Prater v. Commissioner of Social Security

Filing 26

MEMORANDUM AND OPINION. The final decision of the Commissioner of Social Security finding plaintiff no longer disabled and terminating her Disability Insurance Benefits is AFFIRMED. Signed by Magistrate Judge Clifford J. Proud on 12/28/2018. (jmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
GENEY J. P., 1

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Plaintiff,
vs.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

Case No. 18-cv-608-CJP 2

MEMORANDUM and ORDER
PROUD, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), plaintiff, represented by counsel,
seeks judicial review of the final agency decision terminating her Disability
Insurance Benefits (DIB) pursuant to 42 U.S.C. § 423.
Procedural History
In a decision dated August 2011, plaintiff was found disabled beginning in
February 2007. (Tr. 101-07). Following a periodic review, the agency determined
that she was no longer disabled as of April 1, 2015. (Tr. 114). Plaintiff requested
a hearing before an ALJ. ALJ Diana Erickson held a hearing at which plaintiff
appeared without counsel.

(Tr. 27-67).

After the hearing, the ALJ obtained

additional medical evidence and notified plaintiff by letter of the new evidence and

The Court will not use plaintiff’s full name in this Memorandum and Order in order to protect her
privacy. See, Fed. R. Civ. P. 5.2(c) and the Advisory Committee Notes thereto.
2
This case was assigned to the undersigned for final disposition upon consent of the parties
pursuant to 28 U.S.C. §636(c). See, Doc. 16.
1

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her right to request a supplemental hearing. (Tr. 275-76). Plaintiff wrote a letter
in response in which she addressed the post-hearing evidence, but did not request
another hearing. (Tr. 277). In March 2017, the ALJ issued a decision finding
that plaintiff was able to perform a reduced range of light work as of April 1, 2015.
(Tr. 15-22).

The Appeals Council denied review, and the decision of the ALJ

became the final agency decision. (Tr. 1). Administrative remedies have been
exhausted and a timely complaint was filed in this Court.
Issues Raised by Plaintiff
Plaintiff raises the following points:
1.

The ALJ failed to comply with HALLEX I-2-528D by failing to schedule
a supplemental hearing.

2.

The ALJ failed to properly consider RFC.
Applicable Legal Standards

To qualify for DIB, a claimant must be disabled within the meaning of the
applicable statutes and regulations. For these purposes, “disabled” means 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).
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. §
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423(d)(3).

“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.
Once a claimant has been awarded benefits, the agency undertakes a periodic
review of continued eligibility to receive benefits.

20 C.F.R. §§404.1589,

404.1594(a). Social Security regulations set forth a sequential eight-step inquiry
to determine whether a claimant is under a continuing disability. The eight steps
are set forth in 20 C.F.R. §404.1594(f):
1.
Is the beneficiary engaging in substantial gainful activity? If yes (and there is
no issue of a trial work period), the beneficiary is no longer disabled.
2.
If the beneficiary is not engaging in substantial gainful activity, does his
impairment or combination of impairments meet or equal the Listings? If yes,
disability is continued.
3.
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 four; if
no, it proceeds to step five.
4.
Is the medical improvement related to the beneficiary’s ability to work, i.e.,
has there been an increase in the residual functional capacity? If yes, the
sequential analysis proceeds to step six; if no, it proceeds to step five.
5.
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.
6.
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.
7.
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.
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8.
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.
The continuing disability determination is to be made “on the basis of all the
evidence available in the individual’s case file, including new evidence concerning
the individual's prior or current condition” and on a “neutral basis . . . without any
initial inference as to the presence or absence of disability being drawn from the fact
that the individual has previously been determined to be disabled.” 42 U.S.C. §
423(f); 20 C.F.R. § 404.1594(b)(6).
Medical improvement is any decrease in the medical severity of the
beneficiary’s impairment; the determination is based on improvement in
symptoms, signs and/or laboratory findings.

20 C.F.R. § 404.1594(b)(1).

Medical improvement is related to ability to work if there has been a decrease in the
severity of the impairment(s) and an increase in the functional capacity to do basic
work activities. 20 C.F.R. § 404.1594(b)(3). The comparison point is the time of
the most recent favorable medical decision that the individual was disabled or
continued to be disabled.

