United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
CLIFFORD J. PROUD, UNITED STATES MAGISTRATE JUDGE.
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.
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).
Raised by Plaintiff
asserts the ALJ's Residual Functional Capacity assessment
was erroneous because the ALJ:
• “played doctor” in analyzing the medical
• “cherry-picked” from the record,
• erroneously disregarded a state agency
• erred in assessing Plaintiff's complaints of pain,
• impermissibly discredited the testimony of
qualify for SSI and/or DIB, a claimant must be disabled
within the meaning of the applicable statutes. 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 Appeals has explained this process as
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 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). 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.”).
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
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.
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.
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).
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).
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).
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 ...