Stewart v. Commissioner of Social Security

Filing 30

OPINION: This Court AFFIRMS the decision of the ALJ; the Plaintiff's Motion for Summary Judgment (d/e 25 ) is DENIED; and the Defendant's Motion for Summary Affirmance (d/e 28 ) is GRANTED. This case is CLOSED. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 3/31/2016. (MJ, ilcd)

E-FILED

Thursday, 31 March, 2016 01:09:41 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
YVONKIA STEWART,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN, Acting
)
Commissioner of Social Security, )
)
Defendant.
)

Civil No. 14-3265

OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Before the Court is Plaintiff Yvonkia Stewart’s Motion for
Summary Judgment (d/e 25) and Defendant Carolyn Colvin’s
Motion for Summary Affirmance (d/e 28). Because the Court finds
that the Social Security Commission’s decision was supported by
substantial evidence and Plaintiff is not entitled to a Sentence Six
remand because her new evidence does not create a reasonable
probability that the ALJ would come to a different conclusion,
Plaintiff’s Motion for Summary Judgment is DENIED and
Defendant’s Motion for Summary Affirmance is GRANTED.
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I. BACKGROUND
a. Plaintiff’s original applications.
On April 23, 2010, Plaintiff, Yvonkia Stewart, pro se filed a
Title II application for a period of disability and disability benefits.
She also filed a Title XVI application for supplemental security
income on the same date. In both applications, Plaintiff alleged
disability beginning October 8, 2008. Plaintiff alleged that her
permanent disability is a result of the following medical conditions:
herniated disc, spinal compression/cervical, thoracic and lumbar
radiculopathy/stenosis, recurrent simple partial seizures,
cardiovascular injury/disease, and residual functional capacity
limitations. See Pl. Mot. Summ.J. (d/e 25) at 6. Plaintiff’s
applications were initially denied on July 22, 2010 and again
denied upon reconsideration on January 20, 2011. On March 18,
2011, Plaintiff requested administrative review of the decision.
b. Plaintiff’s Administrative Hearings and Decision
Administrative Law Judge John M. Wood (“ALJ”) held an inperson hearing in Springfield, Illinois, on March 22, 2012. James
Ragains, an impartial vocational expert also appeared and testified
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at the hearing. On December 4, 2012, the ALJ held a supplemental
video hearing. Plaintiff was represented by Joe Ira Lipsey, a nonattorney representative.
On February 8, 2013, the ALJ denied Plaintiff’s application
because Plaintiff has not been and is not “under disability within
the meaning of the Social Security Act (“SSA”) from October 8,
2008, through the date of this decision.” R., p. 18. The following is
a summary of the ALJ’s findings1:
Although Plaintiff had a representative, she often sought to act
ex parte. Plaintiff frequently contacted the ALJ directly. Plaintiff
also submitted a number of medical reports that included “her
personal notes and comments handwritten on them,” documents
filed with Worker’s Compensation, and emails expressing her
displeasure with her legal representation, her Worker’s
Compensation case, and her medical treatment.
At the original hearing, “the claimant and her representative
alleged a medical conspiracy and asked that many medical
personnel be subpoenaed for a supplemental hearing.” However,
1 See ALJ Decision (R. pp. 17-31).
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although the ALJ informed Plaintiff’s representative that the issue
would need to be briefed, no brief was submitted. Plaintiff further
complained that outstanding medical records remained. In
response, the ALJ obtained the records the Plaintiff requested.
Plaintiff additionally requested a supplemental hearing, though
Plaintiff provided no justification for needing a supplemental
hearing. However, the ALJ granted the supplemental hearing and
informed Plaintiff that any other claimed outstanding medical
records needed to be obtained prior to the supplemental hearing.
No additional medical evidence was submitted prior to the hearing.
Plaintiff meets the insured status requirement of the SSA.
Further, Plaintiff has not engaged in substantial gainful activity
since October 8, 2008. Plaintiff suffers from the following severe
impairments: degenerative disc disease, myofascial pain syndrome,
suspected sleep disorder, mood disorder, and history of substance
abuse. These impairments significantly limit Plaintiff’s ability to
perform basic work activities.
Plaintiff complained that she is further disabled by “seizures.”
