Brown v. Commissioner of Social Security

Filing 25

ORDER and OPINION entered by Magistrate Judge Jonathan E. Hawley on 8/5/15. In light of the foregoing, the ALJ did not err in denying Brown's claims for benefits. This Court affirms the Commissioner's denial of benefits, and therefore DENIE S Brown's Motion for Summary Judgment 17 and GRANTS the Commissioners Motion for Summary Affirmance 22 .In light of the parties' consent, any appeal of this ruling must be made directly to the Seventh Circuit Court of Appeals within the time period prescribed by the Federal Rules of Appellate Procedure. It is so ordered. (See Full Written Order and Opinion). CASE IS TERMINATED.(VP, ilcd)

E-FILED

Wednesday, 05 August, 2015 05:06:37 PM
Clerk, U.S. District Court, ILCD

IN THE
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
JACQUELINE D. BROWN,
Plaintiff,
v.

Case No. 1:14-cv-01078-JEH

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
Order and Opinion
Now before the Court is the Plaintiff’s, Jacqueline D. Brown’s, Motion for
Summary Judgment (Doc. 17), the Defendant’s, Commissioner of Social
Security’s, Motion for Summary Affirmance (Doc. 22), and the Plaintiff’s Reply 1
(Doc. 24). For the reasons stated herein, the Court DENIES the Plaintiff’s Motion
for Summary Judgment and GRANTS the Defendant’s Motion for Summary
Affirmance. 2
I
On March 27, 2012, Brown filed applications for disability insurance
benefits and supplemental security income, alleging disability beginning on
December 17, 2011. Her claims were denied initially on July 11, 2012, and were
denied upon reconsideration on September 18, 2012. On October 2, 2012, Brown
filed a request for hearing concerning her applications for disability insurance
benefits and supplemental security income.

Hearings were held before the

The Court has reviewed the Plaintiff’s Reply, though it is little more than a rehashing of the points she
made in her Motion for Summary Judgment.
2 References to the pages within the Administrative Record will be identified by AR [page number]. The
Administrative Record appears as (Doc. 15) on the docket.
1

1

Honorable Diane Raese Flebbe (ALJ) on May 13, 2013 and August 12, 2013, at
both times Brown appeared without representation. 3 Following the hearings,
Brown’s claims were denied on November 1, 2013. Her request for review by the
Appeals Council was denied on February 25, 2014, making the ALJ’s decision the
final decision of the Commissioner. Brown filed the instant civil action seeking
review of the ALJ’s decision on March 5, 2014.
II
At the time she applied for benefits, Brown was a 50 year old divorced
woman living in Peoria, Illinois with her mentally challenged adult son. At the
time of the August 2013 hearing, Brown was renting out the basement of her
home to another individual, Russell Nelson, with whom Brown was friends.
At the first hearing, Brown testified that she suffered from depression,
panic attacks, and anxiety almost all of her life. She testified that she was 5’2”
tall and weighed 155 pounds. She also testified that she last consumed alcohol, a
glass of wine, on her birthday on May 2, 2013. Brown stated that she did not go
to any doctors for over a year before the hearing. Brown then returned to the
ALJ’s previous question regarding alcohol use and told the ALJ “this alcohol
thing, that’s really throwing me for a big loop.” AR 97. Brown further discussed
the question of her alcohol use, how she believed her medical records were
contradictory in that regard, and that her dad was an alcoholic so she had to be
careful with alcohol. AR 98-99. The hearing was then postponed to give Brown
an opportunity to obtain counsel.
At the second hearing on August 12, 2013, Brown testified that she was
5’2” and weighed about 150 pounds. She testified that she attempted to be her
son’s Personal Assistant (PA), for pay, for approximately three months at the
The May 2013 hearing ended shortly after it began upon Brown stating that she “might need a lawyer.”
AR 92. The ALJ then postponed the hearing to provide Brown with an opportunity to obtain a lawyer.

