Blue v. Commissioner of Social Security
Filing
29
MEMORANDUM AND OPINION affirming the final decision of the Commissioner of Social Security. The Clerk of Court shall enter judgment in favor of defendant. Signed by Magistrate Judge Clifford J. Proud on 6/20/2013. (jmt)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LOUISE BLUE,
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Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
Civil No. 12-cv-979-CJP
MEMORANDUM and ORDER
PROUD, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), plaintiff Louise Blue, through counsel,
seeks review of the final decisions of the Commissioner of Social Security which
terminated her eligibility for Supplemental Security Income (SSI) and denied her
application for Disability Insurance Benefits (DIB). 1
A.
Procedural History
In 1993, Ms. Blue’s application for SSI was approved on a finding that she met the
requirements of Listing 12.05B based on her moderate mental retardation and
personality disorder. (Tr. 27, 420-428). In September, 2009, the agency notified
plaintiff that her benefits were being discontinued because the decision approving her
application “was made in error.” (Tr. 61). The discontinuation of benefits was
affirmed on reconsideration. While the discontinuation of SSI benefits was under
This case was referred to the undersigned for final disposition upon consent of the parties, pursuant to
28 U.S.C. §636(c). See, Doc. 28.
1
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consideration, plaintiff applied for DIB based on quarters of coverage she accrued by
working part-time while receiving SSI. The two claims were consolidated, and, after
holding a hearing, ALJ Robert J. O’Blennis issued two written decisions on July 22, 2011.
The first decision found that the prior decision awarding her SSI benefits had been made
in error. (Tr. 680-692). The second decision denied her application for DIB. (Tr.
13-25). The Appeals Council denied review, and the July 22, 2011, decisions became the
final agency decisions subject to judicial review. (Tr. 7). Administrative remedies
have been exhausted and a timely complaint was filed in this Court.
B.
Issues Raised by Plaintiff
Plaintiff raises the following points:
1.
The time period specified by the regulations for reopening a claim based
on error rather than on medical improvement had expired, so the ALJ had
no authority to discontinue plaintiff’s SSI benefits in 2009.
2.
If plaintiff’s SSI benefits were wrongfully terminated, she was also entitled
to DIB benefits because the definition of disability is the same for both
kinds of benefits.
C.
Applicable Legal Standards
To qualify for DIB or SSI, a claimant must be disabled within the meaning of the
applicable statutes. 2 For these purposes, “disabled” means the “inability to engage in
2
The statutes and regulations pertaining to Disability Insurance Benefits (DIB) are found at 42 U.S.C. §
423, et seq., and 20 C.F.R. pt. 404. The statutes and regulations pertaining to SSI are found at 42 U.S.C. §§
1382 and 1382c, et seq., and 20 C.F.R. pt. 416. For all intents and purposes relevant to this case, the DIB
and SSI statutes are identical. Furthermore, 20 C.F.R. § 416.925 detailing medical considerations relevant
to an SSI claim, relies on 20 C.F.R. Pt. 404, Subpt. P, the DIB regulations. Most citations herein are to the
DIB regulations out of convenience.
2
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).
A “physical or mental impairment” is an impairment resulting from anatomical,
physiological, or psychological abnormalities which are demonstrable by medically
acceptable clinical and laboratory diagnostic techniques. 42 U.S.C. §423(d)(3).
However, limitations arising from alcoholism or drug use are excluded from
consideration of whether a claimant is disabled. 42 U.S.C. §423(d)(2)(C); 20 C.F.R.
§404.1535.
“Substantial gainful activity” is work activity that involves doing significant
physical or mental activities, and that is done for pay or profit. 20 C.F.R. §§ 404.1572.
Social Security regulations set forth a sequential five-step inquiry to determine
whether a claimant is disabled. The Seventh Circuit Court of Appeals has explained
this process as follows:
The first step considers whether the applicant is engaging in substantial
gainful activity. The second step evaluates whether an alleged physical or
mental impairment is severe, medically determinable, and meets a
durational requirement. The third step compares the impairment to a list of
impairments that are considered conclusively disabling. If the impairment
meets or equals one of the listed impairments, then the applicant is
considered disabled; if the impairment does not meet or equal a listed
impairment, then the evaluation continues. The fourth step assesses an
applicant's residual functional capacity (RFC) and ability to engage in past
relevant work. If an applicant can engage in past relevant work, he is not
disabled. The fifth step assesses the applicant's RFC, as well as his age,
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education, and work experience to determine whether the applicant can
engage in other work. If the applicant can engage in other work, he is not
disabled.
