Lee v. Colvin

Filing 28

MEMORANDUM Opinion and Order Signed by the Honorable Mary M. Rowland on 9/18/2017. Mailed notice. (dm, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MARK WAYNE LEE,
Plaintiff,
v.

No. 16 C 9344
Magistrate Judge Mary M. Rowland

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,1
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Mark Wayne Lee filed this action seeking reversal of the final decision
of the Commissioner of Social Security denying his applications for Supplemental
Security Income (SSI) under Title XVI of the Social Security Act (Act). 42 U.S.C. §§
405(g), 1381 et seq. The parties have consented to the jurisdiction of the United
States Magistrate Judge, pursuant to 28 U.S.C. § 636(c), and Plaintiff has filed a
request to reverse the ALJ’s decision and remand for additional proceedings. For
the reasons stated below, the Commissioner’s decision is affirmed.
I. THE SEQUENTIAL EVALUATION PROCESS
To recover SSI, a claimant must establish that he or she is disabled within the
meaning of the Act. York v. Massanari, 155 F. Supp. 2d 973, 977 (N.D. Ill. 2001).2 A

On January 23, 2017, Nancy A. Berryhill became Acting Commissioner of Social
Security and is substituted for her predecessor as the proper defendant in this action. Fed.
R. Civ. P. 25(d).
1

The regulations governing the determination of disability for SSI are found at 20
C.F.R. § 416.901 et seq. The standard for determining SSI DIB is virtually identical to that
2

person is disabled if he or she is unable to perform “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.” 20 C.F.R. § 416.905(a). In
determining whether a claimant suffers from a disability, the Commissioner
conducts a standard five-step inquiry:
1. Is the claimant presently unemployed?
2. Does the claimant have a severe medically determinable physical or
mental impairment that interferes with basic work-related
activities and is expected to last at least 12 months?
3. Does the impairment meet or equal one of a list of specific
impairments enumerated in the regulations?
4. Is the claimant unable to perform his or her former occupation?
5. Is the claimant unable to perform any other work?
20 C.F.R. §§ 416.909, 416.920; see Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir.
2000). “An affirmative answer leads either to the next step, or, on Steps 3 and 5, to
a finding that the claimant is disabled. A negative answer at any point, other than
Step 3, ends the inquiry and leads to a determination that a claimant is not
disabled.” Zalewski v. Heckler, 760 F.2d 160, 162 n.2 (7th Cir. 1985). “The burden of
proof is on the claimant through step four; only at step five does the burden shift to
the Commissioner.” Clifford, 227 F.3d at 868.

used for Disability Insurance Benefits (DIB). Craft v. Astrue, 539 F.3d 668, 674 n.6 (7th Cir.
2008) (“Although the Code of Federal Regulations contains separate sections for DIB and
SSI, the processes of evaluation are identical in all respects relevant to this case.”).
Accordingly, this Court cites to both DIB and SSI cases.

II. PROCEDURAL HISTORY
Plaintiff applied for SSI on May 30, 2013, alleging that he became disabled on
January 1, 2002, due to depression, illiteracy, hernia, arthritis, hole in eardrum,
and hearing loss. (R. at 11, 169). The application was denied initially and upon
reconsideration, after which Plaintiff filed a timely request for a hearing. (Id. at 11,
60–81, 98–100). On April 21, 2015, Plaintiff, represented by counsel, testified at a
hearing before an Administrative Law Judge (ALJ). (Id. at 11, 30–59). The ALJ also
heard testimony from Gary Paul Wilhelm, a vocational expert (VE). (Id. at 11, 23–
59; see id. at 133–35).
The ALJ denied Plaintiff’s request for benefits on May 14, 2015. (R. at 11–25).
Applying the five-step sequential evaluation process, the ALJ found, at step one,
that Plaintiff has not engaged in substantial gainful activity since May 30, 2013,
the application date. (Id. at 13). At step two, the ALJ found that Plaintiff’s
borderline intellectual functioning and depression are severe impairments. (Id. at
13–16). At step three, the ALJ determined that Plaintiff does not have an
impairment or combination of impairments that meets or medically equals the
severity of any of the listings enumerated in the regulations. (Id. at 16–20).
The ALJ then assessed Plaintiff’s Residual Functional Capacity (RFC)3 and
determined that he can perform a full range of work at all exertional levels but with
nonexertional limitations:

