Friday v. Commissioner of Social Security
Filing
25
ORDER AND OPINION entered by Magistrate Judge Jonathan E. Hawley on 7/14/2017. For the reasons stated herein, Friday's Motion for Summary Judgment (D. 16 ) is DENIED and the Commissioner's Motion for Summary Affirmance (D. 23 ) is GRANTED. This matter is now terminated. SEE FULL WRITTEN ORDER AND OPINION. (JS, ilcd)
E-FILED
Friday, 14 July, 2017 10:37:25 AM
Clerk, U.S. District Court, ILCD
IN THE
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
AMIE R. FRIDAY,
Plaintiff,
v.
Case No. 1:16-cv-01143-JEH
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
Order and Opinion
Now before the Court are the Plaintiff, Amie Friday’s, Motion for Summary
Judgment (D. 16) 1 and the Commissioner’s Motion for Summary Affirmance (D.
23). The Commissioner provided a supporting Memorandum thereto. (D. 24). For
the reasons stated herein, the Court DENIES the Plaintiff’s Motion for Summary
Judgment and GRANTS the Commissioner’s Motion for Summary Affirmance. 2
I
In March 2013, Friday filed an application for Disability Insurance Benefits
(DIB) alleging disability beginning in September 2012. Her claim was denied
initially and upon reconsideration.
Friday requested a hearing before an
Administrative Law Judge (ALJ) and appeared before ALJ Robert Schwartz in
February 2015, represented by counsel.
ALJ Schwartz issued a decision
concluding that Friday was not disabled. (D. 10 at pp. 15-27). The Appeals Council
denied Friday’s request for review in April 2016, making ALJ Schwartz’s Decision
the final decision of the Commissioner. 20 C.F.R. § 404.981. Friday filed the instant
1
2
Citations to the Docket in this case are abbreviated as “D. __.”
The undersigned presides over this case with the consent of all parties. (D. 14).
1
civil action, pro se, seeking review of the ALJ’s Decision pursuant to 42 U.S.C. §
405(g) in May 2016. (D. 1).
II
At the time Friday applied for DIB, she was 36 years old. She was living in
a home, in Macomb, Illinois with her husband and their four children. Friday
graduated from high school but has not worked since September 30, 2012. On the
various SSA forms she submitted, she indicated that she has disabling epilepsy,
fibromyalgia, and depression. Friday alleges her disability began on September
20, 2012.
At the hearing before ALJ Schwartz, Friday’s legal counsel argued that
while Friday may not meet the requirement for any Listings individually, the
combination of her impairments—especially the fibromyalgia combined with
epilepsy—have left her disabled. Friday testified that she has a driver’s license but
drives sparingly, in part because of her fear of having a seizure. (D. 10 at pg. 40).
She has not discussed her potential to have a seizure while driving with any of her
doctors. Id. at pg. 41.
Friday has past relevant work experience as a cosmetologist and a cashier.
She stopped working as a cosmetologist in 2012 because she wanted to do
something different. Shortly thereafter, she started working as a cashier and began
having difficulty with pain in her legs and back. At this time, Friday said, she
started having seizures as well. She ultimately quit working because she was
going to doctor’s appointments so frequently.
Initially, for the first few months, Friday was having “up to four to five
[seizures] a day until [her doctors] got it controlled with the medicines.” Id. at pg.
44. With her current medication, Topamax, she no longer has seizures. Friday did
say, however, that there are times when she feels as if she is about to have a seizure.
She remedies this by laying down for a brief rest and drinking a glass of water.
2
Friday can recover from these episodes in approximately 15 minutes and she
estimates they happen approximately one to three times per month.
A number of Friday’s treating physicians assessed whether she had multiple
sclerosis. Friday stated that their findings were inconclusive at the time of the
hearing. She said what bothered her most was pain in her legs, back, neck, and
head. Friday testified that the pain is so severe that she has difficulty standing at
times and nearly collapses when she tries to do so. On days when she can stand,
the longest she can stand without experiencing an onslaught of pain as a result is
approximately 15 to 30 minutes. Likewise, she cannot walk more than a few
blocks, sit for too long, or lift more than around eight pounds without disabling
pain ensuing.
