United States District Court, N.D. Illinois, Eastern Division
DAVID J. WROBEL, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
MEMORANDUM OPINION AND ORDER
E. Cox U.S. Magistrate Judge.
David J. Wrobel (“Plaintiff”) appeals the
decision of the Commissioner of the Social Security
Administration (“Commissioner”) denying his
disability benefits under Title II of the Social Security
Act. The Parties have filed cross motions for summary
judgment. For the reasons detailed below, the
Commissioner's Motion for Summary Judgment (dkt. 19) is
granted and Plaintiff's motion (dkt. 12) is denied.
March 19, 2013, Plaintiff applied for Title II disability
insurance benefits, alleging disability since December 28,
2011. (Administrative Record (“R.”) 235-38). On
March 20, 2013, Plaintiff changed his disability onset date
to December 30, 2011. (R. 242-43). Plaintiff's claim was
denied initially and again at the reconsideration stage.
Plaintiff timely requested an administrative hearing, which
was held before Administrative Law Judge (“ALJ”)
Karen Sayon on August 24, 2015 and November 23,
2015. (R. 45-53, 56-91, 133-34). Plaintiff was
represented by counsel, and a Vocational Expert
(“VE”) testified during the hearing. (R. 56-91).
On January 7, 2016, the ALJ issued a written decision denying
Plaintiff disability benefits. (R. 20-32). On March 3, 2017,
the Appeals Council denied Plaintiff's appeal, and the
ALJ's decision became the final decision of the
Commissioner. (R. 1-6). Plaintiff filed the instant action on
April 26, 2017. (Dkt. 1).
December 30, 2011, the alleged disability onset date,
Plaintiff injured his right shoulder while driving a forklift
at work. (R. 476). He was diagnosed with a rotator cuff
partial thickness tear, impingement, bicep tendonitis, and AC
joint pain. (R 481). In April 2012, Plaintiff underwent
surgery on the shoulder because he was still reporting neck
pain resulting in radicular symptoms bilaterally and weakness
in the hands bilaterally. (R. 444-46, 462-65). By September
24, 2012, the treatment records indicate that Plaintiff's
symptoms had completely resolved and he had good functioning
upon physical examination (R. 444-46). By November 27, 2012,
Plaintiff exhibited only minor deficits, and he reported
during a September 10, 2012, physical therapy session that
his shoulder felt “wonderful.” (R. 371, 433). By
mid-2012 he was able to golf. (R. 356, 383, 415; see
also, fn. 3, infra, discussing the frequency of
Plaintiff's self-reports of golf to his treating
physicians). On December 17, 2012, he was discharged from
physical therapy with his right shoulder at 90 percent of
normal with the ability able to perform all activities of
daily living with no complaints. (R. 398, 402).
January 8, 2013, Plaintiff exhibited excellent range of
motion in his shoulder. (R. 636). On that same date, an
unsigned Work Status Report was issued that states that as of
January 9, 2013, Plaintiff would be able to “return to
regular work/activity with no restrictions, ” but also
states that Plaintiff had “no restrictions from
shoulder standpoint, [but] permanent restrictions from
cervical spine.” (R. 426, 494, 579). This Work Status
Report, however, does not specify what the “permanent
restrictions” are. Id. During a Vocational
Rehabilitation Evaluation on July 30, 2013, Plaintiff
reported that he experienced fatigue from medications, that
he could only stand for five minutes due to neck and back
pain, and that he had problems with losing grip in his hands.
(R. 619). On September 17, 2013, Plaintiff underwent a
left-side cervical radiofrequency ablation with his pain
management physician, Anas Alzoobi, M.D., because
Plaintiff's pain had recently returned; Plaintiff had
good results with this procedure on a prior occasion, where
his pain was abated for six to seven months. (R. 628). On
October 8, 2013, Plaintiff reported only “modest
pain” after his recent radiofrequency ablation
procedure, yet Dr. Alzoobi indicated that Plaintiff had
severe neck pain, discogenic disease, spinal stenosis, and
status post cervical fusion with aggravation from a work
injury. (R. 627). On September 16, 2014, Plaintiff continued
to report chronic neck pain with radiation to his right upper
extremity, and underwent an epidural steroid injection. (R.
730-31). On January 6, 2015, Plaintiff underwent cervical
spine surgery. (R. 757-59).
October 22, 2015, Plaintiff presented to the Presence Saint
Joseph Medical Center emergency department with complaints of
low back and left hip pain that began seven days prior while
doing some work in the yard and some lifting. (R. 837-42). At
that time, Plaintiff also reported that he had been to the
Silver Cross emergency department two days prior for the same
complaint and was told his CT scans were
normal. (R. 837). The X-rays from his October 22,
2015 visit showed extensive lumbar spondylosis with moderate
facet arthritis at the L4-L5 level, and Plaintiff was
diagnosed with a lumbar spine strain. (R. 838, 841).
we must also note that during October 2013, Plaintiff
attended four counseling sessions through Crossroads
Counseling Services during which Dawn Kusinski, Psy.D., noted
that Plaintiff was depressed with reported suicidal ideation
secondary to constant worries about money and neck pain (R.