Weatherbee v. Astrue, 649 F.3d 565, 568-569 (7th Cir. 2011).
Stated another way, it must be determined: (1) whether the claimant is presently
unemployed; (2) whether the claimant has an impairment or combination of
impairments that is serious; (3) whether the impairments meet or equal one of the listed
impairments acknowledged to be conclusively disabling; (4) whether the claimant can
perform past relevant work; and (5) whether the claimant is capable of performing any
work within the economy, given his or her age, education and work experience. 20
C.F.R. §§ 404.1520; Simila v. Astrue, 573 F.3d 503, 512-513 (7th Cir. 2009); Schroeter v.
Sullivan, 977 F.2d 391, 393 (7th Cir. 1992).
If the answer at steps one and two is “yes,” the claimant will automatically be
found disabled if he or she suffers from a listed impairment, determined at step three.
If the claimant does not have a listed impairment at step three, and cannot perform his or
her past work (step four), the burden shifts to the Secretary at step five to show that the
claimant can perform some other job. Rhoderick v. Heckler, 737 F.2d 714, 715 (7th Cir.
1984). See also, Zurawski v. Halter, 245 F.3d 881, 886 (7th Cir. 2001)(Under the five-step
evaluation, an “affirmative answer leads either to the next step, or, on Steps 3 and 5, to a
finding that the claimant is disabled…. If a claimant reaches step 5, the burden shifts to the
ALJ to establish that the claimant is capable of performing work in the national economy.”).
Once a claimant has been awarded SSI benefits, the agency undertakes a periodic
4
review of continued eligibility to receive benefits. This is referred to as a continuing
disability review. 20 C.F.R. §§416.989. Social Security regulations set forth a
sequential seven-step inquiry to determine whether a claimant is under a continuing
disability. The seven steps are set forth in 20 C.F.R. §416.994(b)(5):
1. Does the beneficiary’s impairment or combination of impairments meet
or equal the Listings? If yes, disability is continued.
2. If the beneficiary’s impairments do not meet or equal the Listings, has
there been medical improvement? If yes, the sequential analysis
proceeds to step three; if no, it proceeds to step four.
3. Is the medical improvement related to the beneficiary’s ability to work?
If yes, the sequential analysis proceeds to step five; if no, it proceeds to
step four.
4. If there is no medical improvement, or if the medical improvement is
not related to the beneficiary’s ability to work, does one of the
exceptions to medical improvement apply? If the exception does
apply, the beneficiary is no longer disabled. If none of the exceptions
apply, the sequential analysis continues.
5. If medical improvement is related to the ability to work, are all current
impairments severe in combination? If not, the beneficiary is no
longer disabled.
6. If the impairments are severe, the Commissioner determines the
beneficiary’s residual functional capacity (RFC), and considers whether
he can do his past work. If the beneficiary can do his past work,
disability will be found to have ended.
7. If the beneficiary cannot do his past work, the Commissioner decides
whether he can do other work given his RFC, and considering his age,
education, and past work experience. If the beneficiary can do other
work, he is no longer disabled; if not, disability is continued.
This Court reviews the Commissioner’s decision to ensure that the decision is
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supported by substantial evidence and that no mistakes of law were made. The scope
of review is limited. “The 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).
Thus, this Court must determine not whether Ms. Blue was, in fact, disabled during the
relevant time period, but whether the ALJ’s findings were supported by substantial
evidence and whether any errors of law were made. See, Books v. Chater, 91 F.3d 972,
977-78 (7th Cir. 1996) (citing Diaz v. Chater, 55 F.3d 300, 306 (7th Cir. 1995)). This Court
uses the Supreme Court’s definition of substantial evidence, i.e., “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971).
In reviewing for “substantial evidence,” the entire administrative record is taken
into consideration, but this Court does not reweigh evidence, resolve conflicts, decide
questions of credibility, or substitute its own judgment for that of the ALJ. Brewer v.
Chater, 103 F.3d 1384, 1390 (7th Cir. 1997). However, while judicial review is
deferential, it is not abject; this Court does not act as a rubber stamp for the
Commissioner. See, Parker v. Astrue, 597 F.3d 920, 921 (7th Cir. 2010), and cases cited
therein.