Friday also said her hands have a tendency to go numb. This causes her to
drop things occasionally. She further testified that that she struggles with balance
from time to time, mainly due to dizziness, and suffers from migraines on average
twice a week. Friday said she needs to take frequent breaks, but is otherwise
capable of doing household chores such as dishes and laundry.
Overall, Friday said she has good days—those where she does not
experience extensive pain—approximately two to three days a month. Most days,
however, are bad days and she spends the bulk of those days in bed watching TV.
Id. at pg. 56. A consultative psychologist diagnosed Friday with mild major
depressive disorder secondary to physical issues. Friday said she knows she has
problems with anxiety, but is not sure whether she suffers from depression. In
addition, she said she struggles with memory loss.
In spite of the struggles she testified to, Friday also testified to engaging in
a variety of daily activities, including some work activity, after the alleged onset
of her disability. She reported that she cares for her children and gets them ready
for school. Friday also said she does the laundry, reads, and watches television.
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She indicated that she goes shopping regularly, spends a lot of time reading with
her young daughter, talking on the phone, visiting with friends, and sometimes
uses a computer.
Friday is able to care for her personal hygiene needs
independently.
Vocational Expert, James Ragains, also testified at Friday’s hearing. Based
on Friday’s testimony, Ragains concluded that Friday had past relevant work
history as a cosmetologist and a cashier. He stated that someone in Friday’s
position could perform light work, without climbing ladders, ropes, or scaffolding,
while being required to climb ramps or stairs and balance no more than
occasionally. The person would also have to avoid even moderate exposure to
hazards such as unprotected heights or dangerous machinery. Ragains said that
someone in Friday’s position would be able to perform both of Friday’s past jobs.
He opined that someone similarly situated to Friday could not perform the job of
cosmetologist within the same limitations previously noted and factoring in
Friday’s side effects from medication, her experience with pain, problems with
anxiety, a limitation to performing simple, routine, and repetitive tasks on a
sustained basis with only routine breaks, avoiding concentrated exposure to loud
or very loud environments, and all allowable postural activities (ramps, stairs,
stooping, kneeling, crouching, crawling, and balancing) limited to being only
occasional. She could, however, perform the job of cashier and other similar types
of jobs within these limitations. Ragains provided approximate figures for the
availability of some of these types of jobs, both in the state of Illinois and
nationally. He also stated that his testimony was consistent with the information
found in the Dictionary of Occupational Titles (DOT) and that the portions of his
testimony not specifically addressed by the DOT were based on his professional
experience.
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III
In his Decision, ALJ Schwartz determined that Friday had the severe
impairments of fibromyalgia and a history of a seizure disorder.
(20 CFR
404.1520(c)). Id. at pg. 20. He further determined, however, that Friday “does not
have an impairment or combination of impairments that meets or medically equals
the severity of one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).” Id. at 23. While Friday
complained about a variety of medical problems beyond those she listed in her
initial DIB application, the ALJ found that the medical evidence regarding these
other issues—including depression, anxiety, and multiple sclerosis—did “not
cause more than minimal limitation in the claimant’s ability to perform basic
physical or mental work activities and is therefore nonsevere.” Id. at pg. 22. She
further found that “[t]here is no evidence that multiple sclerosis has been
diagnosed.” Id.
The ALJ reviewed Friday’s medical records chronologically, including those
from her neurologist, Anil Dhunanoted, and noted that Friday reported no new
seizures since being on Topamax. Id. at pg. 20. After assessing Friday’s seizure
disorder, the ALJ ultimately concluded:
[H]er condition does not meet the requirements of Listing 11.02 []
regarding convulsive epilepsy because she does not have seizures
occurring at least once a month in spite of three months treatment.
Her condition does not meet the requirements of Listing 11.03
regarding nonconvulsive epilepsy because she does not have seizures
occurring more frequently than once weekly in spite of at least three
months of prescribed treatment. Her seizures have been well
controlled on Topamax [ ].