3

2

beginning of 2012. Her attempt to do so did not work out and she stopped
serving as her son’s Personal Assistant in March 2012. Brown again testified that
the last time she consumed alcohol was on her birthday on May 2, 2013. She
explained that she had her sanitation license because she had always run
kitchens as her employment in the past. Brown also testified that of all of her
problems, she believed that her anxiety and stress were the biggest problems that
kept her from working. The week before the hearing, Brown testified that she
visited the emergency room. She stated that she went to the hospital to get her
medication tweaked because it was not “holding” her. AR 39. She also stated
that she worried all the time. She explained her days as either blue, green, or
purple days. On blue days she could just lie in bed and cry all day. She testified
to experiencing five blue days per week. On green days, Brown explained that
she could get up and walk out of her room. She testified to experiencing four to
five green days in a week. She also testified to experiencing no green days in an
average week. On purple days, Brown explained that those were pretty good
days where she could step outside. She testified to experiencing “probably two”
purple days in an average week. AR 42.
Brown testified that gloomy, rainy, and wintertime weather were a trigger
for her anxiety. She further testified that she liked to be by herself and not
bothered. She testified that while her main jobs had always been as a supervisor,
she had reached the point where she could not manage people because she could
not even manage her own time, thoughts, or energy to sustain an eight hour
work day. Brown then testified that her issues with anemia recurred within the
last two years and while she was currently taking iron pills, she did not think
they were helping too much.

She additionally testified that she was self-

medicating with aspirin and ibuprofen. She testified that she had arthritis that
affected her back, knees, and legs so that she could hardly walk.
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In regard to her time at home, Brown testified that a personal caregiver
came to her home daily to take care of Brown’s adult mentally challenged son.
Brown testified that her renter did the cooking, dishes, vacuuming, and lawn
mowing. Her son and renter took out the garbage. She testified that most of the
time her renter and she went to the grocery story together. However, before the
renter moved in, Brown explained that her son’s PA would cook his meals, clean
his dishes, and clean up the house to the extent doing so was picking up after her
son. Brown further testified that while she dressed and showered on her own,
she did not do those things regularly. She stated that she was able to pay bills
and handle finances. Brown also stated that she had an email account, Facebook
account, and cell phone. She said that she spent no time on her cell phone in an
average day. Brown testified that she generally just sat in her room most of the
day.
The ALJ then proceeded to question Brown’s renter, Russell Nelson. He
testified that Brown had mood changes day to day which he observed by being
with her from mid-morning through early afternoon each day. Nelson explained
that he spent time with Brown’s son to help Brown out. Nelson also testified that
he and Brown split the cooking chores and that he helped out around the house.
The ALJ then questioned the Vocational Expert (VE), Ronald Malik. The
ALJ asked the VE to assume an individual who had the ability to perform light
exertion work, but could not climb ladders, ropes, or scaffolds, could only
occasionally climb ramps and stairs, balance, stoop, crouch, and crawl, and with
the need to avoid concentrated exposure to extreme cold, wetness, humidity, and
extreme heat. The ALJ further asked the VE to assume that the individual would
have periods of symptom exacerbation with the resulting moderate limitations in
concentration, persistence, or pace when attempting complex or detailed tasks.
Thus, the ALJ asked the VE to limit the individual to jobs that did not involve
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complex or detailed job processes, little in the way of change in job process from
day to day, no work interaction with coworkers and supervisors, and all work to
be completed independently rather than as a team member. The VE testified that
the individual would be unable to perform Brown’s past work.
The ALJ asked the VE to further assume the individual had Brown’s age,
education, and work history. When asked whether there were jobs that could be
done by such an individual, the VE responded that there were and identified:
pre-assembler, packager, and assembler.

AR 78.

The ALJ added to the

hypothetical individual the limitation of no fast-paced hourly production
demands. The VE responded that the identified jobs were not eliminated with
that further limitation. The ALJ then asked the VE if the jobs would remain if the
hypothetical individual missed work two days or more a month.
responded that all of the identified jobs would be eliminated.