D.
The Decisions of the ALJ
ALJ O’Blennis applied 20 C.F.R. §416.994 to determine whether plaintiff
continued to be eligible to receive SSI benefits. He noted that she had been found
disabled based on the results of IQ testing administered by consultative examiner
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Donald T. Cross, Ph.D. Dr. Cross stated in his report that the results of the testing were
valid, and he diagnosed moderate mental retardation. ALJ O’Blennis determined that
substantial evidence established that she was not, in fact, mentally retarded, and that the
1993 decision awarding her benefits was made in error. Continuing on with the
seven-step sequential analysis, he found that plaintiff had severe impairments of
glaucoma, hypothyroidism, history of right rotator cuff surgery, arthritis of the hands,
breathing problems, depression, anxiety and substance abuse. He found that these
impairments did not meet or equal a listed impairment. The ALJ found that Ms. Blue
had the residual functional capacity to perform work at the medium exertional level,
with limitations. Based on evidence from a vocational expert, he concluded that
plaintiff was able to do jobs which exist in significant numbers in the regional and local
economies. (Tr. 680-692).
In his decision on plaintiff’s 2010 application for DIB, ALJ O’Blennis followed the
five-step analytical framework described above. He determined that Ms. Blue had not
been engaged in substantial gainful activity and that she was insured for DIB through
March 31, 2011. The rest of the analysis mirrored the findings in the decision on
termination of SSI benefits. (Tr. 13-25).
E.
The Evidentiary Record
The Court has reviewed and considered the entire evidentiary record in
formulating this Memorandum and Order. The following summary of the record is
directed to the points raised by plaintiff.
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1.
Records Related to Application for SSI (1992)
Louise Blue was born in September, 1963. She applied for SSI in December, 1992,
and July, 1993. (Tr. 169-172, 173-185). In the first application, she said she was
disabled because of drugs and alcohol. In the second application, the basis for
disability was mental limitations.
In a Disability Report, plaintiff said that she was disabled because of “illiterate,
problems with back, addicted to alcohol and cocaine.” (Tr. 227).
Max Givon, Ph.D., performed a consultative psychological exam on March 13,
1993. Ms. Blue chain-smoked throughout the exam and turned her chair so that she
was facing away from Dr. Givon. He described her behavior as noteworthy for “very
poor cooperation, evasiveness and vagueness.” Her responses to mental status
questions were “often obviously contrived to the point of absurdity.” Dr. Givon
attempted to administer IQ testing, but, due to plaintiff’s contrived responses, the test
did not yield valid scores. His impression was that Ms. Blue was “not retarded despite
her attempts to present herself as extremely limited intellectually.” (Tr. 407-410).
A second consultative psychological exam was performed by Donald T. Cross,
Ph.D., in June, 1993. He administered the Wechsler Adult Intelligence Scale (WAIS-R).
Dr. Cross noted that Ms. Blue was a twenty-nine year old single woman who was
cocaine and alcohol dependent. She had recently completed a twenty-eight day
inpatient treatment program for chemical dependence. She had a ninth grade
education. She had four children, ranging in age from one to thirteen years old. (Tr.
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411-414). Ms. Blue’s scores on the WAIS-R were Full Scale Score of 53, Verbal Scale of
61 and Performance Scale of 52. These scores put her in the moderate mental
retardation range of intellectual functioning. Dr. Cross stated that this was an “accurate
estimate of Ms. Blue’s current level of intellectual functioning.” His Axis I diagnosis
was polysubstance dependence. His Axis II diagnosis was personality disorder,
anti-social. (Tr. 415-418).
A state agency consultant completed a Psychiatric Review Technique form in
which he indicated that Ms. Blue met the requirements of Listing 12.05 B, i.e., a “valid
verbal, performance, or full scale I.Q. of 59 or less.” She also had a personality disorder
and a substance addiction disorder.
(Tr. 420- 428).
In July, 1993, Ms. Blue’s application for SSI was approved for the reason that she
met Listing 12.05B. (Tr. 27, 44).
2.
Records Related to Cessation of SSI Benefits (2009)
In September, 2009, the agency notified Ms. Blue that it had determined that she
was no longer entitled to SSI benefits because the 1992 decision finding her disabled was
made in error. (Tr. 61).
