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Heather M. v. Berryhill

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

June 5, 2019

HEATHER M., [1] Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Jeffrey Cole, Magistrate Judge

         Plaintiff 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.


         Plaintiff 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).

         The 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.

         After 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).

         The ALJ 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).

         The ALJ 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).

         Next, 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).


         If the 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).

         But, in 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).



         To say 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 assertion.”).

         Oddly, 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.

         For the 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 ...

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