Ray v. Saul
Filing
30
MEMORANDUM AND OPINION The Commissioner's final decision denying Plaintiff's application for social security disability benefits is REVERSED and REMANDED to the Commissioner for rehearing and reconsideration of the evidence, pursuant to sentence four of 42 U.S.C. §405(g). The Clerk of Court is DIRECTED to close this case and enter judgment in favor of Plaintiff. Signed by Judge Stephen P. McGlynn on 9/3/2021. (anb2)
Case 3:20-cv-00564-SPM Document 30 Filed 09/03/21 Page 1 of 9 Page ID #745
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TAMMY M. R., 1
Plaintiff,
v.
Case No. 20-CV-00564-SPM
COMMISSIONER of SOCIAL
SECURITY,
Defendant.
MEMORANDUM AND ORDER
McGLYNN, District Judge:
In accordance with 42 U.S.C. § 405(g), Plaintiff, represented by counsel, seeks
judicial review of the final agency decision denying her application for Disability
Insurance Benefits (DIB) benefits pursuant to 42 U.S.C. § 423. 2
PROCEDURAL HISTORY
Plaintiff applied for benefits in November 2017, alleging disability beginning
on November 25, 2015. Plaintiff subsequently amended the disability onset date in
her application to November 6, 2015. After holding an evidentiary hearing, the ALJ
denied the application on August 28, 2019. (Tr. 13-24). The Appeals Council denied
review, and the decision of the ALJ became the final agency decision. (Tr. 1).
Plaintiff’s full name will not be used in this Memorandum and Order due to privacy concerns. See
Fed. R. Civ. P. 5.2(c) and the Advisory Committee Notes thereto.
1
The statutes and regulations pertaining to 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. As is relevant to this case, the DIB and SSI statutes and regulations 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
Page 1 of 9
Case 3:20-cv-00564-SPM Document 30 Filed 09/03/21 Page 2 of 9 Page ID #746
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 fully and fairly develop the record in that he did not
clear up alleged inconsistencies in Plaintiff’s testimony and the forms at
Section E regarding her lifting limitations.
2.
The ALJ did not adhere to SSR 16-3p when he failed properly assess
Plaintiff’s subjective allegations and take into account her husband’s
Third-Party Statement.
3.
The ALJ’s residual functional capacity (“RFC”) determination was
unsupported by substantial evidence because Plaintiff’s pain was not
accounted for.
APPLICABLE LEGAL STANDARDS
Under the Social Security Act, a person is disabled if she has an “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 twelve
months.” 42 U.S.C. § 423(d)(1)(a). To determine whether a plaintiff is disabled, the
ALJ considers the following five questions in order: (1) Is the plaintiff presently
unemployed? (2) Does the plaintiff have a severe impairment? (3) Does the
impairment meet or medically equal one of a list of specific impairments enumerated
in the regulations? (4) Is the plaintiff unable to perform her former occupation? and
Page 2 of 9
Case 3:20-cv-00564-SPM Document 30 Filed 09/03/21 Page 3 of 9 Page ID #747
(5) Is the plaintiff unable to perform any other work? 20 C.F.R. § 416.920(a)(4).
An affirmative answer at either step 3 or step 5 leads to a finding that the
plaintiff is disabled. Zurawski v. Halter, 245 F.3d 881, 886 (7th Cir. 2001). A negative
answer at any step, other than at step 3, precludes a finding of disability. Ibid. The
plaintiff bears the burden of proof at steps 1–4. Ibid. Once the plaintiff shows an
inability to perform past work, the burden then shifts to the Commissioner to show
the plaintiff’s ability to engage in other work existing in significant numbers in the
national economy. Ibid.
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
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.”
Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (internal citations omitted).
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.
Burmester v. Berryhill, 920 F.3d 507, 510 (7th Cir. 2019). However, while judicial
Page 3 of 9
Case 3:20-cv-00564-SPM Document 30 Filed 09/03/21 Page 4 of 9 Page ID #748
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
The ALJ followed the five-step analytical framework described above. He found
that Plaintiff worked after the alleged disability onset date, but determined that
Plaintiff had not worked at the level of substantial gainful activity. The ALJ found
that Plaintiff had severe impairments of hypertension; breast cancer, status-post
bilateral mastectomy and reconstruction surgery; and status-post hysterectomy and
bilateral oophorectomy.
