Soria v. Colvin

Filing 18

MEMORANDUM Opinion and Order Signed by the Honorable M. David Weisman on 7/27/2017. Mailed notice (ao,)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JAVIER SORIA,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,1
Defendant.

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No. 16 C 8223
Magistrate Judge M. David Weisman

MEMORANDUM OPINION AND ORDER
Plaintiff Javier Soria brings this action pursuant to 42 U.S.C. § 405(g) for judicial review
of the Commissioner’s decision denying his application for Social Security benefits. For the
reasons set forth below, the Court reverses the Commissioner’s decision.

Background
Plaintiff filed an application for benefits on December 11, 2012, alleging a disability
onset date of January 1, 2012. (R. 67.) His application was denied initially on April 8, 2013,
and again on reconsideration on September 25, 2013. (R. 77, 93.) Plaintiff requested a hearing
before an Administrative Law Judge (“ALJ”), which was held on January 6, 2015. (R. 22-66.)
On January 27, 2015, the ALJ issued a decision denying plaintiff’s application. (R. 98-109.)
The Appeals Council denied review (R. 1-4), leaving the ALJ’s decision as the final decision of
the Commissioner. See Villano v. Astrue, 556 F.3d 558, 561-62 (7th Cir. 2009).

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On January 23, 2017, Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner of Social Security.
See https://www.ssa.gov/agency/commissioner.html (last visited July 27, 2017). Accordingly, the Court substitutes
Berryhill for Colvin pursuant to Federal Rule of Civil Procedure 25(d).

Discussion
The Court reviews the ALJ’s decision deferentially, affirming if it is supported by
“substantial evidence in the record,” i.e., “‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” White v. Sullivan, 965 F.2d 133, 136 (7th Cir.
1992) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). “Although this standard is
generous, it is not entirely uncritical,” and the case must be remanded if the “decision lacks
evidentiary support.” Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002).
Under the Social Security Act, disability is defined as the “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 12 months.” 42 U.S.C. § 423(d)(1)(A). The
regulations prescribe a five-part sequential test for determining whether a claimant is disabled.
See 20 C.F.R. § 404.1520. Under the regulations, the Commissioner must consider: (1) whether
the claimant has performed any substantial gainful activity during the period for which she
claims disability; (2) if not, whether the claimant has a severe impairment or combination of
impairments; (3) if so, whether the claimant’s impairment meets or equals any listed impairment;
(4) if not, whether the claimant retains the residual functional capacity (“RFC”) to perform her
past relevant work; and (5) if not, whether he is unable to perform any other work existing in
significant numbers in the national economy. Id.; Zurawski v. Halter, 245 F.3d 881, 885 (7th
Cir. 2001). The claimant bears the burden of proof at steps one through four, and if that burden
is met, the burden shifts at step five to the Commissioner to provide evidence that the claimant is
capable of performing work existing in significant numbers in the national economy. See 20
C.F.R. § 404.1560(c)(2).

