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Marilyn J. M. v. Commissioner of Social Security

United States District Court, S.D. Illinois

July 11, 2018

MARILYN J. M., [1] Petitioner,



         In 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.

         Procedural History

         Plaintiff 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).

         Plaintiff's 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.

         Issues Raised by Plaintiff

         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.

         Applicable Legal Standards

         To qualify for DIB or SSI benefits, a claimant must be disabled within the meaning of the applicable statutes and regulations.[3] 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).

         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.

         Social 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 Cir. 2011).

         Stated 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. 1992).

         If the 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).

         This 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).

         In 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 cited therein.

         The Decision of the ALJ

         ALJ Bock followed the five-step analytical framework described above. ALJ Bock found plaintiff was insured through December 31, 2009, [4] 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).

         ALJ 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 ...

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