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Wrobel v. Berryhill

United States District Court, N.D. Illinois, Eastern Division

July 25, 2018

DAVID J. WROBEL, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.


          Susan E. Cox U.S. Magistrate Judge.

         Plaintiff 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.

         I. Background

         a. Procedural History

         On 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.[1] (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).

         b. Plaintiff's Background

         On 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).

         On 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).

         On 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.[2] (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).

         Finally, 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.

         c. The ALJ's Decision

         The ALJ 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).

         At step 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).

         II. Social Security Regulations and Standard of Review

         The 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 Cir. 1984).

         In 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).

         III. ...

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