After holding a hearing, ALJ O’Blennis issued a written decision finding her no
longer entitled to receive SSI benefits because the prior decision finding her disabled had
been made in error, citing 20 C.F.R. §416.994(b)(3)(iv)(A). (Tr. 682).
3.
Records Related to Application for DIB (2010)
While her request for a hearing on the cessation of SSI benefits was pending,
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plaintiff applied for DIB. She alleged that she had been disabled since November 1,
1992. (Tr. 190-191).
Based upon quarters of coverage earned from working while she was receiving
SSI benefits, plaintiff was insured for DIB through March 31, 2011. (Tr. 204). In 2001,
plaintiff earned $11,459.94. In 2007, she earned $7,085.46. In 2008, she earned
$6,807.00. (Tr. 205).
Plaintiff stated in a Disability Report that she was unable to work because of
glaucoma. (Tr. 240). She had worked at various jobs through a temp agency from 1999
through May, 2007. From May to October, 2007, she worked as a housekeeper in a
hotel. (Tr. 241). She completed the 9th grade and had not been in special education
classes. (Tr. 244).
4.
Evidentiary Hearing
ALJ O’Blennis continued the evidentiary hearing from the first setting so that
plaintiff could find a lawyer. (Tr. 631-636). Plaintiff appeared without an attorney on
May 26, 2011, and indicated that she wanted to proceed. A friend, James Moore, was
with her. (Tr. 640-641).
Ms. Blue was 47 years old at the time of the hearing. She lived with her 19
year-old daughter. (Tr. 642). She left school in the 10th grade. (Tr. 646).
Plaintiff worked at a number of jobs while on SSI. She worked as a packer on an
assembly line, a hotel housekeeper, and assembler of harnesses for cars. (Tr. 646-649).
She said that she left the last job because she “lost the grip” in her hands. (Tr. 650).
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Ms. Blue was in a drug and alcohol treatment program at the time of the hearing.
This was the sixth time that she was going through a rehab program. (Tr. 651-653).
Plaintiff testified that she had pain in her right shoulder and that she had her
rotator cuff “replaced” about four or five years earlier. She said that she had problems
with her hands. She could not lift anything heavier than a broom. Her mother and her
daughter helped her with housework. Before she entered the rehab program, she spent
her time watching television. She used alcohol and crack cocaine. She said that she
could write but could not read. (Tr. 653-664).
Mr. Moore testified that plaintiff had anxiety attacks and sometimes did not
understand things. (Tr. 665).
A vocational expert (VE) also testified. The ALJ asked him to assume a person
who could lift 25 pounds frequently and 50 pounds occasionally, sit for a total of 6 out of
8 hours, stand and/or walk for 6 out of 8 hours, and was limited to only occasional
postural activities, including crouching and crawling, with no climbing of ladders, ropes
and scaffolds and no work at unprotected heights or with dangerous machinery. She
should avoid overhead reaching with the right arm and forceful pushing and pulling
with the right arm. She was further limited to simple, repetitive work with no close
interaction with the general public. The VE testified that this person could do a variety
of unskilled jobs at the light to medium exertional level, such as assembler, cleaner,
packer and wrapper. If she were limited to lifting only 10 pounds and
walking/standing for only 2 hours a day, she would be able to do sedentary jobs such as
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assembler and product inspector. All of the jobs existed in significant numbers. (Tr.
669- 671).
5.
Medical Records
Ms. Blue saw her primary care physician, Dr. Hussain, in 2007 for
hypothyroidism, musculoskeletal pain, sore throat and earache. (Tr. 462-463).
In March, 2008, Ms. Blue saw Dr. Hussain for medical clearance to enter a
substance abuse rehab program. He noted that she had relapsed on alcohol and cocaine
after having been clean for four years. He indicated that she had hypothyroidism and
was not compliant with treatment. (Tr. 461).
Harry J. Deppe, Ph.D., performed a consultative psychological exam on June 19,
2008. Plaintiff told him that she was seeking disability due to glaucoma. He felt she
was functioning at “an approximate average level of intellectual ability.” (Tr. 520).
Her fund of general knowledge was good. Her memory for recent and more remote
events was good. Immediate memory was fair. Her abstract reasoning skills were
good, and judgment and insight were adequate. The Axis I diagnosis was
polysubstance dependence. The Axis III diagnosis was glaucoma. (Tr. 519-522).