Before proceeding from step three to step four, the ALJ assesses a claimant’s residual
functional capacity. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). “The RFC is the maximum
3

[Plaintiff] lacks the ability to understand, remember, and carry out
detailed instructions because of moderate limitations in concentration,
persistence, or pace, but retains the sustained concentration necessary
for simple work of a routine and repetitive type. [Plaintiff] would have
some difficulty maintaining regular attendance within a schedule and
being punctual within customary tolerances, but would be absent or
late from work no more than once per month. [Plaintiff] would not be
able to perform work requiring a production or assembly line pace, but
he would be able to perform work permitting a more flexible pace.
(R. at 20–21; see id. at 21–23). The ALJ determined at step four that Plaintiff has no
past relevant work. (Id. at 26). At step five, based on Plaintiff’s RFC and the VE’s
testimony, the ALJ determined that there are jobs that exist in significant numbers
in the national economy that Plaintiff can perform, including residential cleaner,
cafeteria assistant, and store laborer. (Id. at 24–25). Accordingly, the ALJ concluded
that Plaintiff was not suffering from a disability as defined by the Act. (Id. at 25).
The Appeals Council denied Plaintiff’s request for review on August 12, 2016. (R.
at 1–4). Plaintiff now seeks judicial review of the ALJ’s decision, which stands as
the final decision of the Commissioner. Villano v. Astrue, 556 F.3d 558, 561–62 (7th
Cir. 2009).
III. STANDARD OF REVIEW
Judicial review of the Commissioner’s final decision is authorized by § 405(g) of
the Act. In reviewing this decision, the Court may not engage in its own analysis of
whether the plaintiff is severely impaired as defined by the Social Security
Regulations. Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004). Nor may it

that a claimant can still do despite his mental and physical limitations.” Craft, 539 F.3d at
675–76.

“reweigh evidence, resolve conflicts in the record, decide questions of credibility, or,
in general, substitute [its] own judgment for that of the Commissioner.” Id. The
Court’s task is “limited to determining whether the ALJ’s factual findings are
supported by substantial evidence.” Id. (citing § 405(g)). Evidence is considered
substantial “if a reasonable person would accept it as adequate to support a
conclusion.” Indoranto v. Barnhart, 374 F.3d 470, 473 (7th Cir. 2004); see Moore v.
Colvin, 743 F.3d 1118, 1120–21 (7th Cir. 2014) (“We will uphold the ALJ’s decision
if it is supported by substantial evidence, that is, such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”) (citation
omitted). “Substantial evidence must be more than a scintilla but may be less than
a preponderance.” Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007). “In addition
to relying on substantial evidence, the ALJ must also explain his analysis of the
evidence with enough detail and clarity to permit meaningful appellate review.”
Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005).
Although this Court accords great deference to the ALJ’s determination, it “must
do more than merely rubber stamp the ALJ’s decision.” Scott v. Barnhart, 297 F.3d
589, 593 (7th Cir. 2002) (citation omitted). “This deferential standard of review is
weighted in favor of upholding the ALJ’s decision, but it does not mean that we
scour the record for supportive evidence or rack our brains for reasons to uphold the
ALJ’s decision. Rather, the ALJ must identify the relevant evidence and build a
‘logical bridge’ between that evidence and the ultimate determination.” Moon v.
Colvin, 763 F.3d 718, 721 (7th Cir. 2014). Where the Commissioner’s decision “lacks

