Mitchell v. Commissioner of Social Security

Filing 24

DECISION AND ORDER signed by Magistrate Judge Nancy Joseph. IT IS ORDERED that the Commissioner's decision is AFFIRMED. IT IS FURTHER ORDERED that this action is DISMISSED. (cc: all counsel and mailed to pro se party)(asc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
QUELANDA S. MITCHELL,
Plaintiff,
v.

Case No. 20-CV-214

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
DECISION AND ORDER
Quelanda S. Mitchell seeks judicial review of the final decision of the Commissioner
of the Social Security Administration denying her claim for supplemental security income
and disability insurance benefits under the Social Security Act, 42 U.S.C. § 405(g). For the
reasons stated below, the Commissioner’s decision is affirmed, and the case is dismissed.
BACKGROUND
On September 23, 2016, Mitchell filed an application for a period of disability and
disability insurance benefits. (Tr. 33.) On April 20, 2017, Mitchell filed an additional
application for supplemental security income. (Id.) Mitchell filed these applications based on
the following impairments: rheumatoid arthritis, fibromyalgia, and pain in her elbow, leg,
and knee. (Tr. 99.) Both applications alleged disability beginning on March 20, 2016. (Id.)
Mitchell’s claims were denied initially and upon reconsideration. (Tr. 33.) Mitchell filed a
request for a hearing, and a hearing was held before an Administrative Law Judge (“ALJ”)
on May 7, 2019. (Tr. 54–98.) Mitchell testified at the hearing, as did Dennis Duffin, a
vocational expert (“VE”). (Tr. 54.)

In a written decision issued May 17, 2019, the ALJ found that Mitchell had the
following severe impairments: bilateral knee arthritis, rheumatoid arthritis, right leg deep vein
thrombosis, degenerative changes to the left elbow, depression, post-traumatic stress disorder,
and anxiety. (Tr. 35.) The ALJ further found that Mitchell did not have an impairment or
combination of impairments that met or medically equaled one of the listed impairments in
20 C.F.R. pt. 404, subpt. P, app. 1 (the “listings”). (Tr. 36.)
The ALJ found that Mitchell has the residual functional capacity (“RFC”) to perform
sedentary work with the following limitations: Mitchell requires a cane for ambulation; she
requires a position that will allow her to shift from a seated position to a standing position
and/or to stretch at intervals of approximately 30 minutes, provided she does not leave the
workstation and the shifting of positions results in her being off task no more than one to two
minutes with each position shift; she is incapable of climbing ladders, ropes and scaffolds and
is incapable of kneeling or crawling; she is capable of occasionally climbing ramps and stairs
and occasionally balancing, stooping, and crouching; she is capable of occasionally reaching
in all directions and occasionally pushing and pulling with the non-dominant left upper
extremity; and she is capable of frequently handling, fingering, feeling, and grasping with the
non-dominant left hand. (Tr. 44.)
The ALJ also limited Mitchell to no more than occasional exposure to extreme
temperatures, humidity and wetness, and vibrations; she must avoid all exposure to hazards,
including unprotected heights and moving mechanical parts; she is incapable of operating a
motor vehicle for work; she is incapable of traveling for work; she is able to understand,
remember, and carry out simple and detailed instructions and tasks up to SVP level four (i.e.,
work that can be learned over three months and up to and including six months) and work at

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a consistent pace throughout the workday at simple and detailed tasks but not at a production
rate pace where each task must be completed within a strict time deadline or within high
quota demands; she is able to make simple and detailed work related decisions in a job that
involves only occasional changes in a routine work setting; she is able to sustain concentration
and persist at simple and detailed tasks up to two hours at a time with normal breaks during
an eight hour workday; she is capable of frequent, but not constant, interaction with the
general public, coworkers, and supervisors and; she would be off task up to 5% of the workday
in addition to regularly scheduled breaks due to the combined effects of her impairments. (Tr.
44.)
While the ALJ found that Mitchell was unable to perform any of her past relevant
work, the ALJ found that given Mitchell’s age, education, work experience, and RFC, jobs
existed in significant numbers in the national economy that she could perform. (Tr. 44–45.)
As such, the ALJ found that Mitchell was not disabled from her alleged onset date through
the date of the decision. (Tr. 46.) The ALJ’s decision became the Commissioner’s final
decision when the Appeals Council denied Mitchell’s request for review. (Tr. 1–6.)
DISCUSSION
1.

Applicable Legal Standards

The Commissioner’s final decision will be upheld if the ALJ applied the correct legal
standards and supported her decision with substantial evidence. 42 U.S.C. § 405(g); Jelinek v.
Astrue, 662 F.3d 805, 811 (7th Cir. 2011). Substantial evidence is not conclusive evidence; it
is “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Schaaf v. Astrue, 602 F.3d 869, 874 (7th Cir. 2010) (internal quotation and citation
omitted). Although a decision denying benefits need not discuss every piece of evidence,

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remand is appropriate when an ALJ fails to provide adequate support for the conclusions
drawn. Jelinek, 662 F.3d at 811. The ALJ must provide a “logical bridge” between the
evidence and conclusions. Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).
The ALJ is also expected to follow the SSA’s rulings and regulations in making a
determination. Failure to do so, unless the error is harmless, requires reversal. Prochaska v.
Barnhart, 454 F.3d 731, 736–37 (7th Cir. 2006). In reviewing the entire record, the court does
not substitute its judgment for that of the Commissioner by reconsidering facts, reweighing
evidence, resolving conflicts in evidence, or deciding questions of credibility. Estok v. Apfel,
152 F.3d 636, 638 (7th Cir. 1998). Finally, judicial review is limited to the rationales offered
by the ALJ. Shauger v. Astrue, 675 F.3d 690, 697 (7th Cir. 2012) (citing SEC v. Chenery Corp.,
318 U.S. 80, 93–95 (1943); Campbell v. Astrue, 627 F.3d 299, 307 (7th Cir. 2010)).
2.