Id. at pg. 23.
Similarly, for Friday’s fibromyalgia, the ALJ stated:
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The claimant has fibromyalgia, but there is no applicable listing.
However the undersigned has considered this impairment under the
requirements of other listed impairments, but find no evidence that it
equals a listed impairment such as for inflammatory arthritis at 14.09
or major dysfunction of a joint at 1.02. The claimant is able to
ambulate effectively and records do not demonstrate abnormalities
upon physical examination that impose functional limitations that
would equal a listed impairment.
Id.
The ALJ crafted the following Residual Functional Capacity for Friday:
After careful consideration of the entire record, the undersigned finds
that the claimant has the residual functional capacity to perform light
work as defined in 20 CFR 404.1567(b) with the following additional
non-exertional limitations. She can never climb ladders, ropes, or
scaffolds. She can occasionally climb of ramps and/or stairs and
balance. She must avoid even moderate exposure to hazards such as
unprotected heights or dangerous machinery.
Id. In reaching this finding, the ALJ considered all of Friday’s testimony and the
evidence documenting her symptoms “in accordance with the requirements of 20
CFR 404.1529 and SSRs 96-4p and 96-7p” as well as “the requirements of 20 CFR
404.1527 and SSRs 96-2p, 96-5p, 96-6p and 06-3p.” Id. Following protocol, he
determined there was a medical impairment reasonably expected to produce
Friday’s symptoms. The ALJ concluded, however, that in evaluating the intensity,
persistence, and limiting effects of Friday’s symptoms, they were “not entirely
credible[.]” Id. at pg. 24.
Specifically, the ALJ found “the degree of pain and limitation the claimant
alleges is not consistent with the objective medical evidence regarding these
impairments or her functional ability, including her reported daily activities.” Id.
He emphasized Friday’s continued self-reported activities, including work, after
her alleged onset date. The ALJ found her substantial list of activities consistent
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with the range of light work formulated in his RFC. The ALJ supported his
assertions by citing evidence from the record—namely, Friday’s testimony and
medical records.
The ALJ ultimately found that Friday was not disabled. He noted that “no
physician has imposed any specific work related restrictions[]” on Friday and that
“[t]he medical evidence reveals that her seizure disorder had been well controlled
with medication since 2012 [].” Id. at pg. 24. The ALJ further found that Friday’s
fibromyalgia, to the extent its effects are demonstrated in the medical records, are
accommodated by his formulated RFC.
IV
In her pro se Motion for Summary Judgment, Friday does not argue that the
ALJ erred. Instead, she merely makes a variety of assertions. (D. 16 at pg. 3). In
response, the Commissioner argues that the ALJ reasonably found Friday had the
residual functional capacity to perform light work, primarily because his findings
were supported by substantial evidence. (D. 24).
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 F.3d 970, 972 (7th Cir. 2000); Pugh v. Bowen, 870 F.2d 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." 42 U.S.C. § 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 F.3d
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 F.2d 79, 82 (7th Cir. 1986).
Substantial evidence is defined as such relevant evidence as a reasonable mind
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might accept as adequate to support the decision. Richardson v. Perales, 402 U.S.
389, 390 (1971); Henderson v. Apfel, 179 F.3d 507, 512 (7th Cir. 1999).
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 U.S.C. § 1382c(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 F.2d 142, 143 (7th Cir.
1980). The factual determination is made by using a five-step test. See 20 C.F.R. §§
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;
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
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claimant is not disabled.” Garfield v. Schweiker, 732 F.2d 605, 607 fn. 2 (7th Cir.
1984).
The plaintiff has the burdens of production and persuasion on steps 1
through 4. In the instant case, Friday fails to allege the ALJ erred at any step in the
process. Given that Friday is proceeding pro se, the Court will assess whether the
ALJ’s findings regarding Friday’s fibromyalgia and epilepsy were supported by
substantial evidence.