evidentiary support or is so poorly articulated as to prevent meaningful review, the
case must be remanded.” Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002).
IV. DISCUSSION
In support for his request for reversal, Plaintiff argues that the ALJ erred in (1)
her step-three determination and (2) assessing Plaintiff’s RFC. (Dkt. 21 at 6–14).
A. The ALJ Conducted a Proper Step-Three Analysis
The ALJ determined at step three that Plaintiff does not have an impairment or
combination of impairments that meets or medically equals the severity of any of
the listings enumerated in the regulations. (R. at 16–20); see 20 C.F.R. pt. 404,
subpt. P., app. 1. Plaintiff alleges that the ALJ did not document medical signs or
laboratory findings which substantiated the presence of a mental disorder in
accordance with the “A” criteria of Listings 12.02 or 12.04 and instead focused only
on the “B” criteria of the listings. (Dkt. 21 at 7–8). Each of the § 12.00 listings
require a satisfaction of the requirements in both “A criteria” and “B criteria.”
20 C.F.R., pt. 404, subpt. P, app. 1, § 12.00 et. seq.
In this instance, the ALJ’s step-three analysis concluded that Plaintiff failed to
satisfy the “B criteria” because his mental impairments did not cause at least two
“marked” limitations or one “marked” limitation and “repeated” episodes of
decompensation. (R. at 18–20). Instead, the ALJ found that Plaintiff has mild
restrictions in activities of daily living, moderate difficulties in social functioning
and in maintaining concentration, persistence or pace, and no episodes of
decompensation. (Id.). Thus, Plaintiff would not have qualified for Listing 12.02 or

12.04 regardless of his satisfaction of the “A criteria.” Therefore, the ALJ’s failure to
discuss the “A criteria” was not in error. See Smith v. Colvin, 931 F. Supp. 2d 890,
900 (N.D. Ill. 2013) (Since claimant “failed to satisfy criterion B,” she “could not
have qualified for Listing 12.04 regardless of whether or not she satisfied criterion
A, so the ALJ’s failure to discuss that criterion was not an error.”); Flynn v. Astrue,
563 F. Supp. 2d 932, 941 (N.D. Ill. 2008) (“Since the ALJ found [claimant’s]
impairment failed to meet section B, his failure to discuss section A was
meaningless.”).
Further, Plaintiff has not identified any medical evidence that the ALJ failed to
consider or that undermines the ALJ’s “B criteria” conclusion. Eichstadt v. Astrue,
534 F.3d 663, 668 (7th Cir. 2008) (“The claimant bears the burden of producing
medical evidence that supports her claims of disability.”). Contrary to Plaintiff’s
assertion (Dkt. 21 at 9), the ALJ was permitted to rely on her own observations of
Plaintiff’s demeanor during the administrative hearing to assess his ability to
concentrate. Kelley v. Sullivan, 890 F.2d 961, 964 (7th Cir. 1989) (The ALJ “does not
commit an impropriety when he relies on his own observations during a hearing
concerning the severity of a claimant’s claim.”); accord Decker v. Colvin, No. 13 C
1732, 2014 WL 6612886, at *11 (N.D. Ill. Nov. 18, 2014). Moreover, both Terry A.
Davis, M.D., and Lionel Hudspeth, Psy.D., reviewed the medical record and opined
that Plaintiff’s impairments do not medically equal Listing 12.02 or 12.04. (R. at 60,

