CARPENTER v. COLVIN

Filing 32

ENTRY on Judicial Review-The Commissioner's decision denying a period of disability and disability insurance is affirmed. Signed by Magistrate Judge Denise K. LaRue on 3/22/2017.(CBU)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MARILYN L. CARPENTER,
Plaintiff,
vs.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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No. 1:16-cv-0833-DKL-WTL

Entry on Judicial Review
Marilyn L. Carpenter seeks judicial review under 42 U.S.C. § 405(g) of the Social
Security Administration’s denial of her application for disability insurance benefits. The
parties have consented to the Magistrate Judge’s jurisdiction. For the reasons that follow,
the Commissioner’s decision will be affirmed.
Carpenter applied for disability insurance benefits, alleging disability beginning
January 1, 2009, due to chronic obstructive pulmonary disease (COPD), congestive heart
failure, knee pain, back pain, and migraines. [R. 58.] The evidence regarding Carpenter’s
medically determinable impairments is quite limited. Nonetheless, the record establishes
that she suffers from obesity and anxiety and has had pneumonia. Carpenter candidly
testified at the video hearing before the Administrative Law Judge (ALJ) that she quit
work because she and her husband obtained custody of their three-year-old grandson
and that she could not return to work because she had to care for her three grandchildren.
[R. 24, 25-28.]

After the hearing, the ALJ issued a decision, finding that Carpenter’s date last
insured was December 31, 2010 [R. 10]; therefore, she had to establish disability on or
before that date. See 42 U.S.C. § 416(i)(3); Meredith v. Bowen, 833 F.2d 650, 652 n.1 (7th Cir.
1987). The ALJ also found that Carpenter had the medically determinable impairments
of obesity, pneumonia, and anxiety, but that none of these significantly limited her ability
to perform basic work activities for 12 consecutive months. Then the ALJ determined that
Carpenter did not have a severe impairment or combination of impairments [R. 10] and
concluded that she was not under a disability at any time from the alleged onset date
through the date last insured. [R. 16.]
When reviewing the ALJ’s decision, the Court determines whether it is supported
by substantial evidence and whether the ALJ applied the correct legal standards. See
Stepp v. Colvin, 795 F.3d 711, 718 (7th Cir. 2015); Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir.
2013). Having reviewed the record and the ALJ’s decision, the Court concludes that the
Commissioner’s decision in this case must be affirmed.
In seeking judicial review, Carpenter makes one argument—that the ALJ’s step 2
decision that she has no medically determinable impairment or combination of
impairments that are severe was not supported by substantial evidence and was contrary
to agency regulation and Social Security Ruling 85-28. All other perfunctory and
undeveloped arguments and arguments not raised until Carpenter’s reply brief have
been waived. See, e.g., Crespo v. Colvin, 824 F.3d 667, 673 (7th Cir. 2016) (“perfunctory and
undeveloped arguments, and arguments that are unsupported by pertinent authority,
are waived”); Griffin v. Bell, 694 F.3d 817, 822 (7th Cir. 2012) (“arguments raised for the
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first time in a reply brief are deemed waived”). This includes Carpenter’s suggestion that
the ALJ erred in acting without a medical advisor.
Furthermore, where the evidence is adequate to allow the ALJ to decide whether
the claimant suffers from a severe impairment(s) and is disabled, the ALJ need not seek
an opinion from a medical expert on the severity of a claimant’s impairments or on the
question of disability. See, e.g., Skarbek v. Barnhart, 390 F.3d 500, 504 (7th Cir. 2004); 20
C.F.R. § 404.1527(e)(2)(iii). In this case, the evidence was adequate to allow the ALJ to
determine whether Carpenter has a severe impairment or impairments and whether she
is disabled under the Social Security Act. Moreover, Carpenter does not specifically
identify which agency regulation the ALJ’s decision allegedly contradicted. Thus, such
an argument is waived as well. See, e.g., Crespo, 824 F.3d at 673 (“perfunctory and
undeveloped arguments, and arguments that are unsupported by pertinent authority,
are waived”). Besides, the Court has reviewed the ALJ’s decision in its entirety and is
unaware of any social security regulation that was contradicted by that decision.
As for Social Security Ruling 85-28, that ruling concerns the step 2 determination
of whether a medical impairment or combination of impairments is or are severe.
Impairments are not severe “when medical evidence establishes only a slight abnormality
or a combination of slight abnormalities which would have no more than a minimal effect
on an individual's ability to work.” SSR 85–28. “A determination that an impairment(s)
is not severe requires a careful evaluation of the medical findings which describe the
impairment(s) and an informed judgment about its (their) limiting effects on the
individual’s physical and mental ability(ies) to perform basic work activities.” Id. In this
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case, the ALJ conducted such a careful evaluation. Therefore, his decision is not contrary
to the social security ruling.
Lastly, Carpenter cited several cases but does not explain their relevance to her
case. Thus, any argument based on those cases is waived. See, e.g., Crespo, 824 F.3d at 673
(“perfunctory and undeveloped arguments, and arguments that are unsupported by
pertinent authority, are waived”). Besides, those cases are distinguishable because the
ALJ’s determination that Carpenter’s impairments are not severe, see 20 C.F.R. §
404.1520(c) (explaining that a severe impairment “significantly limits your physical or
mental ability to do basic work activities”), is supported by substantial evidence. Despite
arguing she suffered from multiple impairments that left her unable to work, Carpenter
has not pointed to any evidence to establish, let alone suggest, that any of these
impairments or impairments, singly or in combination, has more than a minimal effect
on her ability to perform basic work activities.
For these reasons, the Commissioner’s decision denying a period of disability and
disability insurance benefits is affirmed. A final judgment will be entered.
DATED: 3/22/2017

Electronic distribution to counsel of record

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