Roenigk v. Commissioner of Social Security
Filing
16
OPINION AND ORDER: The Commissioner of Social Security's final decision is AFFIRMED. Signed by Judge Rudy Lozano on 8/10/2015. (lhc)(cc: Pla)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
SCOTT S. ROENIGK,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
vs.
CAROLYN W. COLVIN,
COMMISSIONER OF THE
SOCIAL SECURITY ADMINISTRATION
Defendant.
NO. 1:14-CV-150
OPINION AND ORDER
This
matter
is
before
the
Court
for
review
of
the
Commissioner of Social Security’s decision denying Disability
Insurance Benefits to Plaintiff, Scott Stephen Roenigk. For the
reasons set forth below, the decision of the Commissioner is
AFFIRMED.
BACKGROUND
On January 9, 2012, the Plaintiff, Scott Stephen Roenigk
(“Roenigk”),
filed
an
application
for
Disability
Insurance
Benefits (“DIB”).
Roenigk alleged that he was disabled due to
bi-polar disorder.
The Social Security Administration denied his
initial application and also denied his claim on reconsideration.
On February 7, 2013, the Plaintiff appeared with counsel, Vernos
J. Williams, at an administrative hearing before Administrative
Law Judge (“ALJ”) William D. Pierson (“Pierson”).
(Tr. 24-68).
At this hearing, Roenigk amended his request for benefits to a
request for a closed period of time beginning on August 1, 2010,
and ending March 5, 2012.
Testimony was provided by Roenigk and
Sharon Ringenberg (a vocational expert or “VE”).
(Tr. 24-68).
On May 13, 2013, ALJ Pierson denied the claimant’s DIB claim,
finding that Roenigk was not disabled during the relevant time
period because he could perform a significant number of jobs in
the national economy, despite his limitations.
(Tr. 9-19).
On May 13, 2013, Roenigk requested that the Appeals Council
review the ALJ’s decision and the request was denied on April 23,
2014.
(Tr. 1).
Accordingly, the ALJ’s decision became the
Commissioner’s final decision.
See 20 C.F.R. § 422.210(a)(2005).
The claimant has initiated the instant action for judicial review
of the Commissioner’s final decision pursuant to 42 U.S.C. §
405(g).
DISCUSSION
Review of Commissioner’s Decision
This
Court
has
authority
to
review
decision to deny social security benefits.
the
Commissioner’s
42 U.S.C. § 405(g).
“The findings of the Commissioner of Social Security as to any
fact,
if
supported
conclusive....”
Id.
by
substantial
evidence,
shall
be
Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.”
401
(1971)(quotation
Richardson v. Perales, 402 U.S. 389,
omitted).
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In
determining
whether
substantial evidence exists, the Court shall examine the record
in its entirety, but shall not substitute its own opinion for the
ALJ’s by reconsidering the facts or reweighing the evidence.
Jens v. Barnhart, 347 F.3d 209, 212 (7th Cir. 2003).
With that
in mind, however, this Court reviews the ALJ’s findings of law de
novo and if the ALJ makes an error of law, the Court “may reverse
without
regard
to
factual findings.”
the
volume
of
evidence
in
support
of
the
White v. Apfel, 167 F.3d 369, 373 (7th Cir.
1999).
As a threshold matter, for a claimant to be eligible for
benefits
under
the
Social
Security
Act,
the
claimant
must
establish that he is disabled. To qualify as being disabled, the
claimant must be unable “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
423(d)(1)(A) and 1382(a)(1).
twelve
months.”
42
U.S.C.
§§
To determine whether a claimant has
satisfied this statutory definition, the ALJ performs a five-step
evaluation:
Step 1:
Is
the
claimant performing
substantial gainful activity: If yes, the
claim is disallowed; if no, the inquiry
proceeds to step 2.
Step 2:
Is the claimant’s
combination of impairments
-3-
impairment or
“severe” and
expected to last at least twelve months? If
not, the claim is disallowed; if yes, the
inquiry proceeds to step 3.
Step 3:
Does the claimant have an
impairment or combination of impairments that
meets or equals the severity of an impairment
in the SSA’s Listing of Impairments, as
described in 20 C.F.R. § 404 Subpt. P, App.
1? If yes, then claimant is automatically
disabled; if not, then the inquiry proceeds
to step 4.
Step 4:
Is
the
claimant
able to
perform his past relevant work? If yes, the
claim is denied; if no, the inquiry proceeds
to step 5, where the burden of proof shifts
to the Commissioner.
Step 5:
Is
the
claimant
able to
perform any other work within his residual
functional capacity in the national economy:
If yes, the claim is denied; if no, the
claimant is disabled.
20 C.F.R. §§ 404.1520(a)(4)(i)-(v) and 416.920(a)(4)(i)-(v); see
also Herron v. Shalala, 19 F.3d 329, 333 n. 8 (7th Cir. 1994).
In this case, the ALJ found that Roenigk suffered from the
following severe impairments: bipolar disorder and obesity.
11).
(Tr.
The ALJ found that Roenigk did not have an impairment or
combination of impairments that met or medically equaled the
severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart
P,
404.1526).
