Cantu v. Commissioner of SSA

Filing 26

OPINION AND ORDER: DENIES 17 Social Security Opening Brief of Plantiff and AFFIRMS the Commissioner of Social Security's final decision. Signed by Magistrate Judge John E Martin on 9/11/2015. (lhc)(cc: All counsel of record)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
MARINA MEJIA CANTU,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
Defendant.

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CAUSE NO.: 2:14-CV-286-JEM

OPINION AND ORDER
This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Marina Mejia Cantu
on August 15, 2014, and an Opening Brief of Plaintiff in Social Security Appeal Pursuant to L.R.
7.3 [DE 17], filed by Plaintiff on February 13, 2015. Plaintiff requests that the decision of the
Administrative Law Judge be reversed and remanded for further proceedings. On May 18, 2015,
the Commissioner filed a response, and on June 29, 2015, Plaintiff filed a reply. For the following
reasons, the Court denies Plaintiff’s request for remand.
PROCEDURAL BACKGROUND
On July 25, 2011, Plaintiff filed an application for disability insurance benefits and
Supplemental Security Income benefits with the U.S. Social Security Administration alleging that
she became disabled on December 30, 2008. Plaintiff’s application was denied initially and upon
reconsideration. On May 13, 2013, Administrative Law Judge (“ALJ”) John P. Giannikas held a
hearing at which Plaintiff, with counsel, a psychological expert, a medical expert, and a vocational
expert (“VE”) testified. On May 13, 2013, the ALJ issued a decision finding that Plaintiff was not
disabled, concluding:

1.

The claimant meets the insured status requirements of the Social Security Act
through December 31, 2014.

2.

The claimant has not engaged in substantial gainful activity since December
30, 2008, the alleged onset date.

3.

The claimant has the following severe impairments: a hearing impairment,
spinal stenosis of the lumbar spine, cervical spondylosis from C5 to C7,
diabetes mellitus, left elbow trauma with nerve damage, and obesity.

4.

The claimant does not have an impairment or combination of impairments
that meets or medically equals any of the listed impairments in 20 CFR 404,
Subpart P, Appendix 1.

5.

The claimant has the residual functional capacity to perform sedentary work
except she cannot engage in overhead reaching bilaterally, but can perform
all other reaching on a frequent basis. She can handle, finger, push, and pull
on a frequent basis bilaterally. She can never climb ladders, ropes, or
scaffolds, but can occasionally climb ramps and stairs, balance, stoop, kneel,
crouch, and crawl. She can only be exposed to office-level types of sound
volumes, cannot be exposed to moving mechanical parts, and can only
occasionally be exposed to extreme temperatures and vibrations.

6.

The claimant is capable of performing past relevant work as a telephone
solicitor. This work does not require the performance of work-related
activities precluded by the claimant’s residual functional capacity.

7.

The claimant has not been under a disability, as defined in the Social Security
Act, since December 30, 2008, through the date of the ALJ’s opinion.

The parties filed forms of consent to have this case assigned to a United States Magistrate
Judge to conduct all further proceedings and to order the entry of a final judgment in this case.
Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c) and 42
U.S.C. § 405(g).

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FACTS
Plaintiff was 49 years old on her alleged disability onset date and turned 50 shortly
thereafter. She has at least a high school education and worked as an assessor/appraiser, telephone
solicitor, telephone operator, greeter guide, and assembler. Plaintiff suffers from a hearing
impairment, spinal stenosis of the lumbar spine, and nerve damage in her left elbow. She also has
diabetes mellitus and is obese.
At the hearing, a VE testified that someone with Plaintiff’s physical limitations could
perform her past work as a telephone solicitor and that she also could perform work as a receptionist
or information clerk.
STANDARD OF REVIEW
The Social Security Act authorizes judicial review of the final decision of the agency and
indicates that the Commissioner’s factual findings must be accepted as conclusive if supported by
substantial evidence. 42 U.S.C. § 405(g). Thus, a court reviewing the findings of an ALJ will
reverse only if the findings are not supported by substantial evidence or if the ALJ has applied an
erroneous legal standard. See Briscoe v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005). Substantial
evidence consists of “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005) (quoting Gudgel v.
Barnhart, 345 F.3d 467, 470 (7th Cir. 2003)).
A court reviews the entire administrative record but does not reconsider facts, re-weigh the
evidence, resolve conflicts in evidence, decide questions of credibility, or substitute its judgment
for that of the ALJ. See Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir. 2005); Clifford v. Apfel, 227
F.3d 863, 869 (7th Cir. 2000); Butera v. Apfel, 173 F.3d 1049, 1055 (7th Cir. 1999). Thus, the