The ALJ found that Plaintiff had the RFC to perform the full range of work at
the medium exertional level. Based on the testimony of a vocational expert, the ALJ
found that Plaintiff was not disabled because she was able to do her past relevant
work as a cook as that job is generally performed in the national economy.
THE EVIDENTIARY RECORD
The Court has reviewed and considered the entire evidentiary record in
formulating this Memorandum and Order. The Court finds that the ALJ’s summary
of the record in his decision, when compared with the points raised by Plaintiff, is
sufficiently comprehensive and, therefore, there is no need to summarize it again
here.
ANALYSIS
I.
Developing the Record
Plaintiff argues that the ALJ failed to develop the record fully and fairly.
Page 4 of 9
Case 3:20-cv-00564-SPM Document 30 Filed 09/03/21 Page 5 of 9 Page ID #749
Specifically, Plaintiff claims that the ALJ made an adverse finding against Plaintiff
for inconsistencies in her Section E forms related to describing her job duties as a
cook prior to disability, as contrasted with her testimony at the hearing, when he
could have resolved the inconsistency by asking her about it. Instead, the ALJ did not
ask and made an adverse finding against her on the issue of credibility. Plaintiff then
obfuscates her point by scurrying from her main argument, complaining that the
ALJ’s decision failed to consider additional remarks by her on the Section E forms
that placed her inconsistencies in proper context. 3
At the hearing, the ALJ asked Plaintiff’s previous attorney if she reviewed the
exhibits in the file, and Plaintiff’s attorney affirmed. (Tr. 33). The ALJ asked the
attorney if she had any objection to the ALJ admitting that evidence; she raised no
objection. (Tr. 33). Plaintiff’s counsel did not alert the ALJ to any other evidence that
existed that would assist in the disability determination. Following the ALJ’s
decision, Plaintiff’s counsel filed a brief in support of the request that the Appeals
Council review the ALJ’s decision. (Tr. 285-87). Plaintiff’s counsel did not alert the
Appeals Council to the existence of other evidence that was not made part of the
record before the ALJ. (Id.).
The claimant and ALJ share responsibilities for building the record. However,
it is the claimant’s burden to submit medical evidence to prove her disability. See
Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (quoting 42 U.S.C. 423(d)(5)(A)) (“[a]n
The Court has been aware of this disorganized approach to writing for some time in the Social
Security realm. To be crystal clear, it will not consider jumbled, secondary arguments that an
experienced Social Security litigator could not organize properly. See United States v. Dunkel, 927 F.2d
955, 956 (7th Cir. 1991) (Judges are not truffle pigs, hunting for additional arguments buried in
briefs.).
3
Page 5 of 9
Case 3:20-cv-00564-SPM Document 30 Filed 09/03/21 Page 6 of 9 Page ID #750
individual shall not be considered to be under a disability unless he furnishes such
medical and other evidence of the existence thereof as the Secretary may require.”);
Scheck v. Barnhart, 357 F.3d 697, 701–02 (7th Cir. 2004), (“claimant bears the burden
of supplying adequate records and evidence to prove their claim of disability.”). See
also 20 C.F.R. §§ 404.1512(a), 416.912(a) (“In general, [claimants] have to prove to
[the Social Security Administration] that [they] are ... disabled. This means that
[claimants] must furnish medical and other evidence that [the Social Security
Administration] can use to reach conclusions about your medical impairment(s).”); 20
C.F.R. § 404.1512(c) (claimant “must provide medical evidence showing that
[claimant has] an impairment(s) and how severe it is during the time” [claimant
states] that [claimant is] disabled. [Claimant] must provide evidence, without
redaction, showing how [claimant's] impairment(s) affects [claimant's] functioning
during the time [claimant states] that [claimant is] disabled ...”). More specifically,
the claimant has the burden to submit evidence proving her RFC at Step Four.
Schmidt v. Astrue, 496 F.3d 833, 841 (7th Cir. 2007); Luster v. Astrue, 358 F. App’x
738, 741 (7th Cir. 2010); Allen v. Sullivan, 977 F.2d 385, 387–88 (7th Cir. 1992). On
the other hand, the ALJ has the duty to develop the medical record. See 20 C.F.R. §
404.1512(d) (“Before we make a determination that you are not disabled, we will
develop your complete medical history”).