She submitted second-hand accounts of symptoms, mostly from
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friends and relatives. However, the neurologists who have treated
Plaintiff have not diagnosed any seizure disorder. Therefore, the
ALJ found that the “seizures” were actually body spasms. Further,
Plaintiff has been known to “repeatedly engage in symptom
magnification,” which renders third party observations of her
symptoms immaterial. Plaintiff also testified that: (1) she can
control the seizures; (2) she only has the seizures when she walks
on concrete; and (3) she previously treated the seizures through
medication but stopped because of side effects. Plaintiff argued
that doctors have fraudulently altered medical records regarding
her seizures. However, there was no evidence of medical records
being altered, and doctors noted that Plaintiff showed evidence of
“malingering and symptom magnification.” Therefore, the ALJ
found that the seizures were not medically determinable.
The ALJ found that Plaintiff does not have impairments that
medically equal the severity of one of the listed impairments in 20
C.F.R. 404, Subpart P, Appendix 1. First, Plaintiff’s degenerative
disc disease does not constitute the “major dysfunction of a joint”
because Plaintiff retains substantial mobility in the joints and the
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impairment has not come to compromise the nerve root or spinal
cord. Second, Plaintiff’s myofascial pain syndrome is not a listed
impairment. Third, Plaintiff’s suspected sleep disorder does not
include significant pulmonary artery pressure or arterial
hypoxemia, nor does the disorder appear to be related to abnormal
mental state and loss of functional abilities. Finally, Plaintiff’s
mental impairments have not resulted in hospitalization or
treatment or any significant functional limitation.
Further, Plaintiff retains significant functional abilities. She is
the sole caregiver for her 10-year-old son. Plaintiff is able to use
stairs, shop for groceries, iron, cook, do dishes, run errands, and
participate in many other daily activities. She also submitted
statements from friends suggesting that she has the ability to
socially interact.
Although the ALJ found that Plaintiff does have underlying
severe impairments, the ALJ further found that Plaintiff’s history of
symptom-magnification makes it difficult, for both doctors and
adjudicators, to determine her functional abilities. (The ALJ then
provided extensive evidence of doctors’ difficulties determining
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Plaintiff’s functional abilities based on Plaintiff’s exaggeration of
symptoms and lack of effort during examinations.) Thus, the ALJ
based his findings primarily on the objective medical evidence.
Considering Plaintiff’s medically supported impairments, the ALJ
found that Plaintiff can perform “sedentary work,” with the following
exceptions: climbing ladders, ropes, or scaffolds; more than
occasional climbing of ramps/stairs, balancing, stooping, kneeling,
crouching, or crawling; and more than occasional interaction with
coworkers, supervisors, or the public. Therefore, the ALJ found
that Plaintiff’s “allegation of complete and total disability cannot be
fully accepted.”
The ALJ found that, although Plaintiff is unable to perform her
past work as a “job operations manager, customer service retail
manager, and data entry specialist,” Plaintiff is able to adjust to
other work. Plaintiff is a younger individual, age 35 at the time of
the hearing, she has at least a high school education, and she can
communicate in English. A vocational expert testified that given all
of Plaintiff’s limitations, she would still be able to perform all the
requirements of “representative occupations such as general office
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clerk and ticket counter.”
Because Plaintiff has the ability to successfully adjust to other
work and the positions available to Plaintiff “exist[ ] in significant
numbers in the national economy,” the ALJ ultimately found that
Plaintiff is “not disabled.”
c. Plaintiff’s Appeals to Date.
On April 27, 2013, Plaintiff requested that the Appeals Council
review the ALJ’s decision. See R. p. 11. Plaintiff submitted
additional evidence to the Appeals Council, which the Council
accepted into the record. See R. p. 7-8. On June 18, 2014, the
Appeals Council informed Plaintiff that, based on a review of the
Plaintiff’s reasons for disagreeing with the ALJ along with the
additional evidence, the Appeals Council declined to review the
ALJ’s decision.
On August 22, 2014, Plaintiff filed a complaint in this Court
requesting that the Court review the ALJ’s decision. On June 1,
2015, Plaintiff moved for summary judgment (d/e 25). On
September 17, 2015, the Commissioner filed a cross motion for
summary affirmance (d/e 28). Plaintiff argues that the
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Commissioner’s decision is not supported by substantial evidence
in the record. Specifically, Plaintiff argues that the ALJ improperly
labeled her “purely physical” impairments associated with periodic
seizures as “Anxiety Disorder accompanied with depression.” See
Pl. Mot. Summ.J. (d/e 25) at 6 (citing R., p. 112-16). Plaintiff also
submits new evidence, which she claims, if considered by the ALJ,
would lead to a different conclusion about the extent of her
functional limitations. See id. at 6. Now, after review of the record,
the Court finds that the ALJ’s decision was based on substantial
evidence. The Court further finds that the new evidence submitted
by Plaintiff does not create a reasonable probability that the ALJ
would come to a different conclusion. Therefore, the Court DENIES
Plaintiff’s Motion for Summary Judgment and GRANTS the
Commissioner’s Motion for Summary Affirmance.
