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Daesch D. D. v. Commissioner of Social Security

United States District Court, S.D. Illinois

July 17, 2018

TAMMIE D. D.[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), Tammie D. D. (Plaintiff) seeks judicial review of the final agency decision denying her 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 June 21, 2013, alleging a disability onset date of March 21, 2013. (Tr. 204-16). Plaintiff's application was denied at the initial level and again upon reconsideration. (Tr. 112-13; 137-40). Plaintiff requested an evidentiary hearing, which Administrative Law Judge (ALJ) Joseph Heimann conducted on July 21, 2016. (Tr. 36-95). ALJ Heimann reached an unfavorable decision on September 30, 2016. (Tr. 13-24). The Appeals Council denied Plaintiff's request for review, rendering the ALJ's decision the final agency decision. (Tr. 1-3). Plaintiff exhausted her administrative remedies and filed a timely Complaint in this Court. (Doc. 1).

         Issues Raised by Plaintiff

         Plaintiff asserts the ALJ's disability determination was erroneous because he failed to articulate how long Plaintiff could walk throughout the workday; did not properly evaluate medical evidence in determining her RFC; and omitted Plaintiff's anxiety diagnosis from his analysis at Step 2. Alternatively, Plaintiff asserts the ALJ should have found her disabled for a closed period.

         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 determined Plaintiff met the insured status requirements through June 30, 2017 and had not engaged in substantial gainful activity since March 21, 2013, the alleged onset date. (Tr. 15). Plaintiff had severe impairments of status post-bilateral carpal tunnel syndrome; emphysema; status post right hip replacement; degenerative joint disease of the left knee with meniscus tear; osteoporosis; and right heel spur. (Tr. 15-16). Plaintiff had the RFC to perform light work, except that she could only “stand and walk” four hours out of an eight-hour workday. Plaintiff was additionally limited to occasionally performing foot control operations bilaterally. Moreover, she could never climb ladders, ropes, or scaffolds, kneel, or crawl. Plaintiff could occasionally climb ramps and stairs, stoop, and crouch, and had to avoid exposure to concentrated levels of irritants. (Tr. 17). The ALJ determined Plaintiff could perform past relevant work and was therefore not disabled. (Tr. 23-24).

         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 her agency forms, Plaintiff stated heel spurs, heart disease, a back injury, depression, emphysema, and carpel tunnel syndrome limited her ability to work. (Tr. 236). Plaintiff was most recently employed as a cashier at a grocery store. (Tr. 237). She alleged she was unable to continue her employment because it required her to be on her feet at all times. She experienced extreme pain in her feet, ankles, legs, back, hips, hands, and wrists and was “useless” after work. (Tr. 269). On an average day, Plaintiff had breakfast and rested before work, with her legs elevated. On days she did not work, she rested with Icy Hot cream on her feet, legs, back, and neck. Pain kept her awake at night. She had difficulty dressing and using stairs, and kept a chair in her bathroom to get in and out of her bathtub. (Tr. 270). Plaintiff could not prepare meals because it hurt to stand. (Tr. 271). She did laundry once each week and could grocery shop but did not do any other house or yard work because it was too painful. (Tr. 271-72). Plaintiff was able to drive. Her hobbies included reading and watching television. (Tr. 273). Plaintiff could walk a half a block before needing to stop and rest. She could pay attention for fifteen minutes, followed spoken and written instructions fairly well, got along with authority figures “fine, ” and handled stress fairly well, unless she was in pain. She used a cane to do laundry but it was not prescribed to her by a physician. (Tr. 274-75). Plaintiff stated she could not sit for even two hours because of pain. (Tr. 279).

         2. Evidentiary Hearing

         ALJ Heimann conducted an evidentiary hearing in July 2016, at which Plaintiff was represented by counsel. (Tr. 39). Before commencing the hearing, the ALJ went over the exhibits and medical records with Plaintiff and her counsel. (Tr. 40-42). The ALJ asked, “Counsel, you're satisfied the record is complete?” Plaintiff's counsel responded, “No objection. I'm awaiting records from Dr. Morton, who's an orthopedic doctor, who had replaced her hip ...


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