The VE

The VE also

testified that all of the jobs would be eliminated if the individual was off task
20% or more of the day due to distraction caused by her symptoms.
III
In her Decision, the ALJ found that Brown had the severe impairments of
osteoarthritis, anemia, hypertension, mild cardiac impairment per testing which
identified mild to moderate valve regurgitation and mild calcification of the
mitral and aortic valves, anxiety, depression, and alcohol abuse.

Brown’s

claimed error before this Court relates to the ALJ’s Residual Functional Capacity
(RFC) finding.
The ALJ made the following RFC finding:
The claimant has the [RFC] to perform light work as defined in 20
CFR
404.1567(b)
and
416.967(b)
except
no
climbing
ladders/ropes/scaffolds;
occasional
climbing
ramps/stairs,
balancing, stooping, kneeling, crouching and crawling; and the need
to avoid concentrated exposure to temperature extremes, wetness
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and humidity. Because of mental impairments and symptoms
combined, she may during times of symptom exacerbation have
moderate limitations in concentration, persistence or pace when
attempting complex or detailed tasks and so she is limited to jobs
that do not require complex or detailed job processes, little in the
way of change in job processes from day-to-day, and no fast-paced
hourly production demands. In addition, there should be no work
interaction with general public and only occasional work interaction
with coworkers and supervisors, but work should be done
independently rather than as a member of a team.
AR 16. In making that finding, the ALJ exhaustively recounted Brown’s own
testimony (set forth above), her primary care physician’s, Dr. Henry Gross’s,
treatment notes, and the State Agency doctors’ physical and psychological
evaluations. The ALJ also discussed Nelson’s testimony, Brown’s medications,
Brown’s August 2013 emergency room visits, and the State Agency evaluators’
findings and conclusions.
IV
Brown’s Motion for Summary Judgment does not cogently identify the
issues she wishes to raise before the Court.

However, the Commissioner

identifies the “gravamen” of Brown’s brief to be that the ALJ’s findings as to her
RFC and/or credibility were unsupported by substantial evidence. Because the
Court agrees with the Commissioner’s articulation of the issues and because the
Commissioner’s brief in opposition sufficiently addresses the issues Brown
raises, the Court will address those issues as articulated by the Commissioner.
The Court's function on review is not to try the case de novo or to supplant
the ALJ's findings with the Court's own assessment of the evidence. See Schmidt
v Apfel, 201 F3d 970, 972 (7th Cir 2000); Pugh v Bowen, 870 F2d 1271 (7th Cir 1989).
Indeed, "[t]he findings of the Commissioner of Social Security as to any fact, if
supported by substantial evidence, shall be conclusive."
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42 USC § 405(g).

Although great deference is afforded to the determination made by the ALJ, the
Court does not "merely rubber stamp the ALJ's decision." Scott v Barnhart, 297
F3d 589, 593 (7th Cir 2002). The Court's function is to determine whether the
ALJ's findings were supported by substantial evidence and whether the proper
legal standards were applied. Delgado v Bowen, 782 F2d 79, 82 (7th Cir 1986).
Substantial evidence is defined as such relevant evidence as a reasonable mind
might accept as adequate to support the decision. Richardson v Perales, 402 US
389, 390 (1971), Henderson v Apfel, 179 F3d 507, 512 (7th Cir 1999).
In order to qualify for disability insurance benefits, an individual must
show that his inability to work is medical in nature and that he is totally
disabled. Economic conditions, personal factors, financial considerations, and
attitudes of the employer are irrelevant in determining whether a plaintiff is
eligible for disability. See 20 CFR §§ 404.1566, 416.966 (1986). The establishment
of disability under the Act is a two-step process.
First, the plaintiff must be suffering from a medically determinable
physical or mental impairment, or combination of impairments, 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 12 months. 42 USC § 1382(c)(a)(3)(A). Second,
there must be a factual determination that the impairment renders the plaintiff
unable to engage in any substantial gainful employment. McNeil v Califano, 614
F2d 142, 143 (7th Cir 1980). The factual determination is made by using a fivestep test. See 20 CFR §§ 404.1520, 416.920. In the following order, the ALJ must
evaluate whether the claimant:
1)

currently performs or, during the relevant time period, did
perform any substantial gainful activity;