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question upon judicial review of an ALJ’s finding that a claimant is not disabled within the meaning
of the Social Security Act is not whether the claimant is, in fact, disabled, but whether the ALJ
“uses the correct legal standards and the decision is supported by substantial evidence.” Roddy v.
Astrue, 705 F.3d 631, 636 (7th Cir. 2013) (citing O’Connor-Spinner v. Astrue, 627 F.3d 614, 618
(7th Cir. 2010); Prochaska v. Barnhart, 454 F.3d 731, 734-35 (7th Cir. 2006); Barnett v. Barnhart,
381 F.3d 664, 668 (7th Cir. 2004)). “A reversal and remand may be required, however, if the ALJ
committed an error of law or if the ALJ based the decision on serious factual mistakes or omissions.”
Beardsley v. Colvin, 758 F.3d 834, 837 (7th Cir. 2014) (citations omitted).
DISABILITY STANDARD
To be eligible for disability benefits, a claimant must establish that she suffers from a
“disability” as defined by the Social Security Act and regulations. The Act defines “disability” as
an inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result in death or that 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),
1382c(a)(3)(A). To be found disabled, the claimant’s impairment must not only prevent her from
doing her previous work, but considering her age, education, and work experience, it must also
prevent her from engaging in any other type of substantial gainful activity that exists in significant
numbers in the economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B); 20 C.F.R. §§ 404.1520(e)-(f),
416.920(e)-(f).
When a claimant alleges a disability, Social Security regulations provide a five-step inquiry
to evaluate whether the claimant is entitled to benefits. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
The steps are: (1) Is the claimant engaged in substantial gainful activity? If yes, the claimant is not

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disabled, and the claim is denied; if no, the inquiry proceeds to step two; (2) Does the claimant have
an impairment or combination of impairments that are severe? If not, the claimant is not disabled,
and the claim is denied; if yes, the inquiry proceeds to step three; (3) Do(es) the impairment(s) meet
or equal a listed impairment in the appendix to the regulations? If yes, the claimant is automatically
considered disabled; if not, then the inquiry proceeds to step four; (4) Can the claimant do the
claimant’s past relevant work? If yes, the claimant is not disabled, and the claim is denied; if no,
then the inquiry proceeds to step five; (5) Can the claimant perform other work given the claimant’s
residual functional capacity (“RFC”), age, education, and experience? If yes, then the claimant is
not disabled, and the claim is denied; if no, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(i)(v), 416.920(a)(4)(i)-(v); see also Scheck v. Barnhart, 357 F.3d 697, 699-700 (7th Cir. 2004). The
claimant bears the burden of proving steps one through four, whereas the burden at step five is on
the ALJ. Zurawski v. Halter, 245 F.3d 881, 886 (7th Cir. 2001); see also Knight v. Chater, 55 F.3d
309, 313 (7th Cir. 1995).
ANALYSIS
The ALJ found that Plaintiff was able to perform her past relevant work and other jobs in the
national economy, so she was not disabled. Plaintiff argues that none of her work was substantial
gainful employment and therefore did not qualify as past relevant work. The Commissioner argues
that, even if Plaintiff’s prior work was not substantial gainful activity, that characterization of it was
“harmless error” because the job was unskilled and Plaintiff performed it long enough to learn it.
Past work is relevant work experience for the purposes of the step four analysis “when it was
done within the last 15 years, lasted long enough for [the claimant] to learn to do it, and was
substantial gainful activity.” 20 CFR §§ 404.1565(a); 416.965(a); see also SSR 82-62, 1982 WL