II. LEGAL STANDARDS
In the Court’s de novo review of the ALJ’s decision, adopted by
the Appeals Council, the Court does not “try the case de novo
or…supplant the ALJ’s finding with the court’s own assessment of
the evidence,” but rather the Court reviews the ALJ’s decision to see
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if the decision is supported by substantial evidence. Cook on Behalf
of Cook v. Sullivan, 812 F.Supp. 893, 898 (C.D.Ill. 1993) (citing Pitts
v. Sullivan, 923 F.2d 561 (7th Cir. 1991)). Substantial evidence is
“‘such relevant evidence as a reasonable mind might accept as
adequate’” to support the decision. Richardson v. Perales, 402 U.S.
389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)). “When assessing an ALJ’s credibility
determination, we do not…undertake a de novo review of the
medical evidence that was presented to the ALJ. Instead, we merely
examine whether the ALJ’s determination was reasoned and
supported.” Elder v. Astrue, 529 F.3d 408, 414 (7th Cir. 2008).
The Court, via a Sentence Six remand, “may at any time order
additional evidence to be taken before the Commissioner but only
upon a showing that there is new evidence which is material and
that there is good cause for the failure to incorporate such evidence
into the record in a prior proceeding….” 42 U.S.C. § 405(g). “New
evidence is material if there is a reasonable probability that the ALJ
would have reached a different conclusion had the evidence been
considered.” Schmidt v. Barnhart, 395 F.3d 737, 742 (7th Cir.
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2005).
III. ANALYSIS
Plaintiff contests the ALJ’s findings as to her “physical
impairments.” Pl. Mot. Summ.J. (d/e 25) at 6. Plaintiff believes
that she has additional impairments, specifically seizures, which
were not found by the ALJ and that the ALJ mislabeled some of her
physical impairments as anxiety disorder and depression. Further,
Plaintiff argues that she is entitled to a Sentence Six remand
because she has submitted new evidence that she was not available
to her at the time of the ALJ’s decision. She alleges that the new
evidence would lead the ALJ to reach a different conclusion about
her functional limitations and her ability to adjust to other work.
First, the Court finds that, substantial evidence exists in the
record to support the ALJ’s decision. Second, the Court finds that
Plaintiff’s new evidence does not create a reasonable probability
that the ALJ would have reached a different conclusion.
a. The ALJ’s Decision is Supported by Substantial Evidence.
To establish a disability for either Plaintiff’s application for
disability insurance benefits or Plaintiff’s application for
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supplemental security income, Plaintiff must show that she has a
medically determinable physical or mental impairment, expected to
last 12 months or result in death, that renders her unable to
engage in substantial gainful activity. See 20 C.F.R. §§ 404.1500404.1599; 20 C.F.R. §§ 416.900-416.998. A “medically
determinable” impairment is an impairment that “result[s] from
anatomical, physiological, or psychological abnormalities which can
be shown by medically acceptable clinical and laboratory diagnostic
techniques” and “be established by medical evidence consisting of
signs, symptoms, and laboratory findings.” 20 C.F.R. § 404.1508.
The Commissioner uses a five-step process to evaluate
whether a claimant can engage in gainful activity. 20 C.F.R. §
404.1520. In the first four steps, Plaintiff bears the burden of
proving that she has severe physical or mental impairments and
that her impairments prevent her from engaging in past relevant
work. See Butera v. Apfel, 173 F.3d 1049, 1054 (7th Cir. 1999).
Then, in the fifth step, the Commissioner has the burden of proving
that Plaintiff can adjust to other work. See Schmidt, 395 F.3d at
742.
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In Plaintiff’s case, the ALJ determined that Plaintiff’s
impairments prevented her from doing her past relevant work;
however, the ALJ further determined that Plaintiff could perform
other jobs that existed in significant numbers in the economy.
