Upon a Joint Motion for Remand,
this Court reversed and remanded the agency's first final
decision in August 2015. (Tr. 1227-1233).
third evidentiary hearing was held on July 13, 2016, by ALJ
George M. Bock. Again, plaintiff's application for
benefits was denied. (Tr. 1149-1169). Plaintiff requested
review by the Appeals Council; however, it again declined
jurisdiction. (Tr. 1136-1142). Thus, administrative remedies
were exhausted making ALJ Bock's denial the final agency
decision. Plaintiff filed a timely complaint with this Court.
Raised by Plaintiff
raises the following points:
1. The ALJ committed reversible error when he failed to
account for plaintiff's moderate impairment in
concentration, persistence, or pace (CPP) in the residual
functional capacity (RFC) finding.
2. The ALJ adopted vocational expert (VE) opinions that
lacked a reliable basis resulting in the ALJ's finding at
step five to be unsupported by substantial evidence.
qualify for DIB or SSI benefits, a claimant must be disabled
within the meaning of the applicable statutes and
regulations. For these purposes, “disabled”
means 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).
“physical or mental impairment” is an impairment
resulting from anatomical, physiological, or psychological
abnormalities which are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques. 42 U.S.C.
§ 423(d)(3). “Substantial gainful activity”
is work activity that involves doing significant physical or
mental activities, and that is done for pay or profit. 20
C.F.R. § 404.1572.
Security regulations set forth a sequential five-step inquiry
to determine whether a claimant is disabled. The Seventh
Circuit Court of has explained this process as follows:
The first step considers whether the applicant is engaging in
substantial gainful activity. The second step evaluates
whether an alleged physical or mental impairment is severe,
medically determinable, and meets a durational requirement.
The third step compares the impairment to a list of
impairments that are considered conclusively disabling. If
the impairment meets or equals one of the listed impairments,
then the applicant is considered disabled; if the impairment
does not meet or equal a listed impairment, then the
evaluation continues. The fourth step assesses an
applicant's residual functional capacity (RFC) and
ability to engage in past relevant work. If an applicant can
engage in past relevant work, he is not disabled. The fifth
step assesses the applicant's RFC, as well as his age,
education, and work experience to determine whether the
applicant can engage in other work. If the applicant can
engage in other work, he is not disabled.
Weatherbee v. Astrue, 649 F.3d 565, 568-569 (7th
another way, it must be determined: (1) whether the claimant
is Appeals presently unemployed; (2) whether the claimant has
an impairment or combination of impairments that is serious;
(3) whether the impairments meet or equal one of the listed
impairments acknowledged to be conclusively disabling; (4)
whether the claimant can perform past relevant work; and (5)
whether the claimant is capable of performing any work within
the economy, given his or her age, education and work
experience. 20 C.F.R. § 404.1520; Simila v.
Astrue, 573 F.3d 503, 512-513 (7th Cir. 2009);
Schroeter v. Sullivan, 977 F.2d 391, 393 (7th Cir.
answer at steps one and two is “yes, ” the
claimant will automatically be found disabled if he or she
suffers from a listed impairment, determined at step three.
If the claimant does not have a listed impairment at step
three, and cannot perform his or her past work (step four),
the burden shifts to the Commissioner at step five to show
that the claimant can perform some other job. Rhoderick
v. Heckler, 737 F.2d 714, 715 (7th Cir. 1984).
Court reviews the Commissioner's decision to ensure that
the decision is supported by substantial evidence and that no
mistakes of law were made. It is important to recognize that
the scope of review is limited. “The findings of the
Commissioner of Social Security as to any fact, if supported
by substantial evidence, shall be conclusive. . . .” 42
U.S.C. § 405(g). Thus, this Court must determine not
whether plaintiff was, in fact, disabled at the relevant
time, but whether the ALJ's findings were supported by
substantial evidence and whether any errors of law were made.
See, Books v. Chater, 91 F.3d 972, 977-78 (7th Cir.
1996) (citing Diaz v. Chater, 55 F.3d 300, 306 (7th
Cir. 1995)). This Court uses the Supreme Court's
definition of substantial evidence, i.e., “such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971).
reviewing for “substantial evidence, ” the entire
administrative record is taken into consideration, but this
Court 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). However, while judicial
review is deferential, it is not abject; this Court does not
act as a rubber stamp for the Commissioner. See, Parker
v. Astrue, 597 F.3d 920, 921 (7th Cir. 2010), and cases
Decision of the ALJ
Bock followed the five-step analytical framework described
above. ALJ Bock found plaintiff was insured through December
31, 2009,  and he determined that plaintiff had not
engaged in substantial gainful activity (SGA) since March 14,
2004. The ALJ found plaintiff had severe impairments of mild
degenerative disc disease of the lumbar spine, obesity,
degenerative disc disease of the cervical spine status post
fusion and revision surgeries in 2005 and 2006, depression,
and anxiety. ALJ Bock found plaintiff had moderate
limitations in social functioning and in maintaining CPP.
(Tr. 1153). However, ALJ Bock determined none of
plaintiff's impairments met or equaled the severity of a
listed impairment. (Tr. 1152).
Bock found plaintiff had the RFC to perform work at the light
exertional level with some physical and mental limitations.
The mental limitations were to perform simple, repetitive,
and unskilled work that does not involve production pace;
never interact with the ...