20 C.F.R. § 404.1594(b)(7).

In this case, the

comparison point used by the ALJ was August 11, 2011, the date of the most recent
favorable decision that plaintiff was disabled. (Tr. 17).
This Court reviews the Commissioner’s decision to ensure that the decision
is supported by substantial evidence and that no mistakes of law were made. It is
important to recognize that the scope of review is limited. “The findings of the
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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 plaintiff was, in fact, disabled at the relevant time, but
whether the ALJ’s findings were supported by substantial evidence and whether
any errors of law were made. Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539
(7th Cir. 2003). 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. Jens v. Barnhart, 347 F.3d 209, 212 (7th Cir. 2003). 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.
The Decision of the ALJ
ALJ Erickson undertook the eight-step analytical process described above.
She determined that, as of the comparison point decision, plaintiff had medically
determinable impairments of rheumatoid arthritis and autoimmune hepatitis.
She had not engaged in substantial gainful activity through the date of the decision
and had not developed any additional impairments since the date of comparison
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point decision.
At steps three and four, the ALJ determined that there had been medical
improvement and that such improvement was related to plaintiff’s ability to work.
Proceeding to step six, she determined that plaintiff’s impairments were severe.
She determined that plaintiff had the RFC to perform work at the light exertional
level, limited to only frequent handling and fingering bilaterally; no exposure to
hazards or extreme cold; and no climbing of ladders, ropes, or scaffolds. Relying
on the testimony of a vocational expert, the ALJ concluded that plaintiff could not
do her past relevant work as a CNA, but she could perform other jobs which exist in
significant numbers in the national economy.
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.
1.

Agency Forms

Plaintiff was born in 1986 and was almost 31 years old on the date of ALJ
Erickson’s decision. (Tr. 204).
In October 2014, plaintiff said she was disabled because of rheumatoid
arthritis (RA) and autoimmune hepatitis. She did not use an assistive device.
(Tr. 208). She reported that she got her kids off to school in the morning, cleaned
up after their breakfast, then took a nap and tried to do chores around the house.

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When her kids got home from school, she got them a snack and helped with
homework.

She helped her husband make dinner if she felt up to it.

(Tr.

218-219). Plaintiff said she could lift only ten pounds and could walk for only ¼ of
a mile. Using her hands caused moderate to severe pain. (Tr. 240).
2.

Evidentiary Hearing

Plaintiff was not represented by an attorney at the evidentiary hearing in
October 2016. (Tr. 30-32).
Plaintiff said she saw her regular physicians, Drs. Korenblat and DiValerio,
about twice a year. The ALJ noted that they were missing some records and that
she would get them. (Tr. 35-38).
Plaintiff lived with her husband, children aged 7 and 9, and a 15-year-old
niece. She had medical insurance. She graduated from high school and attended
some college classes. She was certified as a CNA. She had worked as a CNA in a
nursing home. (Tr. 41-45).
Plaintiff said that her condition had not changed since the ALJ decision in
2011, except that her blood work showed that her liver enzymes were better. She
said she was unable to work because of pain in all her joints.

She gave herself

Enbrel injections for RA and took other medications by mouth. She had good days
and bad days. (Tr. 51-54).
A vocational expert (VE) also testified. The ALJ asked her a hypothetical
question which corresponded to the ultimate RFC findings. The VE testified that
this person could not do plaintiff’s past work, but she could do other jobs at the
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light exertional level. (Tr. 61-62).
3.

Medical Records

In April 2015, Vittal V. Chapa, M.D., performed a consultative examination of
plaintiff. She walked with a normal gait and had no muscle weakness or atrophy.
There was no tenderness, heat, swelling, or thickening of any of her joints. She
had a full range of motion in all her joints. Hand grip was normal on both sides.
Plaintiff denied any “specific symptoms” from her autoimmune hepatitis and
reported improvement in her RA symptoms since starting Enbrel a year earlier.
(Tr. 301-303).
Dr. Kevin Korenblat treated plaintiff for autoimmune hepatitis.

In

November 2014, he noted that, except for her complaints of “colicky abdominal
pain” in the morning, she had “remained stable and denie[d] any signs or symptoms
of liver disease.” He also noted that she was “stable” on her immunosuppressive
medications. (Tr. 314). In August 2015, Dr. Korenblat described plaintiff’s lab
results as “completely normal.” (Tr. 421). Three months later, her lab results
related to liver function were again normal. (Tr. 419). In December 2015 plaintiff
reported to Dr. Korenblat that she “remained well” other than increased nose
bleeds.

Dr. Korenblat noted that plaintiff “denie[d] any signs or symptoms of

chronic liver disease.” He wrote that she “remain[ed] in stable biochemical
remission” on her medication. (Tr. 428). She had stable lab results in February
2016. (Tr. 426). In September 2016, after reviewing plaintiff’s lab results, Dr.
Korenblat wrote that he was “pleased to report” that her liver function and liver
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enzymes were “normal.” (Tr. 403).
Dr. Richard DiValerio, a rheumatologist, treated plaintiff for RA.

Dr.

DiValerio treated plaintiff with injections and various medications (Tr. 283, 358,
360). She saw him in April 2015, November 2015, and September 2016. At each
visit, she complained of pain in her hands, feet, and knees. At each visit, on
physical examination, there was no tenderness, swelling, or instability in her arms
and she had a full range of motion in her arms. Her gait was normal. She had no
tenderness in her neck and had no arthritic abnormalities. (Tr. 282-284 358-59,
361). At the September 2016 visit, plaintiff told Dr. DiValerio that her energy and
sleep were “O.K.”

(Tr. 358).

He noted that she had no muscle tenderness,

atrophy, or weakness, and she had full range of motion in all muscle groups with no
pain. Her gait was normal (Tr. 359).
4.