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At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity
since the alleged disability onset date. (R. 100.) At step two, the ALJ found that plaintiff had
the severe impairments of “chronic otitis media with mastoiditis, bilaterally, post-surgery on the
right ear, with current mild right ear impairment and mild to moderate hearing loss, with high
frequency loss and left knee intra meniscal degenerative changes.” (Id. at 100-01.) At step
three, the ALJ found that plaintiff does not have an impairment or combination of impairments
that meets or medically equals the severity of a listed impairment. (R. 104.) At step four, the
ALJ found that plaintiff could perform past relevant work as a bench inspector (R. 108) because
he has the RFC:
[T]o perform medium work . . . : he can lift and carry 50 lbs maximum
occasionally and 25 pounds frequently; he can stand and walk for a total of six
hours out of an 8-hour workday, and sit for a total of six hours out of an 8-hour
workday. The claimant can occasionally climb ladders and stairs. The claimant
occasionally can crouch, kneel, and crawl. The claimant has no limitations with
manipulations, vision or communications. The claimant cannot do work requiring
good bilateral hearing at the full range of low and high frequency tones but is
capable of understanding normal conversational tones. The claimant should avoid
working around hazards and loud, noisy environments. The claimant has no
limitations in understanding, remembering, and carrying out basic work tasks.
The claimant is capable of adapting to changes in work environment and can get
along adequately with co-workers, supervisors, and the general public.
(R. 105.) Thus, the ALJ concluded plaintiff was not disabled. (R. 108.)
Plaintiff first argues that the Appeals Council erred in failing to consider the May 14,
2015 psychological evaluation including IQ testing and October 23, 2015 mental health
assessment he submitted after the ALJ rendered his decision, which establish that he has a
learning disability. (See R. 2 (“The [ALJ] decided your case through January 27, 2015. This
new information is about a later time. Therefore, it does not affect the decision about whether
you were disabled beginning on or before January 27, 2015.”); Pl.’s Br. Support Reversing
Comm’r’s Dec., Ex. A, Psychological Evaluation at 4 (stating that plaintiff’s test results suggest
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that he has a learning disability in the areas of “abstract reasoning, fund of information, use of
common sense, and word knowledge”).) The Appeals Council was only required to consider this
evidence if it was “new and material.” See 20 C.F.R. 404.970(a)(5). Evidence is “new,” within
the meaning of the regulation, if it was “not in existence or available to the claimant at the time
of the administrative proceeding,” and “material” “if it creates a reasonable probability that the
Commissioner would have reached a different conclusion had the evidence been considered.”
Stepp v. Colvin, 795 F.3d 711, 725 (7th Cir. 2015) (quotations omitted).
The 2015 psychological evaluation and mental health assessment constitute “new”
evidence because they post-date the administrative proceeding.2 However, defendant argues that
the evidence is not material because it would not have changed the outcome of the proceeding,
given that plaintiff worked despite his learning disability.
The Court disagrees. Plaintiff does not claim that his learning disability alone renders
him disabled. Rather, he argues that the learning disability in combination with his other
impairments renders him disabled, a possibility the ALJ plainly did not consider. (See R. at 101
(“The claimant’s alleged learning disability is not a medically determinable impairment . . . .
[because] the evidence does not demonstrate he underwent any diagnostic testing or treatment
for the alleged impairment. Therefore, without a diagnosis from an acceptable medical source,
the claimant’s alleged learning disability is not a medically determinable impairment.”); see also
20 C.F.R. § 404.1527(a)(2) (stating that psychologists are “acceptable medical sources”). In
fact, the RFC the ALJ formulated is explicitly premised on the absence of a learning disability.
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Though the evidence post-dates the administrative hearing, it reflects plaintiff’s intellectual functioning at the time
of the hearing, as the regulations require. See 20 C.F.R. § 416.1470(a)(5) (stating that new and material evidence is
that which “relates to the period on or before the date of the hearing decision.”); see also Muncy v. Apfel, 247 F.3d
728, 734 (8th Cir. 2001) (“[A] person’s IQ is presumed to remain stable over time in the absence of any evidence of
a change in a claimant’s intellectual functioning.”).

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(See R. at 105 (stating that “[t]he claimant has no limitations in understanding, remembering, and
carrying out basic work tasks” and is “capable of adapting to changes in work environment”).)
Had the ALJ considered plaintiff’s learning disability in conjunction with plaintiff’s other
impairments, the outcome of the administrative proceeding might well have been different.
Thus, the 2015 psychological evidence was both “new” and “material” within the meaning of the
regulations, and the Appeals Council’s failure to consider it was error.

Conclusion
For the reasons set forth above, the Court denies the Commissioner’s motion for
summary judgment [12], reverses the Commissioner’s decision, and remands this case for
further proceedings consistent with this Memorandum Opinion and Order.

This case is

terminated.
SO ORDERED.

ENTERED: July 27, 2017

_________________________________
M. David Weisman
United States Magistrate Judge

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