2)

suffers from an impairment that is severe or whether a
combination of her impairments is severe;
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3)

suffers from an impairment which meets or equals any
impairment listed in the appendix and which meets the
duration requirement;

4)

is unable to perform her past relevant work which includes an
assessment of the claimant’s residual functional capacity; and

5)

is unable to perform any other work existing in significant
numbers in the national economy.

Id. An affirmative answer at any step leads either to the next step of the test, or
at steps 3 and 5, to a finding that the plaintiff is disabled. A negative answer at
any point, other than at step 3, stops the inquiry and leads to a determination
that the plaintiff is not disabled. Garfield v Schweiker, 732 F2d 605 (7th Cir 1984).
The plaintiff has the burdens of production and persuasion on steps 1
through 4. However, once the plaintiff shows an inability to perform past work,
the burden shifts to the Commissioner to show ability to engage in some other
type of substantial gainful employment. Tom v Heckler, 779 F2d 1250 (7th Cir
1985); Halvorsen v Heckler, 743 F2d 1221 (7th Cir 1984).
In the instant case, Brown claims error on the ALJ’s part at Step Four.
A
Brown essentially argues that the ALJ’s RFC finding was incorrect based
upon the evidence of record.

The Commissioner first argues that the ALJ’s

credibility findings were sound. The Commissioner highlights that: the ALJ
identified multiple material inconsistencies in Brown’s testimony; the ALJ
described how Nelson’s testimony contrasted with Brown’s; Brown made
representations about the care she provided for her son on questionnaires that
differed from her testimony; Brown made inconsistent statements regarding
alcohol consumption; and Brown’s testimony that she did not engage in any
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work since 2011 conflicted with an emergency room record describing her as a
cook at a restaurant shortly before the August 2013 hearing.
Determinations of credibility made by the ALJ will not be overturned
unless the findings patently wrong. Shideler v Astrue, 688 F3d 306, 310-11 (7th Cir
2012). “Only if the trier of fact grounds his credibility finding in an observation
or argument that is unreasonable or unsupported . . . can the finding be
reversed.” Sims v Barnhart, 442 F3d 536, 538 (7th Cir 2006) (citation omitted).
SSR 96–7p instructs that when “determining the credibility of the individual's
statements, the adjudicator must consider the entire case record,” and that a
credibility determination “must contain specific reasons for the finding on
credibility, supported by the evidence in the case record.” An ALJ should
consider elements such as objective medical evidence of the claimant's
impairments, the daily activities, allegations of pain and other aggravating
factors, “functional limitations,” and treatment (including medication). Scheck v
Barnhart, 357 F3d 697, 703 (7th Cir 2004); Rice v Barnhart, 384 F3d 363, 371 (7th Cir
2004).
Here, as the Commissioner points out, the ALJ provided very specific
reasons for her finding that Brown’s statements were not fully credible in terms
of her alleged degree of limitation. The ALJ laid out the inconsistencies between
Brown’s testimony and representations made elsewhere (i.e. to medical staff, on
Social Security forms, to State Agency examiners) pertaining to the chores she
did at home, the extent to which she cared for her mentally challenged adult son,
her alcohol use, and her work outside of the home. The ALJ did so only after she
detailed much of the testimony and evidence earlier in her Decision that she later
relied upon in setting forth her credibility finding.