699-723). These sessions constitute the only formal mental
health treatment Plaintiff received. On January 24, 2014,
Plaintiff underwent a mental status examination with a state
agency consultant, during which Plaintiff reported that he
had experienced depression due to pain and legal battles over
workmen's compensation benefits. (R. 726-29). Plaintiff
acknowledged considering suicide when his pain was very bad,
but reported that he had made no attempts and had not felt
that way in a few weeks. Id. Plaintiff's mental
status examination was otherwise unremarkable, as his
concentration and attention appeared to be within normal
limits; his fund of knowledge was grossly intact; he had no
difficulty performing calculations; and he was fully
oriented. Id. Ultimately, John Brauer, Psy.D.,
diagnosed Plaintiff with an adjustment disorder with
depressed mood. Id.
The ALJ's Decision
issued a written decision on January 7, 2016. (R. 20-32). The
ALJ found that Plaintiff met the insured status requirements
of the Act through September 30, 2016. (R. 22).
one, the ALJ found that although Plaintiff had some earnings
post-December 30, 2011, he had not engaged in substantial
gainful activity from the alleged onset date of December 30,
2011 through his DLI. Id. At step two, the ALJ
concluded that Plaintiff had the severe impairments of:
cervical stenosis and degenerative disc disease; lumbar
degenerative disc disease; and obesity. Id.
Plaintiff's right shoulder impairment and his adjustment
disorder were determined to be non-severe. (R. 22-23). At
step three, the ALJ concluded Plaintiff did not have an
impairment that met that met or equaled the severity of one
of the listed impairments, including Listing 1.04, of 20 CFR
Part 404, Subpart P, Appendix 1. (R. 25). Prior to step four,
the ALJ found that through his DLI, Plaintiff maintained the
residual functional capacity (“RFC”) to perform
light work as defined in 20 CFR 404.1567(b) except occasional
climbing and kneeling, and frequent but not constant
stooping. (R. 26). At step four, the ALJ concluded Plaintiff
was capable of performing his past relevant work as a sales
representative. (R. 31). Because of this determination, the
ALJ found Plaintiff not disabled under the Act. (R. 32).
Social Security Regulations and Standard of Review
Social Security Act requires all applicants to prove they are
disabled as of their date last insured to be eligible for
disability insurance benefits. ALJs are required to follow a
sequential five-step test to assess whether a claimant is
legally disabled. The ALJ must determine: (1) whether the
claimant is currently engaged in substantial gainful
activity; (2) whether the claimant has a severe impairment;
and (3) whether the severe impairment meets or equals one
considered conclusively disabling such that the claimant is
impeded from performing basic work-related activities. 20
C.F.R. § 404.1520; 20 C.F.R. §
416.920(a)(4)(i)-(v). If the impairment(s) does meet or equal
this standard, the inquiry is over and the claimant is
disabled. 20 C.F.R. § 416.920(a)(4). If not, the
evaluation continues and the ALJ must determine (4) whether
the claimant is capable of performing his past relevant work.
Cannon v. Harris, 651 F.2d 513, 517 (7th Cir. 1981).
If not, the ALJ must (5) consider the claimant's age,
education, and prior work experience and evaluate whether she
is able to engage in another type of work existing in a
significant number of jobs in the national economy.
Id. At the fourth and fifth steps of the inquiry,
the ALJ is required to evaluate the claimant's RFC in
calculating which work-related activities she is capable of
performing given his limitations. Young v. Barnhart,
362 F.3d 995, 1000 (7th Cir. 2004). In the final step, the
burden shifts to the Commissioner to show there are
significant jobs available that the claimant is able to
perform. Smith v. Schweiker, 735 F.2d 267, 270 (7th
disability insurance benefits cases, a court's scope of
review is limited to deciding whether the final decision of
the Commissioner of Social Security is based upon substantial
evidence and the proper legal criteria. Scheck v.
Barnhart, 357 F.3d 697, 699 (7th Cir. 2004). Substantial
evidence exists when a “reasonable mind might accept
[the evidence] as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971);
Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir.
2001). While reviewing a commissioner's decision, the
Court may not “reweigh evidence, resolve conflicts in
the record, decide questions of credibility, or substitute
[its] own judgment for that of the Commissioner.”
Young v. Barnhart, 362 F.3d at 1001. Although the
Court reviews the ALJ's decision deferentially, the ALJ
must nevertheless “build an accurate and logical
bridge” between the evidence and his conclusion.
Steele v. Barnhart, 290 F.3d 936, 941 (7th Cir.
2002) (internal citation omitted). The Court cannot let the
Commissioner's decision stand if the decision lacks
sufficient evidentiary support, an adequate discussion of the
issues, or is undermined by legal error. Lopez ex rel.
Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003);
see also, 42 U.S.C.§ 405(g).