United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Jeffrey Cole, Magistrate Judge
applied for Supplemental Security Income (“SSI”)
under Title XVI of the Social Security Act
(“Act”), 42 U.S.C. §§ 1381a, 1382c,
over five years ago. (Administrative Record (R.) 276-82). She
claimed that she became disabled as of March 15, 2013 (R.
276), due to asthma, anxiety, bipolar disorder, educable
mental handicap, and fibromyalgia. (R. 300). Over the ensuing
five years, plaintiff's application was denied at every
level of administrative review: initial, reconsideration,
administrative law judge (ALJ), and appeals council. It is
the ALJ's decision that is before the court for review.
See 20 C.F.R. §§404.955; 404.981. Plaintiff filed
suit under 42 U.S.C. § 405(g), and the parties consented
to the jurisdiction of a Magistrate Judge pursuant to 28
U.S.C. § 636(c) on September 25, 2017. [Dkt. #6]. The
case was reassigned to me on January 10, 2019. [Dkt. # 26].
Plaintiff asks the court to reverse and remand the
Commissioner's decision, while the Commissioner seeks an
order affirming the decision.
was born on July 6, 1978, and was just 36 when she applied
for SSI, and only 35 when she claims she became unable to
ever work again. (R. 276). She has a poor work record, with
the last job she held onto for more than a few weeks being a
telemarketer position from 1997 to 2001. (R. 310, 323). At an
earlier hearing on her previous claim for benefits, she
claimed she was fired from that job for arguing with her
boss. (R. 319). At the hearing on her current claim, she said
she was fired because she was being harassed by her
husband's sisters at work. (R. 45). At both hearings, she
testified the main reason she cannot work is because she does
not get along with others. (R. 45, 122). But, at her most
recent hearing, she also said it was because it bothers her
to sit or stand for long periods and she doesn't do well
around crowds of people. (R. 49).
medical record covering plaintiff's treatment for a
handful of impairments is, as is usually the case, large at
about 1000 pages. (R. 419-1429). But, as is also usually the
case, only a fraction of it is pertinent. In terms of medical
evidence, plaintiff's brief indicates that only about 30
pages of the medical record matters. (R. 594, 773, 934, 940,
956, 960, 962, 967, 970, 985, 996, 998, 1037, 1041-42,
1172-73, 1177, 1199, 1201, 1251-52, 1256, 1258, 1284, 1300,
1388-90, 1393, 1413-14). [Dkt. #14, at 5-10]. Plaintiff also
cites a few intelligence tests from plaintiff's
childhood. (R. 958, 1160, 1162-65, 1170). [Dkt. #14, at 8-9].
As this only amounts to about 3 or 4 percent of the record,
we will dispense with a tedious summary and discuss only
those doctor visits and medical findings that the parties
tell us matter to their arguments.
an administrative hearing - at which plaintiff, represented
by counsel, and a vocational expert testified - the ALJ
determined plaintiff was not disabled. The ALJ found that
plaintiff had a handful of severe impairments:
“fibromyalgia, asthma, obesity, and bipolar,
anxiety-related, and personality disorder.” (R. 16).
The ALJ noted that plaintiff's blood pressure was normal
to only slightly elevated; the lone report of peripheral
neuropathy was countered by other evidence; and that the
testing of plaintiff's intellectual capacity put her in
the low normal range. As such, these were non-severe
impairments. (R. 17). The ALJ summarized the medical evidence
(R. 18-21) and found that plaintiff did not have an
impairment or combination of impairments that met or equaled
a listed impairment presumed to be disabling. (R. 18-19). The
ALJ went on to determine that plaintiff's psychological
impairments caused moderate limitations in all areas of
functioning: daily activities; social functioning;
concentration, persistence, and pace. (R. 19-21). But,
because not one area was affected to a marked level, the ALJ
found that plaintiff's psychological impairments, either
singly or in combination, did not meet or equal a listed
impairment assumed to be disabling in the Commissioner's
listings. (R. 18, 21).
then announced the plaintiff's residual functional
capacity, a lengthy and labyrinthine finding commensurate
with the 1400-page record. The ALJ determined that plaintiff
could perform “light work . . except that she is
further limited to work requiring no climbing of ladders,
ropes, or scaffolds, no more than occasional climbing of
ramps and stairs, balancing, stooping, kneeling, crouching,
or crawling, no more than occasional exposure to and/or work
around fumes and other pulmonary irritants and hazards such
as moving machinery or unprotected heights.” (R. 22).