The ALJ’s credibility

determination was grounded upon observations that were both reasonable and
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supported in the record. Sims, 442 F3d at 538. Her findings are not patently
wrong. Skarbek v Barnhart, 390 F3d 500, 504-05 (7th Cir 2004).
B
In her Brief, Brown cites to a handful of provisions that she apparently
believes guide the inquiry in her particular case and support a different RFC
finding in her case. As for the first two provisions she cites pertaining to the
physical exertion requirements of “light work” and individuals of “advanced
age,” the Commissioner argues that Brown was well within the category of an
individual “closely approaching advanced age” (between the ages of 50 and 54)
at the time she rendered her decision in 2013 when Brown was 52 years old. See
20 CFR § 404.1563(d)-(e) (defining “person closely approaching advanced age”
and “person of advanced age”). Thus, the “issue” Brown attempts to raise about
her alleged advanced age and the ALJ’s finding that she was capable of doing
light work is not even present in this case.
Brown next cites to 20 CFR § 404.1508 which provides:
If you are not doing substantial gainful activity, we always look first
at your physical or mental impairment(s) to determine whether you
are disabled or blind. Your impairment must result from anatomical,
physiological, or psychological abnormalities which can be shown
by medically acceptable clinical and laboratory diagnostic
techniques. A physical or mental impairment must be established by
medical evidence consisting of signs, symptoms, and laboratory
findings, not only by your statement of symptoms (see § 404.1527).
In response to her citation to § 404.1508, the Commissioner argues that the ALJ
found seven severe, medically determinable impairments and to the extent the
ALJ did not find fibromyalgia to be a medically determinable impairment, the
ALJ sufficiently explained that there was no diagnosis of such in the record,
described a relevant physical examination, and noted the lack of rheumatologic
evaluation or evaluation for fibromyalgia. The Commissioner correctly details
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the ALJ’s Decision in this regard and correctly discusses the fact that § 404.1508
supports the ALJ’s severe impairment findings.
Next, Brown points out that the ALJ stated that, “State [A]gency evaluators
concluded claimant’s mental impairments were severe . . . .”

AR 20.

The

Commissioner argues that “severe” is a term of art and when an impairment is
found severe, the sequential evaluation process continues to the next step
without an implication that the impairment is disabling. Indeed, Brown was not
entitled to a favorable decision simply because the ALJ found that she had severe
impairments. The Commissioner correctly argues that the inquiry proceeds to
the next step of the sequential evaluation process and that in this case, in
particular, the ALJ accounted for the limitations that were supported in the
record in her RFC finding. See Curvin v Colvin, 778 F3d 645, 648 (7th Cir 2015)
(explaining that the step two determination of severity is “merely a threshold
requirement” which, when found, allows the sequential process to proceed to the
next steps), quoting Castile v Astrue, 617 F3d 923, 926-27 (7th Cir 2010).
The Mental Residual Functional Capacity Assessment provided that “the
client is functioning adequately and adaptively despite the complaints . . . Hence
the client is partially credible and the client is able to understand and recall all
but complex or detailed instructions. The anxiety disorder suggests a socially
restricted setting with moderate limit of social expectations.

Client retains

psychological capability to do one and two step unskilled tasks at sga.” AR 429.
Exhibit B10F, also cited by the ALJ, provided that, “Based on mental status exam
and [Activities of Daily Living] [claimant] has the ability to perform simple
unskilled work at SGA.” AR 433. The ALJ ultimately cited to ample record
evidence in support of her RFC finding.

Moreover, the ALJ amply

accommodated Brown’s limitations due to severe mental impairments in the RFC
11

where the limitations in the RFC went beyond those provided by the State
Agency evaluators.
Brown also points out the ALJ’s finding that, “The claimant is unable to
perform any past relevant work.” AR 21. Brown appears to believe that she was
entitled to benefits based upon that finding.