Upon review, the Court finds that the ALJ’s Decision was based on
substantial evidence and the ALJ reasonably found that Friday could perform light
work within the confines of the RFC.
The ALJ formulated an RFC that
accommodated Friday’s pain complaints by restricting her to occasional
movement and light exertional work. He did this in spite of the fact that no doctor
restricted Friday’s work ability. Regarding Friday’s seizures, the ALJ prohibited
her from working conditions with even moderate exposure to unprotected heights
and dangerous machinery. Again, he did this after noting that her seizures were
controlled by medication.
As the Commissioner highlighted, the ALJ’s finding is consistent with the
opinions of two state agency reviewing physicians. It is appropriate for an ALJ to
rely on the opinion of reviewing physicians, who are considered experts in social
security disability evaluation. See Flener v. Barnhart, 361 F. 3d 442, 448 (7th Cir.
2004). The RFC’s consistency with these opinions demonstrates that the ALJ
accounted for Friday’s fibromyalgia and history of seizure disorder in formulating
the RFC.
Friday has not put forth an argument to support a claim that the ALJ’s
Decision was not supported by substantial evidence. The Court finds none.
Friday points to nothing in the record to establish that the SSA should have
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confirmed her fibromyalgia and seizure disorder were debilitating. Thus, the
ALJ’s Decision is affirmed.
The Court further finds that the ALJ’s finding is not contingent upon a
determination of Friday’s credibility. He did point out that Friday’s professed
physical limitations were inconsistent with some activities she testified to
engaging in. Ultimately, however, the ALJ based his finding on Friday’s testimony
and the lack of objective medical evidence in the record.
Even if the Court were to presume the ALJ found that Friday lacked
credibility, any credibility determinations he made would not be overturned
unless the findings were patently wrong. Shideler v. Astrue, 688 F.3d 306, 310-11
(7th Cir. 2012). 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.” 3 An ALJ must provide
“enough detail and clarity to permit meaningful review.” Briscoe ex rel. Taylor v.
Barnhart, 425 F.3d 345, 351 (7th Cir. 2005). In other words, a credibility finding
“must be supported by the evidence and must be specific enough to enable the
claimant and a reviewing body to understand the reasoning.” Craft v. Astrue, 539
F.3d 668, 678 (7th Cir. 2008).
Just as the Court cannot re-weigh the medical evidence of record and resolve
conflicts in the record, nor can the Court make its own credibility finding. “When
assessing an ALJ’s credibility determination, [the Court does] not . . . undertake a
de novo review of the medical evidence that was presented to the ALJ. Instead, [the
Court] merely examines whether the ALJ’s determination was reasoned and
SSR 96-7p was superseded by SSR 16-3p, effective March 16, 2016. The operative language the Court
quotes here from SSR 96-7p, however, appears in SSR 16-3p verbatim. By either standard, the Court’s
analysis remains the same.
3
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supported.” Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008). It is only when an
ALJ’s determination lacks any explanation or support that it is “patently wrong.”
Id. at 413-14. That is not the case here.
The ALJ noted reasons why he found Friday’s testimony regarding her
limited functional capacity inconsistent.
(D. 10 at pg. 24).
In addition to
referencing Friday’s brief continuation of work after her disability began, the ALJ
listed a host of other activities that Friday herself testified to engaging in. Id. He
concluded that Friday’s claims of limited functional capacity were contradicted by
the medical records and her testimony. Thus, the ALJ included specific reasons
for his finding of inconsistency, supported by evidence in the record. The ALJ
confronted the objective medical evidence of Friday’s impairments, her daily
activities, and her treatment. In so doing, the ALJ provided enough clarity and
detail to permit meaningful review. Therefore, the ALJ did not commit error in
any potential credibility analysis he made which would require remand.
V
For the reasons stated herein, Friday’s Motion for Summary Judgment (D.
16) is DENIED and the Commissioner’s Motion for Summary Affirmance (D. 23)
is GRANTED. This matter is now terminated.
It is so ordered.
Entered on July 14, 2017.
s/Jonathan E. Hawley
U.S. MAGISTRATE JUDGE
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