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Victor B. v. Commissioner of Social Security

United States District Court, S.D. Illinois

July 12, 2018

VICTOR B.[1] Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          MEMORANDUM AND ORDER

          CLIFFORD J. PROUD, UNITED STATES MAGISTRATE JUDGE.

         In accordance with 42 U.S.C. § 405(g), plaintiff Victor B. (Plaintiff) seeks judicial review of the final agency decision denying his application for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) pursuant to 42 U.S.C. § 423.

         Procedural History

         Plaintiff applied for DIB and SSI on March 11, 2013, alleging a disability onset date of August 4, 2011. (Tr. 203-13). The Agency denied Plaintiff's application at the initial level, and again upon reconsideration. (Tr. 92-138). After conducting an evidentiary hearing, (Tr. 28-91), Administrative Law Judge (ALJ) Joseph L. Heimann also reached an unfavorable decision. (Tr. 9-22). The Appeals Council denied Plaintiff's request for review, rendering the ALJ's decision the final agency decision. (Tr. 1-3). Plaintiff exhausted his administrative remedies and filed a timely Complaint with this Court. (Doc. 1).

         Issues Raised by Plaintiff

         Plaintiff asserts the ALJ's Residual Functional Capacity assessment was erroneous because the ALJ:

• “played doctor” in analyzing the medical evidence,
• “cherry-picked” from the record,
• erroneously disregarded a state agency consultant's opinion,
• erred in assessing Plaintiff's complaints of pain, and
• impermissibly discredited the testimony of Plaintiff's sister.

         Applicable Legal Standards

         To qualify for SSI and/or DIB, a claimant must be disabled within the meaning of the applicable statutes.[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 Appeals 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 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). See also Zurawski v. Halter, 245 F.3d 881, 886 (7th Cir. 2001) (Under the five-step evaluation, an “affirmative answer leads either to the next step, or, on Steps 3 and 5, to a finding that the claimant is disabled. . . . If a claimant reaches step 5, the burden shifts to the ALJ to establish that the claimant is capable of performing work in the national economy.”).

         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 ALJ's Decision

         ALJ Heimann followed the five-step analytical framework set forth above. (Tr. 9-22). He determined that Plaintiff met the insured status requirements through December 31, 2016 and had not engaged in substantial activity since August 4, 2011, the alleged onset date. (Tr. 11). Plaintiff had severe impairments of status post tendon rupture repair of the left ankle with retrocalcaneal bursitis of the left ankle, and lumbar degenerative disc disease. (Tr. 12). The ALJ opined Plaintiff had the RFC to perform light work with several additional limitations, (Tr. 14), and was unable to perform any past relevant work, (Tr. 20). However, Plaintiff was able to perform other jobs that existed in significant numbers in the national economy and, therefore, was not disabled. (Tr. 20-21).

         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.

         1. Agency Forms

         In his agency reports from 2013, plaintiff alleged that the following conditions limited his ability to work: retrocalcaneal bursitis; depression; residuals of a left Achilles tendon tear and three associated surgeries; chronic severe pain and swelling in his lower left leg, ankle, and heel; and lumbago. (Tr. 237).

         Plaintiff's highest degree of education was twelfth grade. He also graduated from the Missouri Law Enforcement Academy. (Tr. 238). He previously worked as a corrections officer, custodian, railroad conductor, security officer, and truck driver. (Tr. 239). In August 2011, Plaintiff was injured at work and underwent three surgeries. He participated in therapy for a total of nine months. Plaintiff experienced constant pain in his lower left heel and ankle. (Tr. 277).

         Plaintiff indicated that he could not walk longer than one to two hours without excruciating pain in his lower left ankle and heel. (Tr. 270). He could not stand for long periods, jog, or ride a bike without experiencing pain. His pain sometimes interfered with his sleep. (Tr. 271). He tried to avoid stairs, lifting, squatting, and kneeling, because those activities irritated his Achilles injury and his lower ankle and heel. He could walk for about thirty minutes before needing to rest five to ten minutes at a time. (Tr. 275). Plaintiff used prosthetics and a cane, which were prescribed by his doctor after his third surgery in November 2011. He used them “as needed, ” which was mostly after he was on his feet for longer than a couple of hours. (Tr. 276).

         Plaintiff's girlfriend prepared all of his meals, but he completed laundry and ironing once a week. (Tr. 272). He did not do any other house or yard work because it put too much pressure on his lower left leg and ankle. (Tr. 273). Plaintiff could drive and ride in a car. (Tr. 273). He seldom grocery shopped due to financial problems and “constant annoying pain.” (Tr. 273). Plaintiff ...


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