The ALJ continued, finding plaintiff could “perform
work which is comprised of simple routine tasks requiring no
more than short simple instructions and simple work-related
decision making with few work place changes, conveyor belt
work, or fast-paced work but can meet end of the day
production goals with occasional contact with the general
public that is of a brief, superficial, and incidental nature
and occasional interaction with supervisors and co-workers,
and can work in proximity to others but with no shared or
tandem tasks.” (R. 22).
also said that she found plaintiff's “medically
determinable impairments could reasonably be expected to
cause the alleged symptoms; however, [her] statements
concerning the intensity, persistence and limiting effects of
these symptoms are not entirely consistent with the medical
evidence and other evidence in the record for reasons
explained in this decision.” (R. 24). She discussed
plaintiff's allegations, noting the number of normal
examination results - in terms of strength, gait, range of
motion, etc. - that tended to undermine plaintiff's dire
allegations. (R. 23-27). The ALJ also noted some inconsistent
statements and lack of compliance with treatment. (R. 16,
23-27). The ALJ accorded weight to the opinion evidence from
the state agency reviewers and the medical expert who
testified at the administrative hearing as being generally
consistent with the overall record. (R. 28).
the ALJ - relying on the testimony of the vocational expert -
found that plaintiff was not capable of performing her past
relevant work as a telemarketer because it was semi-skilled,
thereby exceeding the limits of plaintiff's residual
functional capacity. (R. 28). Then the ALJ relied on the
vocational expert's testimony to find that, given her
residual functional capacity, plaintiff Smith could perform
the following jobs that exist in significant numbers in the
national economy: housekeeping cleaner (395, 000 jobs), hand
bander (335, 000 jobs), and scaling machine operator (39, 600
jobs). (R. 29). Accordingly, the ALJ concluded that Ms. Smith
was not disabled and was not disabled and not entitled to SSI
under the Act. (R. 29-30).
ALJ's decision is supported by substantial evidence, the
court on judicial review must uphold that decision, even if
the court might have decided the case differently in the
first instance. See 42 U.S.C. § 405(g). Substantial
evidence is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Biestek v. Berryhill, ___ U.S. ___, 139 S.Ct. 1148,
1152 (2019);Richardson v. Perales, 402 U.S. 389, 401
(1971); Jozefyk v. Berryhill, 923 F.3d 492, 496 (7th
Cir. 2019). To determine whether substantial evidence exists,
the court reviews the record as a whole but does not attempt
to substitute its judgment for the ALJ's by reweighing
the evidence, resolving material conflicts, or reconsidering
facts or the credibility of witnesses. Beardsley,
758 F.3d at 837. “Where conflicting evidence allows
reasonable minds to differ as to whether a claimant is
entitled to benefits, ” the court must defer to the
Commissioner's resolution of that conflict. Binion v.
Chater, 108 F.3d 780, 782 (7th Cir.1997); Schloesser
v. Berryhill, 870 F.3d 712, 717 (7th Cir. 2017).
the Seventh Circuit, the ALJ also has an obligation to build
an accurate and logical bridge between the evidence and the
result to afford the claimant meaningful judicial review of
the administrative findings. Varga v. Colvin, 794
F.3d 809, 813 (7th Cir. 2015); O'Connor-Spinner v.
Astrue, 627 F.3d 614, 618 (7th Cir.2010). The court has
to be able to trace the path of the ALJ's reasoning from
evidence to conclusion. Minnick v. Colvin, 775 F.3d
929, 938 (7th Cir. 2015); Jelinek v. Astrue, 662
F.3d 805, 812 (7th Cir. 2011). Even if the court agrees with
the ultimate result, the case must be remanded if the ALJ
fails in his or her obligation to build that logical bridge.
Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir.
1996)(“we cannot uphold a decision by an administrative
agency, any more than we can uphold a decision by a district
court, if, while there is enough evidence in the record to
support the decision, the reasons given by the trier of fact
do not build an accurate and logical bridge between the
evidence and the result.”); see also Spiva v.