65, 75, 81); see Social Security Ruling (SSR)4 96-6p, at *3 (“The signature of a State
agency medical or psychological consultant on an SSA-831-U5 (Disability
Determination and Transmittal Form) or SSA-832-U5 or SSA-833-U5 (Cessation or
Continuance of Disability or Blindness) ensures that consideration by a physician
(or psychologist) designated by the Commissioner has been given to the question of
medical equivalence at the initial and reconsideration levels of administrative
review.”). And Plaintiff has not identified any medical opinion that contradicted
Drs. Davis’s and Hudspeth’s opinions. Filus v. Astrue, 694 F.3d 863, 867 (7th Cir.
2012) (ALJ did not err in accepting DDS consultants’ opinions that no listings were
met or medically equaled where “no other physician contradicted these two
opinions”).
B. The ALJ’s RFC Assessment Properly Considered Plaintiff’s Physical
Limitations, Depression, and Illiteracy
Plaintiff contends that the ALJ failed to take his back pain, ankle pain, knee
pain, headaches, and depression, and illiteracy into effect when determining his
RFC. (Dkt. 17 at 10–13). “The RFC is an assessment of what work-related activities
the claimant can perform despite her limitations.” Young, 362 F.3d at 1000; see 20
C.F.R. § 404.1545(a)(1) (“Your residual functional capacity is the most you can still
do despite your limitations.”); SSR 96-8p, at *2 (“RFC is an administrative
SSRs “are interpretive rules intended to offer guidance to agency adjudicators. While
they do not have the force of law or properly promulgated notice and comment regulations,
the agency makes SSRs binding on all components of the Social Security Administration.”
Nelson v. Apfel, 210 F.3d 799, 803 (7th Cir. 2000); see 20 C.F.R. § 402.35(b)(1). While the
Court is “not invariably bound by an agency’s policy statements,” the Court “generally
defer[s] to an agency’s interpretations of the legal regime it is charged with
administrating.” Liskowitz v. Astrue, 559 F.3d 736, 744 (7th Cir. 2009).
4

assessment of the extent to which an individual’s medically determinable
impairment(s), including any related symptoms, such as pain, may cause physical
or mental limitations or restrictions that may affect his or her capacity to do workrelated physical and mental activities.”). The RFC is based upon medical evidence
as well as other evidence, such as testimony by the claimant or his friends and
family. Craft v. Astrue, 539 F.3d 668, 676 (7th Cir. 2008). In assessing a claimant’s
RFC, “the ALJ must evaluate all limitations that arise from medically determinable
impairments, even those that are not severe,” and may not dismiss evidence
contrary to the ALJ’s determination. Villano, 556 F.3d at 563; see 20 C.F.R.
§ 404.1545(a)(1) (“We will assess your residual functional capacity based on all
relevant evidence in your case record.”); SSR 96-8p, at *7 (“The RFC assessment
must include a discussion of why reported symptom-related functional limitations
and restrictions can or cannot reasonably be accepted as consistent with the medical
and other evidence.”).
After carefully examining the record, the Court finds that the ALJ’s
determination of Plaintiff’s RFC was thorough, thoughtful, and fully grounded in
the medical evidence. Reviewing the ALJ’s decision “as a whole in order to give it
the most sensible reading,” Carter v. Colvin, No. 12 CV 745, 2014 WL 4825272, at
*4 n.1 (S.D. Ill. Sept. 29, 2014), the ALJ appropriately considered the combined
impact of Plaintiff’s severe and nonsevere impairments, see Rice v. Barnhart, 384
F.3d 363, 369 (7th Cir. 2004) (“we will nonetheless give the opinion a
commonsensical reading rather than nitpicking at it”) (citation omitted).

Plaintiff contends that the ALJ’s RFC finding “does not take into consideration
the physical problems documented throughout the medical record for which Plaintiff
was continually seeking medical treatment for relief,” including “such symptoms as
back pain, ankle pain, knee pain, [and] headaches.” (Dkt. 21 at 11). But no medical
source opined that Plaintiff has any physical limitations. Instead, the only evidence
of such limitations comes from Plaintiff’s symptom statements, which the ALJ
properly rejected as only partially credible. (R. at 14–16, 21–22, 23). And Plaintiff
does not contend that the ALJ’s subjective symptom evaluation was faulty. Beyond
his own testimony, Plaintiff fails to identify medical evidence to support any
physical limitations. SSR 96-4p, at *1 (“No symptom or combination of symptoms
can be the basis for a finding of disability, no matter how genuine the individual’s
complaints may appear to be, unless there are medical signs and laboratory findings
demonstrating the existence of a medically determinable physical or mental
impairment.”).5
Plaintiff also asserts that the ALJ “did not adequately incorporate the diagnosis
of major depressive disorder, recurrent into her RFC.” (Dkt. 21 at 13) (citation
omitted). But Plaintiff fails to identify what additional nonexertional limitations
are appropriate or how they are supported by the medical evidence. Pepper v.
Colvin, 712 F.3d 351, 367 (7th Cir. 2013) (claimant bears the burden to demonstrate