As an initial matter, the Court notes that Plaintiff was represented by counsel
at the hearing and her counsel could have helped confront these issues through her
own questioning of Plaintiff. See Primm v. Saul, 789 F. App’x 539, 544 (7th Cir. 2019)
(citing Eichstadt v. Astrue, 534 F.3d 663, 668 (7th Cir. 2008)) (the claimant was
Page 6 of 9
Case 3:20-cv-00564-SPM Document 30 Filed 09/03/21 Page 7 of 9 Page ID #751
“represented by counsel at the hearing” and, as such, was “presumed to have made
her best case before the ALJ”). Additionally, Plaintiff has not shown that the ALJ was
obligated to make these inquiries. See McHenry v. Berryhill, 911 F.3d 866, 873 (7th
Cir. 2018) (rejected plaintiff’s argument that the ALJ erred by invoking her physical
activities to discredit her symptom allegations without first asking about the extent
of activity with questions at the hearing). The ALJ fulfilled his duty to develop a
complete medical record. Plaintiff’s argument fails.
II.
Subjective Allegations and Third-Party Statements
Plaintiff argues that the ALJ’s RFC determination that incorporated his
evaluation of her subjective symptom allegations was wrong, improperly applied
activities of daily living against her, and did not account for her husband’s third-party
statement.
The regulations provide factors for an ALJ to consider in determining the
extent to which a claimant’s statements about the intensity and persistence of her
symptoms limit her capacity for work. 20 C.F.R. § 404.1529(c). Those factors include
objective medical evidence, information from a claimant’s medical sources about her
symptoms, a claimant’s course of treatment, and inconsistencies between a claimant’s
statements and other evidence. 20 C.F.R. § 404.1529(c)(2)-(4). The ALJ must carefully
consider the entire case record and evaluate the “intensity and persistence of an
individual's symptoms to determine the extent to which the symptoms affect the
individual’s ability to do basic work activities.” SSR 16-3p, 2016 WL 1119029 at *2.
Though the ALJ need not discuss every piece of evidence in the record, the ALJ may
not ignore an entire line of evidence that is contrary to his findings. Golembiewski v.
Page 7 of 9
Case 3:20-cv-00564-SPM Document 30 Filed 09/03/21 Page 8 of 9 Page ID #752
Barnhart, 322 F.3d 912, 917 (7th Cir. 2003) (citing Dixon v. Massanari, 270 F.3d
1171, 1176 (7th Cir. 2001) and Zurawski, 245 F.3d at 888).
While the Court is satisfied that the ALJ’s analysis supporting his RFC
determination was not unreasonable, the Defendant inexplicably failed to address
Plaintiff’s argument that her husband’s third-party statement should have been
considered. The Court notes that the ALJ incorporated Plaintiff’s husband’s thirdparty statement into his analysis, and, even if the ALJ had not, it is likely part of a
line of evidence that the ALJ addressed thoroughly. Nevertheless, Defendant
forfeited this argument by failing to brief it.
III.
RFC Determination in Relation to Plaintiff’s Pain
Plaintiff quibbles with the ALJ’s alternative finding that, using the Medical-
Vocational Rules, there are also other jobs in the national economy that she can
perform. Because addressing this argument would be premature, the Court elects not
to do so.
CONCLUSION
The Commissioner’s final decision denying Plaintiff’s application for social
security disability benefits is REVERSED and REMANDED to the Commissioner
for rehearing and reconsideration of the evidence, pursuant to sentence four of 42
U.S.C. §405(g). The Clerk of Court is DIRECTED to close this case and enter
judgment in favor of Plaintiff.
This Memorandum and Order should not be construed as an indication that
the Court believes that Plaintiff was disabled during the relevant period, or that she
should be awarded benefits. On the contrary, the Court has not formed any opinions
Page 8 of 9
Case 3:20-cv-00564-SPM Document 30 Filed 09/03/21 Page 9 of 9 Page ID #753
in that regard and leaves those issues to be determined by the Commissioner after
further proceedings.
IT IS SO ORDERED.
DATED: September 3, 2021
s/ Stephen P. McGlynn
STEPHEN P. McGLYNN
U.S. District Judge
Page 9 of 9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?