An eye doctor examined plaintiff on June 26, 2008, and concluded that she had
suspected glaucoma. Her uncorrected vision was 20/40 in both eyes. Tension in the
right eye was 11mm, and tension in the left eye was 12 mm. (Tr. 523-524).
In October, 2008, she had pain and muscle spasm in her shoulders. (Tr. 492).
Dr. Adrian Feinerman examined plaintiff in August, 2009. He found no
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abnormalities except that she had an enlarged thyroid. Neurological and motor
examinations were normal. She had no joint redness, swelling, heat or thickening.
Grip strength was strong and equal. Muscle strength was normal throughout. Fine
and gross manipulation were normal. Straight leg raising was negative. She was able
to lift, carry and handle objects without difficulty. She had a full range of motion. (Tr.
527-536).
In January, 2011, Ms. Blue went to the emergency room complaining of epigastric
pain, back pain and right flank pain. She denied any history of alcohol or drug use.
On exam, she had a full range of motion of the extremities, full muscle strength, intact
sensation and a normal gait. (Tr. 570). The diagnosis was epigastric pain and GERD.
(Tr. 576).
Plaintiff was admitted to the hospital though the emergency room for chest pains
and generalized weakness in April, 2011. She admitted to being noncompliant with her
medications and to using alcohol and cocaine. She had a normal echocardiogram and
stress test, and was discharged. (Tr. 581-587).
In May, 2011, x-rays of plaintiff’s hands showed early arthritic changes. (Tr.
579-580).
In June, 2011, Dr. Hussain’s office completed a medical assessment form for the
SMARTS substance abuse treatment program. The form states that the doctor treated
her for hypothyroidism, hypertension, urinary incontinence, GERD, anxiety and muscle
spasms/pain. She was noted to be stable and able to attend a residential drug
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treatment program. (Tr. 628).
6.
State Agency Consultant’s RFC Assessment
A state agency consultant completed a Psychiatric Review Technique form in
September, 2009. He indicated that Ms. Blue did not have a severe mental impairment.
He wrote that she was functioning well above the level of a person with a full-scale IQ of
53. (Tr. 541-553).
A state agency consultant assessed plaintiff’s physical RFC based on a review of
the records in September, 2009. He opined that plaintiff was able to do work at the
medium exertional level, limited to only frequent, i.e., less than two-thirds of the day,
postural activities. He noted that plaintiff had been diagnosed with glaucoma, but she
had nonsevere visual acuity deficit and no evidence of visual field impairment. (Tr.
554-561).
F.
Analysis
The Commissioner undertakes periodic review of whether an SSI recipient is
entitled to continue to receive disability benefits. This is referred to a continuing
disability review. See, 20 C.F.R. §416.989.
Congress has authorized the Commissioner to terminate disability benefits where
substantial evidence shows that the recipient has had medical improvement or “a prior
determination was in error.” 42 U.S.C. §423(f)(4).
The determination that a prior decision awarding benefits was made in error is
one of so-called the “exceptions to medical improvement,” meaning that “disability can
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be found to have ended even though medical improvement has not occurred.” 20
C.F.R. §416.994(b)(3).
The regulations place a time limit on the Commissioner’s ability to terminate
benefits because the prior decision was made in error. The exception for error can only
be applied to past decisions within the timeframes for reopening a prior decision.
20
C.F.R. §416.994(b)(3)(iv)(D). The timeframes for reopening a prior decision are set forth
in 20 C.F.R. §416.1488. A prior decision can be reopened only (a) within 12 months, for
any reason, (b) within 24 months for good cause, or (c) at any time if the initial decision
was obtained by fraud or similar fault.
The initial decision awarding Ms. Blue benefits was made in 1993. The
Commissioner does not take the position that the initial decision was obtained by fraud
or similar fault. Therefore, she concedes, as she must, that the ALJ erred in applying the
exception for error in this case. However, she argues that any such error was harmless.
See, Doc. 24, pp. 13-14.
The doctrine of harmless error, as applied to judicial review of administrative
decisions, means that “If it is predictable with great confidence that the agency will
reinstate its decision on remand because the decision is overwhelmingly supported by
the record though the agency's original opinion failed to marshal that support, then
remanding is a waste of time.” Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir. 2010).
Here, it can be predicted with great confidence that the agency would reach the
same decision on remand.