Plaintiff complains that because the RFC includes no exertional limitations, it
encompasses “very heavy work,” which involves lifting up to 100 pounds. (Dkt. 21 at 11).
However, of the jobs the VE testified that Plaintiff could perform, two are at the light level
(lifting no more than 20 pounds), and the other is at the medium level (lifting no more than
50 pounds). (R. at 24).
5

how his mental impairments affects his ability to work). Plaintiff argues that the
ALJ “failed to undertake a functional analysis in accordance with SSR 96-8p.” (Dkt.
21 at 10). However, the Seventh Circuit has rejected such a formulaic approach;
instead, “a narrative discussion of a claimant’s symptoms and medical source
opinions is sufficient.” Knox v. Astrue, 327 F. App’x 652, 657 (7th Cir. 2009); see
Lewis v. Astrue, 518 F. Supp. 2d 1031, 1043 (N.D. Ill. 2007) (“The plain language of
SSR 96-8p requires the adjudicator to ‘consider, not articulate,’ Claimant’s RFC in a
function-by-function basis.”). Here, the ALJ thoroughly reviewed the medical
evidence, including Plaintiff’s treatment records, the consultative examinations,
Plaintiff’s testimony, and the medical opinions to determine Plaintiff’s RFC. (R. at
21–23).
Finally, Plaintiff contends that the ALJ failed to account for his illiteracy and
being a slow learner. (Dkt. 21 at 13–14). But a claimant is illiterate only if he
“cannot read or write a simple message.” 20 C.F.R. § 416.964(b)(1). And here, the
ALJ noted that Plaintiff has a 10th grade education and received B’s and C’s in
school. (R. at 22, 24, 38); see C.F.R. § 416.964(b)(1) (“Generally, an illiterate person
has had little or no formal schooling.”); Howard v. Massanari, 255 F.3d 577, 584
(8th Cir. 2001) (“Although some 9th graders may be functionally illiterate, the more
common inference is that persons with nine years of public education possess some
ability to read.”). Instead, the ALJ reasonably found that Plaintiff had a “limited
education.” (R. at 24, 54). A finding of “limited education” means an “ability in
reasoning, arithmetic, and language skills, but not enough to allow a person with

these educational qualifications to do most of the more complex job duties needed in
semi-skilled or skilled jobs. We generally consider that a 7th grade through the 11th
grade level of formal education is a limited education.” 20 C.F.R. § 416.964(b)(3).
Accordingly, the ALJ restricted Plaintiff to “simple work of a routine and repetitive
type.” (R. at 20–21). The ALJ’s finding was supported by substantial evidence. See
Glenn v. Sec’y of Health & Human Servs., 814 F.2d 387, 391 (7th Cir. 1987)
(affirming the ALJ’s literacy determination where claimant had fourth or sixth
grade education, could “write only the simplest messages,” and could “comprehend
only the simplest written instructions”); Hazelwood v. Astrue, No. 11 CV 0103, 2012
WL 1301234, at *3 (N.D. Ind. Apr. 16, 2012) (where claimant completed 9th grade
and was able to write simple messages, ALJ’s conclusion that he was not illiterate
was supported by substantial evidence).
V. CONCLUSION
For the reasons stated above, Plaintiff’s Motion for Summary Judgment [21] is
DENIED, and Defendant’s Motion for Summary Judgment [23] is GRANTED.
Pursuant to sentence four of 42 U.S.C. § 405, the ALJ’s decision is affirmed.

Dated: September 18, 2017

E N T E R:

MARY M. ROWLAND
United States Magistrate Judge