However, the Commissioner

correctly explains that such a finding does not end the inquiry. Instead, the ALJ
was tasked with determining whether other work existed in significant numbers
in the national economy for an individual with Brown’s RFC. See 20 CFR §§
404.1520, 416.920. The ALJ fulfilled her obligation when she questioned the VE
who testified that a significant number of jobs did exist for an individual with
Brown’s RFC.
The Plaintiff also filed additional exhibits in this case. The Exhibit that
appears as (Doc. 13) on the docket includes a medical record dated September 24,
2013 and one dated July 23, 2014 and what appears to be further argument from
Brown regarding why the ALJ erred in denying her disability benefits. The
Exhibit that appears as (Doc. 20) on the docket includes a medical record dated
November 2, 2014. The Commissioner only addresses Document 20, arguing
that the medical record significantly post-dates the ALJ decision and should not
warrant remand because the evidence is not new and material.
A court charged with reviewing a case may order a remand where “there
exists 'new evidence which is material and . . . there is good cause for the failure
to incorporate such evidence into the record in a prior proceeding'.” Schmidt v
Barnhardt, 395 F3d 737, 741-742 (7th Cir 2005); see also 42 USC § 405(g).
“Evidence is ‘new’ if it was ‘not in existence or available to the claimant at the
time of the administrative proceeding’.” Schmidt, 395 F3d at 742. Evidence is
deemed “material” if “there is a 'reasonable probability' that the ALJ would have
reached a different conclusion had the evidence been considered.” Id. However,
12

the new evidence is only material if it is also “relevant to the claimant's condition
'during the relevant time period encompassed by the disability application under
review'.” Id. Evidence is deemed “material” if “there is a 'reasonable probability'
that the ALJ would have reached a different conclusion had the evidence been
considered.” Id at 742. However, the new evidence is only material if it is also
“relevant to the claimant's condition 'during the relevant time period
encompassed by the disability application under review'.” Id.
Here, the September 24, 2013, July 23, 2014 and November 2, 2014 medical
records are certainly new. The latter two, however, post-date the ALJ’s Decision
by more than eight months and more than one year, respectively. Brown does
not articulate why these 2014 medical records are material. They are not material
as they show Brown’s condition at that later point in 2014, not what her condition
was at the time relevant to the hearing on her disability application. Furthermore,

to the extent that Brown argues the September 2013 medical record is material
because it shows a lower Hemoglobin (HGB) level on September 24, 2013
compared to the Hemoglobin level that pre-dated the ALJ’s Decision on August
6, 2013, her argument fails. The record is replete with lab results, particularly
Hemoglobin levels, dated as early as December 15, 2004 and as late as August 6,
2013 at which time Brown’s Hemoglobin level was 9.2. See AR 504 (9.3 on June
6, 2014), 667. The 9.2 value was also below the normal range. Additionally,
Brown does not direct the Court’s attention to anywhere in the medical records
that were before the ALJ which indicate the significance, if any, of Brown’s
Hemoglobin levels. The evidence of Brown’s Hemoglobin level on September
24, 2013 is not material because there is not a reasonable probability that the ALJ
would have reached a different conclusion had the evidence been considered; it
is one isolated number from bloodwork that does not appear to be significant in
any other medical records and was in fact low two times over at the time the ALJ
13

reviewed the medical records.
Finally, SSR 96-8p provides, “The RFC assessment must include a narrative

discussion describing how the evidence supports each conclusion, citing specific
medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily
activities, observations).” See also Briscoe ex rel Taylor v Barnhart, 425 F3d 345, 352
(7th Cir 2005) (stating that the ALJ’s omission in not explaining how he arrived at
his RFC conclusions, contrary to SSR 96-8p, was sufficient to warrant reversal of
his decision). Here, the ALJ provided the requisite narrative discussion. In the
end, the ALJ did not err in making the RFC finding that she did.
V
In light of the foregoing, the ALJ did not err in denying Brown’s claims for
benefits. This Court affirms the Commissioner’s denial of benefits, and therefore
DENIES Brown’s Motion for Summary Judgment (Doc. 17) and GRANTS the
Commissioner’s Motion for Summary Affirmance (Doc. 22).
In light of the parties’ consent, any appeal of this ruling must be made
directly to the Seventh Circuit Court of Appeals within the time period
prescribed by the Federal Rules of Appellate Procedure.
It is so ordered.
Entered on August 5, 2015.

s/Jonathan E. Hawley
U.S. MAGISTRATE JUDGE

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