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Kay M. v. Commissioner of Social Security

United States District Court, S.D. Illinois

August 23, 2019

PATRICIA KAY M., [1] Plaintiff,
v.
COMMISSIONER of SOCIAL SECURITY, Defendant.

          MEMORANDUM AND ORDER

          DONALD G. WILKERSON, UNITED STATES MAGISTRATE JUDGE

         In accordance with 42 U.S.C. § 405(g), plaintiff, represented by counsel, seeks judicial review of the final agency decision denying her application for Disability Insurance Benefits (DIB) and Supplemental Income Security (SSI) benefits pursuant to 42 U.S.C. § 423.

         Procedural History

         Plaintiff applied for disability benefits in October 2014, alleging disability as of February 25, 2012. After holding an evidentiary hearing, an ALJ denied the application on December 27, 2017. (Tr. 84-95). The Appeals Council denied review, and the decision of the ALJ became the final agency decision. (Tr. 1). Administrative remedies have been exhausted and a timely complaint was filed in this Court.

         Issues Raised by Plaintiff

         Plaintiff raises the following points:

         1. New and material evidence was submitted to the Appeals Council which would have changed the ALJ's decision had he considered it.

         2. The ALJ erred by selectively considering and “cherry-picking” the evidence concerning plaintiff's degenerative disc disease and pain issues.

         3. The ALJ erred in rejecting the opinion of plaintiff's treating doctor.

         4. The ALJ erred in assessing the reliability of plaintiff's subjective allegations.

         Applicable Legal Standards

         To qualify for DIB or SSI, a claimant must be disabled within the meaning of the applicable statutes.[3] Under the Social Security Act, a person is disabled if she has an “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 twelve months.” 42 U.S.C. § 423(d)(1)(a).

         To determine whether a plaintiff is disabled, the ALJ considers the following five questions in order: (1) Is the plaintiff presently unemployed? (2) Does the plaintiff have a severe impairment? (3) Does the impairment meet or medically equal one of a list of specific impairments enumerated in the regulations? (4) Is the plaintiff unable to perform her former occupation? and (5) Is the plaintiff unable to perform any other work? 20 C.F.R. § 404.1520.

         An affirmative answer at either step three or step five leads to a finding that the plaintiff is disabled. A negative answer at any step, other than at step three, precludes a finding of disability. The plaintiff bears the burden of proof at steps one through four. Once the plaintiff shows an inability to perform past work, the burden then shifts to the Commissioner to show that there are jobs existing in significant numbers in the national economy which plaintiff can perform. Zurawski v. Halter, 245 F.3d 881, 886 (7th Cir. 2001).

         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. Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003). 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.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (internal citations omitted).

         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. Burmester v. Berryhill, 920 F.3d 507, 510 (7th Cir. 2019). 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 Decision of the ALJ

         The ALJ followed the five-step analytical framework described above. He determined that plaintiff had not worked at the level of substantial gainful activity since the alleged onset date. She was insured for DIB only through December 31, 2012.

         The ALJ found that plaintiff had severe impairments of degenerative disc disease, migraines, anxiety disorder, and depression.

         The ALJ found that plaintiff had the residual functional capacity (RFC) to perform work at the light exertional level limited to no climbing of ladders, ropes, or scaffolding; occasional climbing of ramps and stairs, balancing, stooping, kneeling, crouching, and crawling; and occasional pushing and/or pulling with her lower extremities. The ALJ also assessed mental limitations, but plaintiff raises no issue as to her mental impairments.

         Based on the testimony of a vocational expert, the ALJ concluded that plaintiff was not able to do her past work as a medical records clerk or medical receptionist, but she was able to do other jobs that exist in significant numbers in the national economy.

         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 plaintiff's arguments.

         1. Agency Forms

         Plaintiff was born in 1963 and was 54 years old on the date of the ALJ's decision. A prior claim had been denied in May 2013 at the Appeals Council level. There is no indication that plaintiff sought judicial review. (Tr. 340).

         In a Function Report submitted in December 2014, plaintiff said she could not work because she had three surgeries on her neck, had bone spurs on her shoulders and a herniated disc in her low back, and had migraines. (Tr. 380). She could only lift five pounds. Her legs hurt all the time. She could stand for ten minutes and walk for one hundred to two hundred feet. She could sit for fifteen to twenty minutes. When she had a migraine, she could not think because the pain was “so unbearable.” (Tr. 385). She was living with her parents and going through a divorce when she completed the report. (Tr. 387).

         In September 2015, she reported that her primary care doctor had referred her to Dr. Pfalzgraf, a “rheumatoid doctor, ” to see ...


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