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31386 at *1-2 (Jan. 1, 1982).
In this case, the ALJ concluded that Plaintiff could perform her past work as an order
clerk/telephone solicitor. He concluded that she worked that job at Leisure Time for approximately
six months based on her testimony that she worked the job in the spring and summer of 2004, such
that her monthly income made it substantial gainful activity. Plaintiff argues that the ALJ reviewed
only the evidence favorable to his opinion in determining that Plaintiff’s work at Leisure Time was
substantial gainful activity. She argues that her testimony was conflicting and that if she had worked
there for a year, as some of her testimony indicated, her earnings would not have qualified as
substantial.
It is Plaintiff’s burden to prove that she cannot perform her past relevant work at step four.
See, e.g., Zurawski, 245 F.3d at 886. The Commissioner points out that Plaintiff, although
represented by her attorney throughout, has not presented any evidence that Plaintiff worked at
Leisure Time for more than six months such that it was not relevant work. Glenn v. Sec’y of Health
& Human Servs., 814 F.2d 387, 391 (7th Cir.1987) (“When an applicant for social security benefits
is represented by counsel the administrative law judge is entitled to assume that the applicant is
making his strongest case for benefits.”); see also Halsell v. Astrue, 357 F. App’x 717, 723 (7th Cir.
2009) (“[T]he ALJ was permitted to assume that [the plaintiff], who has always been represented
by counsel, was ‘making the strongest case for benefits.’”) (quoting Glenn, 814 F.2d at 391).
Furthermore, even if the Plaintiff’s work was not relevant work, the ALJ also made an
alternative finding at step five that Plaintiff was also able to perform other jobs in the national
economy. Plaintiff argues that this conclusion was in error. She argues that the ALJ used Section
204.00 in the Medical-Vocational Guidelines as a framework for determining whether there were

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other jobs in significant numbers that Plaintiff could perform, but that under those guidelines he
should have concluded that Plaintiff was disabled.
Plaintiff is in the “closely approaching advanced age” category, with only a high school
education, and the ALJ found that she is limited to less than a full range of sedentary work. Plaintiff
asserts that because she has no transferrable skills, she should be considered disabled under the
guidelines. See 20 C.F.R. § 404, Subpt. P, App. 2 (“Individuals approaching advanced age (age 5054) may be significantly limited in vocational adaptability if they are restricted to sedentary work.
When such individuals have no past work experience or can no longer perform vocationally relevant
past work and have no transferable skills, a finding of disabled ordinarily obtains.”); Thomas v.
Colvin, 534 F. App’x 546, 550 (7th Cir. 2013) (“[T]he grids mandate a finding of disability at [the
plaintiff]’s 50th birthday if she is limited to sedentary work.”). However, the ALJ found that
Plaintiff does have transferable skills, and Plaintiff does not argue otherwise. Instead, Plaintiff
appears to be arguing that because she is limited to less than the full range of sedentary jobs and is
in the “approaching advanced age” category, the ALJ should have concluded that Plaintiff is
disabled despite the fact that she has transferable work skills.
In this case, Plaintiff’s abilities do not correspond exactly with the grid, so the ALJ cannot
rely only on the guideline rule. 20 C.F.R. § Pt. 404, Subpt. P, App. 2 (“Where any one of the
findings of fact does not coincide with the corresponding criterion of a rule, the rule does not apply
in that particular case and, accordingly, does not direct a conclusion of disabled or not disabled.”);
Fast v. Barnhart, 397 F.3d 468, 471 (7th Cir. 2005) (“If a nonexertional limitation substantially
limits a claimant’s ability to perform other work, reliance on the grids is improper.”) (citing
Zurawski, 245 F.3d at 889; Lee v. Sullivan, 988 F.2d 789, 793 (7th Cir.1993)). Accordingly, it was

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appropriate for the ALJ to consider what other work Plaintiff could perform, “because he made
specific reference to Grid Rule 204.00; and he recognized the Grid was not controlling and sought
another vocational source in the form of VE testimony.” Fast, 397 F.3d at 471 (quotation marks
omitted). He properly proposed a hypothetical to the VE that encompassed Plaintiff’s particular
RFC and work background and the VE identified other jobs that Plaintiff could perform. See, e.g.,
Varga v. Colvin, 794 F.3d 809, 813 (7th Cir. 2015) (“the hypothetical posed to the VE . . . must
incorporate all of the claimant’s limitations supported by the medical record”); Kasarsky v.
Barnhart, 335 F.3d 539, 543 (7th Cir. 2003) (“Furthermore, to the extent the ALJ relies on testimony
from a vocational expert, the question posed to the expert must incorporate all relevant limitations
from which the claimant suffers.”). Plaintiff has not identified any errors in the ALJ’s opinion that
require remand.
CONCLUSION
Based on the foregoing, the Court hereby DENIES the relief requested in Opening Brief of
Plaintiff in Social Security Appeal Pursuant to L.R. 7.3 [DE 17] and AFFIRMS the Commissioner
of Social Security’s final decision.
SO ORDERED this 11th day of September, 2015.
s/ John E. Martin
MAGISTRATE JUDGE JOHN E. MARTIN
UNITED STATES DISTRICT COURT
cc: All counsel of record

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