Plaintiff argues that the ALJ’s determination that she could perform
other work is not supported by substantial evidence because the
determination did not account for her “recurrent simple partial
seizures undiagnosed by medical providers nor controlled by
medications….” Pl. Mot. Summ.J. (d/e 25) at 6. However, the ALJ
considered the evidence concerning Plaintiff’s alleged seizures and
found that the seizures, as well as additional symptoms and
limitations of which Plaintiff complained, were not supported by the
medical evidence. R. pp. 20-21.
The ALJ found that Plaintiff’s “credibility is extremely poor, as
evidenced by the numerous reports of symptom magnification,
exaggerated pain behaviors, submaximal and inconsistent effort
and malingering.” R. p. 28. Based on the evidence cited by the
ALJ, this Court finds the ALJ’s credibility determination to be
“reasoned and supported.” Elder, 529 F.3d at 414; see also, Def.
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Mot. Summ.J. (d/e 28) at 4 (citing a list references to the record,
made in the ALJ decision, where doctors questioned Plaintiff’s
credibility). Doctors noted that Plaintiff “exaggerated” responses,
“did not give maximal effort” on tests, exhibited “self-limiting
behavior,” and was “unwilling[ ] to cooperate.” R. pp. 24-26.
Therefore, based on the ALJ’s reasonable credibility determination
and the requirement of 20 C.F.R. § 404-1520 that impairments
must be established by more than a claimant’s “statement of
symptoms,” the ALJ acted appropriately in basing its evaluation
strictly on the objective medical evidence.
The ALJ found that Plaintiff’s complaints of seizures, severe
pain, and functional limitations were not supported by the medical
evidence. See R. p. 28. The ALJ cited a number of instances in the
record to support his findings that Plaintiff’s seizures, pain and
functional limitations did not have a medical cause. See R., p. 28
(“MRIs of cervical and lumbar spines indicated only mild findings.
EMG and nerve condition studies were normal. Evoked potential
studies were also within normal limits. A pain-management doctor
recommended no treatment regimen at the pain clinic, but advised
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[Plaintiff] to attend a neurosurgery evaluation. [Plaintiff’s]
neurologist also repeatedly advised [her] to attend a neurosurgery
evaluation. However, there is no indication in the record that [she]
ever did so. By her own admission, she does not take pain
medication. She also testified to a wide array of daily activities,
which belies her allegation of disabling pain.”); see also, Def. Mot.
Summ.J. (d/e 28) at 5 (summarizing numerous other references to
the medical record within the ALJ decision).
Further, the ALJ found that, although Plaintiff is unable to
return to her past jobs, Plaintiff is able to adjust to other work. The
vocational expert, James Ragains, testified that, given Plaintiff’s
“age, education, and work history,” as well as her physical
limitations,” Plaintiff would be able to perform representative jobs,
such as “mail clerk” and “ticket counter.” R., p. 70-71. The expert
further testified that the Plaintiff had significant opportunities to
work in these positions in the current economy. See R., p. 71
(stating that there are “roughly 2,800 of these jobs now in Illinois,”
in reference to “ticket counters”).
From the medical evidence and the testimony of the vocational
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expert, the ALJ reasonably found that, although Plaintiff was
“limited to sedentary work,” she could perform other jobs that
existed in significant numbers in the national economy. See R. pp.
29-30. The ALJ pointed specifically to “office clerk” and “ticket
counter” positions identified by the vocational expert. Id. at 30.
Therefore, the Court finds that the ALJ’s determination is supported
by substantial evidence.
b. Plaintiff’s New Evidence Does Not Create a Reasonable
Probability That the ALJ Would Have Reached a Different
Conclusion.
Plaintiff next argues that this Court should remand her case
under Sentence Six because Plaintiff has submitted additional
evidence into the record that would change the ALJ’s evaluation of
her functional limitations, and thus undermines the ALJ’s finding
that alternative employment is available to Plaintiff. However, the
Court finds that, even assuming that Plaintiff could demonstrate
good cause for not previously submitting the evidence, as is
required for a sentence six remand, the evidence submitted does
not create a “reasonable probability” that the ALJ would have
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reached a different decision. See 42 U.S.C. § 405(g); Schmidt, 395
F.3d at 742.
Plaintiff has submitted purported electroencephalography2
(“EEG”) data in support of her complaints of seizures. See,
generally, Exh. 2-5 To Pl. Mot. Summ.J. (d/e 25). However, Plaintiff
submits only numerous pages of raw data, with no medical
interpretation of the data or independent medical opinion that
supports her characterization of the data as “reveal[ing] epileptic
discharge” with “excessive muscle artifacts consistent with partial
seizures.” Pl. Mot. Summ.J. (d/e 25) at 3. Further, the EEG data
was produced in late 2013, after the ALJ decision was made.