Astrue, 628 F.3d 346, 353 (7th Cir. 2010)(“The
government seems to think that if it can find enough evidence
in the record to establish that the administrative law judge
might have reached the same result had she considered all the
evidence and evaluated it as the government's brief does,
it is a case of harmless error. But the fact that the
administrative law judge, had she considered the entire
record, might have reached the same result does not prove
that her failure to consider the evidence was harmless. Had
she considered it carefully, she might well have reached a
different conclusion.”). But, at the same time, the
Seventh Circuit has also called this requirement
“lax.” Elder v. Astrue, 529 F.3d 408,
415 (7th Cir. 2008); Berger v. Astrue, 516 F.3d 539,
545 (7th Cir. 2008).
the least, plaintiff has numerous nits to pick with the
ALJ's decision; so many that her brief has two sections
entitled, “IV. Argument . . . .” [Dkt. # 14, at
4, 8]. A fair portion of these two argument sections consists
of nothing more than contentions unsupported by any citation
to the evidence - such as, “there is sufficient
evidence to support that she drops things and would be unable
to perform the jobs listed in her decision” [Dkt. #14,
at 6] or “in 2009 a NCBHS report found she had an
inability to concentrate and poor recent memory” [Dkt.
# 14, at 6] or “all of her adult relatives have mental
illness so there is a genetic component” [Dkt. # 14, at
10], or “the ALJ did not know this [GAF score] simple
test” [Dkt. #14, at 11]. The list goes on.
“[U]nfortunately... saying so doesn't make it
so....” United States v. 5443 Suffield Terrace,
Skokie, Ill., 607 F.3d 504, 510 (7th Cir.2010). See
also, Madlock v. WEC Energy Group, Inc., 885 F.3d 465,
471 (7th Cir. 2018). Evidence mot partisan
insistence is what counts. Gaston v. Gosh, F.3d
(7th Cir 2019); Long v. Pfister, 874 F.3d
544, 555 (7th Cir. 2017); Dong Seok Yi v.
United States, 2015 WL 2127540, at *10 (N.D.Ga.
2015)(“Movant's current claim of innocence is not
supported by any evidence other than his current
plaintiff argues that the “most egregious error”
the ALJ made was commenting on a previous ALJ's finding
as to level of education: according to the plaintiff, this
means the ALJ was relying on facts outside the record and is
reason enough for remand. [Dkt. #14, at 4-5]. But, the
reference is from a previous hearing - in 2013 - on a
previous application that plaintiff never appealed once it
was denied. It has absolutely nothing to do with this case.
See Thomas v. Berryhill, 676 Fed.Appx. 588, 590 (7th
Cir. 2017)(“Res judicata bars relitigation of
already-decided administrative claims.”); see also
Phillips v. Astrue, 422 Fed.Appx. 528, 529 (7th Cir.
2011)(“To the extent [plaintiff] believes that the ALJ
needed to reconsider her previous applications, she is
incorrect; the doctrine of res judicata applies to them.);
Keith v. Barnhart, 473 F.3d 782, 784 (7th Cir.
2007)(“The doctrine of res judicata is explicitly
incorporated into administrative proceedings within the
Social Security Administration by 20 C.F.R. §
404.957(c)(1).”). If this is the most egregious error
plaintiff can identify, her claim is in trouble.
court, the “most egregious error” in this case
isn't found in the ALJ's decision, but found
throughout the plaintiff's brief. Relying on testimony
from a previous hearing that has nothing to do with the case
up for review is one thing. Failing to cite to evidence is
another thing. Judges are not required to sift through the
record without direction from counsel - especially a
1000-page record - and find evidentiary support for
contentions tossed out like salt strewn on an icy sidewalk in
another. See, e.g., Spitz v. Proven Winners N. Am.,
LLC, 759 F.3d 724, 731 (7th Cir. 2014)(lawyers cannot
expect judges to play archaeologist with the record);
Bunn v. Fed. Deposit Ins. Corp. for Valley Bank
Illinois, 908 F.3d 290, 297 (7th Cir.
2018)(“As has become ‘axiomatic' in
our Circuit, ‘[j]udges are not like pigs, hunting for
truffles buried in' the ...