State Agency Reviewers’ Opinions

In April 2015, Richard Bilinsky, M.D., assessed plaintiff’s RFC based on a
review of the records. (Tr. 305-312). In his opinion, plaintiff was able to do work
at the medium exertional level. He said she could sit, stand, or walk for six hours
each in a workday and could push and pull without limitation.
postural limitations.

She had no

Dr. Bilinsky noted that, because of the nature of RA,

plaintiff’s symptoms would be expected to wax and wane.
In September 2015, Prasad Kareti, M.D., reviewed Plaintiff’s records on
reconsideration and agreed with Dr. Bilinsky’s opinion. (Tr. 355).

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Analysis
Plaintiff first argues that the ALJ failed to comply with HALLEX I-2-528D in
that she failed to schedule a supplemental hearing.
Plaintiff cites no authority for the proposition that the HALLEX Manual
creates legally enforceable rights.

In fact, the Seventh Circuit has explicitly

declined to decide whether the HALLEX Manual “creates rights that litigants can
enforce in court.” Dean v. Colvin, 585 Fed. Appx. 904, 905 (7th Cir. 2014). It is
worth noting that the Supreme Court has held that the agency’s Claims Manual “has
no legal force” because it not a regulation. Schweiker v. Hansen, 101 S. Ct. 1468,
1471 (1981).

HALLEX is not a regulation either, and, in the absence of any

contrary authority, this Court declines to find that it creates legally enforceable
rights.
In any event, ALJ Erickson notified plaintiff by letter of the new evidence
gathered after the hearing and explained that plaintiff had the right to request a
supplemental hearing.

(Tr. 275-76).

Plaintiff received the ALJ’s letter and

responded to it. Plaintiff’s letter discussed the new medical records, but she did
not request a supplemental hearing. (Tr. 277). She asserts now that she did not
understand that she could request a supplemental hearing, but she offers no
plausible explanation of how that could be. Her first point is denied.
For her second point, plaintiff argues that the RFC determination was not
supported by substantial evidence.
Plaintiff argues that the opinions of the state agency consultants were entitled
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to no weight because the doctors are not specialists in treating RA or autoimmune
hepatitis, the opinions did not account for the waxing and waning nature of RA, and
the opinions are inconsistent with plaintiff’s complaints of continued pain in her
hands and feet.
Plaintiff concedes that she experienced medical improvement since the
comparison point decision on August 11, 2011. See, Doc. 21, p. 9. She argues
that her improvement was not related to her ability to work. Specifically, she
contends that she continues to suffer from pain in her hands, which limits her
ability to manipulate large and small objects to occasionally rather than frequently.
It is true that the state agency consultants were not specialists in treating
plaintiff’s conditions. However, the specialty of the doctor is only one factor to
consider in weighing medical opinions. “State agency medical and psychological
consultants are highly qualified physicians and psychologists who are experts in the
evaluation of the medical issues in disability claims under the Act.” SSR 96-6p,
1996 WL 374180, at *2. The ALJ is required by 20 CFR §§ 404.1527(f) and
416.927(f) to consider the state agency physicians’ findings of fact about the nature
and severity of the claimant’s impairment as opinions of non-examining physicians;
while the ALJ is not bound by the opinion, he may not ignore it either, but must
consider it and explain the weight given to the opinion in his decision. Id.
Plaintiff asserts that the state agency consultants did not take into account
the waxing and waning nature of her symptoms, but she is incorrect. Dr. Bilinsky
explicitly acknowledged that, because of the nature of RA, plaintiff’s symptoms
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would be expected to wax and wane.
Plaintiff points to no medical evidence that was overlooked or ignored by the
ALJ. She relies exclusively on her own subjective complaints for her assertion that
pain limits her to only occasional use of her hands. That is not enough. The ALJ
was not required to credit her subjective allegations. “Applicants for disability
benefits have an incentive to exaggerate their symptoms, and an administrative law
judge is free to discount the applicant’s testimony on the basis of the other evidence
in the case.” Johnson v. Barnhart, 449 F.3d 804, 805 (7th Cir. 2006). Further,
plaintiff has not challenged the ALJ’s credibility determination here.
Plaintiff has not identified any error requiring remand. Even if reasonable
minds could differ as to whether plaintiff was disabled at the relevant time, the
ALJ’s decision must be affirmed if it is supported by substantial evidence, and the
Court cannot make its own credibility determination or substitute its judgment for
that of the ALJ in reviewing for substantial evidence. Shideler v. Astrue, 688 F.3d
306, 310 (7th Cir. 2012); Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008). ALJ
Erickson’s decision is supported by substantial evidence, and so must be affirmed.
Conclusion
After careful review of the record as a whole, the Court is convinced that ALJ
Erickson committed no errors of law, and that her findings are supported by
substantial evidence. Accordingly, the final decision of the Commissioner of Social
Security finding plaintiff no longer disabled and terminating her Disability
Insurance Benefits is AFFIRMED.
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The Clerk of Court is directed to enter judgment in favor of defendant.
IT IS SO ORDERED.
DATE:

December 28, 2018.

s/ Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE

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