Appendix
Id.
1
(20
C.F.R.
404.1520(d),
404.1525
and
The ALJ also found that Roenigk had the residual
functional capacity (“RFC”) to perform:
medium
work
as
defined
in
20
C.F.R.
404.1567(c) except he can lift 25 pounds
frequently and 50 pounds occasionally; can
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sit 6 hours out of an 8-hour workday; can
stand/walk 6 hours out of an 8-hour workday;
is limited to superficial interaction with
co-workers, supervisors, and the public, when
superficial is defined as occasional casual
contact not involving prolonged conversation,
although contact with supervisors would still
involve
necessary
instructions;
and
is
limited to simple, routine and repetitive
tasks in low stress jobs with no more than
occasional decision-making and occasional
changes in the work setting.
(Tr. at 14).
After
considering
Roenigk’s
age1,
education2,
work
experience3 and RFC, the ALJ relied upon the testimony of the VE
and concluded that Roenigk was not disabled and not entitled to
DIB because he was capable of making a successful adjustment to
other work that existed in significant numbers in the national
economy.
(Tr. 18). Thus, Roenigk’s claim failed at step five of
the evaluation process.
Roenigk
asserts
requiring reversal.
that
the
ALJ
committed
several
errors
While Roenigk is not represented by counsel
at this time, he nonetheless bears the burden of showing that the
ALJ committed reversible error.
Cadenhead v. Astrue, 410 F.App’x
982, 994 (7th Cir. 2011)(pro se litigants “must present arguments
supported by legal authority and citations to the record.”).
1
Roenigk was born on November 27, 1960. (Tr. 17).
Roenigk has at least a high school education and is able to
communicate in English. (Tr. 17).
3
In the past fifteen years, Roenigk has worked as a pension
analyst. (Tr. 17).
2
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This Court will give Roenigk a certain degree of latitude given
his pro se status, but he must nonetheless satisfy his burden of
proof.
With this guidelines in mine, each of Roenigk’s arguments
will be addressed in turn.
First, Roenigk complains about the length of time the SSA
took to decide his claim: it took the Appeals Council almost a
year to decide not to review the case.
The timing of the
decision
basis
not
to
grant
review
provides
no
for
appeal.
Furthermore, any error in denying his request for review is not
reviewable by this Court.
See Eads v. Sec’y of HHS, 983 F.2d
815, 817 (7th Cir. 1993)(noting that, where the Appeals Council
has refused to review a case, the decision reviewed by this Court
is the decision of the ALJ).
Roenigk also points out that he is seeking benefits for a
closed period beginning on August 10, 2010, and ending on March
5, 2012.
Unfortunately, his hearing before the ALJ did not take
place until 11 months after the end of the closed period.
He
does not claim that he was disabled within the meaning of the SSA
at the time of his hearing - only that he was disabled during the
prior closed period.
As a result of the timing of the hearing,
Roenigk believes the ALJ unfairly judged whether he was disabled
from
August
10,
2010,
until
March
5,
appearance at the hearing 11 months later.
the
hearing
in
this
case
was
-6-
2012,
based
on
his
While the timing of
unfortunate,
Roenigk
has
not
provided any citation to the record which demonstrates that the
ALJ failed to properly consider the prior period of time.
Additionally,
Roenigk
notes
that
the
work
he
obtained
following his alleged period of disability paid substantially
less than his past relevant work: 46% according to Roenigk’s
calculations.
This is irrelevant.
The relevant inquiry is not
whether he can perform work that would yield income comparable to
his prior income level.
The relevant inquiry is whether he can
perform any other work within his residual functional capacity in
the national economy.
Similarly, Roenigk argues in his reply brief that the SSA
does not deny that he is “disabled” and that he had paid into the
system,
and
states
that,
“I
qualify
to
receive
benefits based on my lifetime contributions.”
That is not how this works.
serious
impairment
(as
disability
(DE #15 at 2).
First, having an impairment, even a
Roenigk
clearly
does
acknowledges), does not entitle one to benefits.
and
the
ALJ
Paying into the
system (or in Social Security lingo, earning sufficient sums of
money to have enough qualifying quarters during the preceding 10
year
period)
is
only
one
requirement
to
obtaining
Here, that qualification was undoubtedly met.
benefits.
No one is arguing
that Roenigk did not have enough qualifying quarters to receive
benefits.
Because this was not the basis on which his claim for
benefits was denied, the fact that he has “paid in” adequately is
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not relevant to this appeal.
Next, Roenigk quibbles with the fact that the ALJ stated in
his
decision
disabled.”
that
he
was
(Tr. at 19).
“not
disabled,
and
has
not
been
Roenigk asserts that he has in fact
been deemed disabled by the SSA in the past: he received benefits
in the mid-1980s.
While this may be error, it is not the sort of
error that requires reversal.
the
Social
Security
This error is likely the result of
Administration’s
insistence
boilerplate language in their decisions.
on
utilizing
It is not entirely
clear whether the ALJ actually failed to appreciate that Roenigk
had previously received benefits or simply failed to adequately
edit the boilerplate language of the order.