Plaintiff provides no evidence that data from later 2013 is relevant
to her condition at the time the ALJ issued his decision in February
2013 and, therefore, the data is not material evidence. See Getch v.
Astrue, 539 F.3d 473, 484 (holding that evidence is material only if
it “speaks to the [plaintiff’s] condition at or before the time of the
administrative hearing.”).
2 Electroencephalography data monitors electrical activity in the brain and is
commonly used to diagnose epilepsy, among other brain disorders.
See Niedermeyer E. and da Silva F.L., Electroencephalography: Basic Principles,
Clinical Applications, and Related Fields, Lippincot Williams & Wilkins (2004).
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Plaintiff also submitted two letters prepared in 2014 and 2015
by the Laser Spine Institute. See Exh. 2 to Pl. Mot. Summ.J. (d/e
25-2) at 22, 26. However, the letters do not contain medical
opinions concerning Plaintiff’s functional limitations during the
period adjudicated by the ALJ. In the letters, Dr. Michael Perry
suggests a minor surgical procedure that would “provide relief from
symptoms,” but does not discuss the symptoms themselves. Id. at
22. Further, the letters refer only to recent MRIs, and the 2015
letter states that an “evaluation at our surgery center will be
necessary to determine the exact diagnosis.” Id. Therefore, the
opinion does not represent new evidence of an actual examination
of Plaintiff. See Similia v. Astrue, 573 F.3d 503, 522 (7th Cir. 2009)
(finding that evidence is not “new” if the doctor “did not reexamine
[the plaintiff] or conduct new psychological tests”).
Plaintiff additionally submitted the introductory page of an
updated “B-200” functional capacity report. Id. at 1. However, the
“report” does not contain: (1) the professional qualifications of the
individual conducting the test, (2) that individual’s interpretation of
the results, or (3) the relevance of the report to the time period
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reviewed by the ALJ. The introductory page consists only of an
explanation of the data that would be shown if a functional capacity
evaluation followed. However, the functional capacity evaluation
that does follow this introductory page in Plaintiff’s newly submitted
documents is a report that is already in the record considered by
the ALJ. See id. at 2-9. Even if this B-200 introductory page
contained a relevant medical opinion about Plaintiff’s additional
functional limitations by an accredited medical expert, the report
would still only be added to an administrative record where it is
contradicted by two other functional capacity reports. Further, the
ALJ noted Plaintiff’s inconsistent testing results and frequent lack
of effort during tests when initially denying Plaintiff’s claims.
Therefore, Plaintiff’s admission of another inconsistent test into the
record is not likely to change the ALJ’s conclusion.
Finally, Plaintiff submitted a wealth of documentation
concerning her post-partum cardiomyopathy in 2002. See Exh. 2
and 3 to Pl. Mot.Summ.J. (d/e 25-2) at 25-116, (d/e 25-3) at 110129. However, Plaintiff has not demonstrated how this evidence
relates to her health status during the period of time reviewed by
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the ALJ, which began October 8, 2008, six years later. Post-partum
cardiomyopathy typically resolves after only a few months; and
none of Plaintiff’s doctors suggested that Plaintiff had a cardiac
impairment during the time period reviewed by the ALJ. See
generally, Lil Barouch, M.D., Peripartum Cardiomyopathy, Johns
Hopkins Medicine (available at
http://www.hopkinsmedicine.org/heart-vascular_institute/clinical
_services/centers_excellence/womens_cardiovascular_health_center
/patient_information/healthtopics/peripartum_cardiomyopathy.html) (last visited on March 25,
2016). Further, Plaintiff continued to work for years after
childbirth. The ALJ already gave Plaintiff the “benefit of the doubt”
in finding significant non-exertional impairments. R. p. 29.
Therefore, the ALJ would be very unlikely to find additional
functional impairments based on this evidence.
Because Plaintiff has not presented any evidence that creates
a reasonable probability that the ALJ would come to a different
conclusion, Plaintiff is not entitled to a sentence six remand.

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IV. CONCLUSION
For the foregoing reasons, this Court AFFIRMS the decision of
the ALJ; the Plaintiff’s Motion for Summary Judgment (d/e 25) is
DENIED; and the Defendant’s Motion for Summary Affirmance (d/e
28) is GRANTED. This case is CLOSED.
ENTER: March 30, 2016.
s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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