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Although ALJ O’Blennis applied an exception to medical improvement, he, in
effect, made a determination that medical improvement had occurred because he
considered whether plaintiff’s condition met a listed impairment at the time of his July,
2011, decisions. The regulation on exceptions to medical improvement must be read in
conjunction with the provision on continuing review where the prior decision found
disability because a Listing was met. In such a case,
If our most recent favorable decision was based on the fact that your
impairment(s) at the time met or equaled the severity contemplated by the
Listing of Impairments in appendix 1 of subpart P of part 404 of this
chapter, an assessment of your residual functional capacity would not
have been made. If medical improvement has occurred and the severity of
the prior impairment(s) no longer meets or equals the same listing section
used to make our most recent favorable decision, we will find that the
medical improvement was related to your ability to work.
20 C.F.R. §416.994(b)(2)(iv)(A).
The ALJ determined that plaintiff’s condition did not meet or equal a Listing in
2011. (Tr. 19-20, 683-685). Plaintiff has not argued this determination was erroneous.
In fact, substantial evidence supports the finding that plaintiff’s mental impairments did
not meet or equal a Listing in 2011, including the Listing for mental retardation. First,
as the ALJ noted, plaintiff claimed in 2009 that she was disabled because of conditions
other than mental retardation. (Tr. 14-15, 685-686). Further, Dr. Deppe’s examination
did not in any way suggest that she was mentally retarded. Dr. Deppe concluded that
she was functioning at “an approximate average level of intellectual ability.” (Tr. 520).
The ALJ noted that Dr. Deppe found that plaintiff had no difficulty staying on task, was
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relevant and coherent, and her memory was fair to good. Dr. Deppe diagnosed
polysubstance dependence and opined that she had fair ability to perform work-related
activities. (Tr. 16, 687). The ALJ also cited Dr. Feinerman’s observation that plaintiff
was oriented with normal memory and concentration. (Tr. 17, 688). Further, a state
agency consultant opined in September, 2009, that Ms. Blue did not have a severe mental
impairment and that she was functioning well above the level of a person with a
full-scale IQ of 53. (Tr. 541-553). Lastly, no health care provider or lay witness, not
even plaintiff herself, described plaintiff as mentally retarded in connection with the
continuing disability review or the application for DIB. Therefore, the Court concludes
that the record overwhelmingly supports the ALJ’s finding that Ms. Blue’s mental
impairments did not meet or equal a Listing in 2011.
The fact that plaintiff did not meet or equal a Listing in 2011 is deemed to be a
finding that medical improvement related to ability to work has occurred, per 20 C.F.R.
§416.994(b)(2)(iv)(A), quoted above.
The ALJ performed the continuing disability review sequential analysis through
steps 5, 6 and 7. His analysis mirrors his analysis on the five-step sequential analysis on
plaintiff’s DIB claim. He determined that she had severe impairments which did not
meet or equal a Listing, he assessed her RFC, and he determined that she was able to do
work which exists in significant numbers in the economy. Plaintiff does not argue that
his findings at any step along the way were erroneous. Her only argument with respect
to the DIB application is that the decision to terminate her SSI benefits was erroneous
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and the definition of disability is the same for DIB and SSI.
The ALJ’s error in applying the exception to medical improvement beyond the
time limits set forth in the regulation is harmless in the circumstances of this case. The
record overwhelmingly supports the ALJ’s finding that Ms. Blue did not meet or equal
the requirements of the Listing on mental retardation in 2011. By definition, under 20
C.F.R. §416.994(b)(2)(iv)(A), if she no longer meets a Listing that she previously met,
medical improvement has occurred.
Plaintiff filed a reply brief in which she restates her timeliness argument, but she
does not identify any error with respect to the finding that she did not meet or equal the
requirements of the Listing on mental retardation in 2011. Her argument ignores 20
C.F.R. §416.994(b)(2)(iv)(A). The Court can predict with great confidence that any
reasonable ALJ would reach the same decision on remand. “It would serve no purpose
to remand this case to the ALJ for a statement of the obvious.” McKinzey v. Astrue, 641
F.3d 884, 892 (7th Cir. 2011).
G.
Conclusion
The Commissioner’s final decisions terminating Louise Blue’s SSI benefits and
denying her application for DIB are AFFIRMED.
The Clerk of Court is directed to enter judgment in favor of defendant.
IT IS SO ORDERED.
DATED: June 20, 2013.
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s/ Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE
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