Even assuming that
he failed to appreciate that Roenigk had once received benefits,
knowing
this
would
not
likely
alter
the
ALJ’s
current
understanding of the medical records and opinions that informed
his decision that Roenigk was not disabled within the meaning of
the Social Security Act during the time in question.
Furthermore, Roenigk argues that the ALJ’s “findings of fact
and conclusions of law in finding #4 are not correct.”
at 2).
(DE #12
In challenging “finding #4,” Roenigk is challenging the
ALJ’s decision at Step 3 of the sequential analysis.
At Step 3,
the ALJ found that Roenigk did not meet or medically equal the
severity of Listing 12.04, Affective Disorders.
In considering
Listing 12.04, the ALJ found that there was medical documentation
-8-
that Roenigk suffered mild restrictions in activities of daily
living, moderate difficulties in social functioning, and moderate
difficulties in concentration, persistence or pace.
He also
found that Roenigk suffered one episode of decompensation of
extended duration.
restrictions
in
his
Roenigk argues that he indeed had marked
activities
of
daily
living,
maintaining
social functioning, and maintaining concentration, persistence,
or
pace,
and
that
he
also
suffered
decompensation of extended during.
repeated
episodes
of
He relies solely on his own
statements about the severity of his symptoms, citing to no
medical evidence whatsoever.
Unfortunately for Roenigk, to be
found disabled at Step 3 of the sequential analysis, there must
be medical documentation to support these assertions.
He has not
pointed to any medical records that would support a finding that
his impairments met or equaled the criteria of Listing 12.04.
Likewise, this Court’s review of the record does not reveal that
any medical source found that Roenigk either met or equaled the
criteria for Listing 12.04.
Roenigk also argues that the ALJ’s RFC is incorrect and that
the ALJ’s findings and conclusions at Step 5 are not supported by
substantial evidence.
getting
and
losing
According to Roenigk, the history of his
jobs
during
the
relevant
time
demonstrates that he could get work but could not keep it.
period
While
Roenigk is working successfully now (or was at the time his brief
-9-
was filed) he maintains that, during the relevant time period, he
could not work.
According to Roenigk, this is the nature of his
illness, and it is quite possible that at some point in the
future he will again be unable to work.
The ALJ stated several reasons for his RFC finding.
The ALJ
acknowledged difficulties with social functioning but noted that
there was not a medical opinion indicating that his limitations
in this area would prevent superficial interactions with coworkers and supervisors for 12 consecutive months.
(Tr. at 14).
The ALJ noted that Roenigk did work part time during the time
period at issue and even worked full time very briefly. (Tr. 14).
The ALJ also noted that the medical evidence did not establish
that difficulties in concentration were more limited than noted
in the RFC. (Tr. at 14).
from
Roenigk’s
In fact, the ALJ noted, treatment notes
therapists
during
the
relevant
time
showed
adequate attention and concentration during much of the period
for which Roenigk seeks benefits.
(Tr 14-15).
The ALJ also
noted that the episode beginning in January of 2011 resulted in a
change of Roenigk’s medication, and he has not suffered any
further episodes since that change.
This
reweigh
Court,
the
in
evidence.
reviewing
If
the
there
(Tr. at 16).
ALJ’s
is
decision,
substantial
does
evidence
not
to
support the ALJ’s decision, even if this Court would have reached
a contrary decision, the decision must be affirmed. See Jens v.
-10-
Barnhart, 347 F.3d 209, 212 (7th Cir. 2003)(“The issue before
this
court
is
substantial
whether
evidence,
disabled....[I]f
Security
the
are
the
ALJ’s
not
whether
findings
supported
findings
by
of
the
were
[the
supported
claimant]
Commissioner
substantial
of
evidence,
by
is
Social
they
are
conclusive.”). Here, the ALJ relied upon substantial evidence to
support his decision.
In this circumstance, the fact that a
different ALJ may have looked at the same evidence and reached a
different conclusion does not warrant reversal.
Lastly, Roenigk raised several arguments in his reply brief
that were not raised in his opening brief.
For example, he
argues that the ALJ misapplied the special technique to evaluate
his mental health condition, that the SSA should have sought an
independent medical evaluation, that the ALJ is not a licensed
psychiatrist and was not qualified to diagnose mental illness,
and
that
the
medical
records
do
not
adequately
reflect
the
severity of his illness due to limited treatment during the
relevant time period.
While this Court understands that Roenigk
is representing himself, that does not absolve him from the need
to follow the rules.
are
waived.
See
Arguments not raised in the opening brief
Young
v.
Colvin,
No.
1:13–cv–01602,
2015
WL
1190095, at *7 n.5 (S.D. Ind. Mar. 13, 2015); Citizens Against
Ruining the Env't v. EPA, 535 F.3d 670, 675 (7th Cir. 2008) (“It
is improper for a party to raise new arguments in a reply because
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it does not give an adversary adequate opportunity to respond.”).
CONCLUSION
For the reasons set forth above, the Commissioner of Social
Security’s final decision is AFFIRMED.
DATED: August 10, 2015
/s/ Rudy Lozano, Judge
United States District Court
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