Application to This Case

Mitchell has been found disabled and awarded benefits as of May 18, 2019. (Pl.’s Br.,
Docket # 19; Docket # 19-1 at 22.) Thus, she challenges the denial of benefits for the closed
period between her alleged onset date of March 20, 2016 and the date of the decision denying
benefits, May 17, 2019. (Id.)
Mitchell argues that she attempted to have her treating physician, Dr. Richard
Hariman, complete a functional capacity test in support of her disability claim. (Id.) Mitchell
asserts that Dr. Hariman’s staff called her attorney and told him that as a rheumatologist, he
was unable to complete a functional capacity test and that Mitchell would need to see a
physical therapist to do the test. (Id.) Mitchell argues that, due to her attorney’s negligence,
she was not made aware of the failure to complete a functional capacity test prior to the
hearing. (Id.) Mitchell asserts that after her claims were denied on May 17, 2019, she

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completed both a functional capacity test and a bone density test. (Id.) Mitchell appends to
her brief Dr. Hariman’s May 31, 2019 Fibromyalgia RFC Questionnaire; Dr. Hariman’s May
31, 2019 functional capacity assessment; and medical records from July 2019, August 2019
(containing her bone density scan results), and June 2020. (Docket # 19-1 at 1–21.)
Mitchell argues that she was denied benefits due to her attorney’s “misrepresentation.”
(Docket # 19.) To the extent Mitchell argues that remand is warranted due to her attorney’s
alleged negligence, the constitutional right to effective assistance of counsel, while recognized
in criminal proceedings as grounded in the Sixth Amendment, See Strickland v. Washington,
466 U.S. 668, 685–86 (1984), is extremely limited or nonexistent in civil cases. “There is no
principle of effective assistance of counsel in civil cases.” Slavin v. C.I.R., 932 F.2d 598, 601
(7th Cir. 1991). Courts have consistently held that there is no ineffective assistance of counsel
claim in social security appeals. See, e.g., Miller v. Comm’r of Soc. Sec., 719 F. App’x 130, 134
(3rd Cir. 2017); Comett v. Astrue, 261 F. App’x 644, 651 (5th Cir. 2008); Russell v. Chater, 62
F.3d 1421, at *2 (8th Cir. 1995); Strople v. Colvin, No. 3:13–cv–1518– J–34MCR, 2015 WL
1470866, at *8 (M.D. Fla. Mar. 31, 2015) (“A social security claimant who was represented
by counsel of his own choosing cannot at a later time complain that the representation was
inadequate.”); Lemoine v. Colvin, No. 14–cv–079–CJP, 2015 WL 2148421, at *5 (S.D. Ill. May
6, 2015); Meadows v. Astrue, No. 1:11–cv–02378, 2012WL 5205798, at *4 (N.D. Ohio Sept.
25, 2012); Dowd v. Commissioner of Social Security, No. 8-1272, 2009 WL 2246153 (W.D. Penn.
July 26, 2009); Nelson v. Astrue, No. 07-2622, 2008 WL 4078464, at *7 (E.D. Penn. Aug. 29,
2008). Thus, even if Mitchell’s counsel provided inadequate representation, this cannot be a
basis for remand.

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To the extent Mitchell argues that the record before the ALJ was incomplete, when a
claimant is represented by an attorney, it is presumed that she has put her best case before the
ALJ. See Summers v. Berryhill, 864 F.3d, 523, 527 (7th Cir. 2017). At the hearing before the
ALJ, Mitchell was represented by counsel. (Tr. 54.) The ALJ asked Mitchell’s attorney “do
you consider the record complete?” (Tr. 57.) Mitchell’s attorney responded “[t]he file is
complete.” (Id.) As such, the ALJ’s decision was based on a record that was complete and
presumed to be Mitchell’s best case. Thus, the ALJ did not err in this regard.
Finally, given Mitchell’s inclusion of medical opinions and records post-dating the
ALJ’s decision, it appears that she is arguing that remand is warranted based on new evidence.
However, because the ALJ never had the opportunity to consider this evidence, it cannot
serve as the basis for reversal pursuant to sentence four of 42 U.S.C. § 405(g). See Eads v. Sec'y
of Health & Human Servs., 983 F.2d 815, 817–18 (7th Cir. 1993). Mitchell, however, did provide
to the Appeals Council at least some of the records (Dr. Hariman’s May 31, 2019 functional
capacity assessment and the August 2019 bone density scan records) (Tr. 8–25) that she now
argues support her disability claim. To the extent Mitchell failed to provide the other records
she now relies on to the Appeals Council, remand is only possible pursuant to sentence six of
§ 405(g), which allows a federal court to remand a matter to the Commissioner “upon a
showing that there is new evidence which is material and that there is good cause for the
failure to incorporate such evidence into the record in a prior proceeding.” Mitchell does not
make such a showing.
To the extent, however, that Mitchell did provide additional records to the Appeals
Council, under 20 C.F.R. § 404.970(b), additional evidence submitted to the Appeals Council
will be evaluated only if it is “new and material” and “relates to the period on or before the

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date of the [ALJ] hearing decision.” If the newly submitted evidence satisfies these conditions,
the Appeals Council shall incorporate that evidence into the administrative record and shall
then evaluate that record, “including the new and material evidence.” Id. In this case, the
Appeals Council considered Mitchell’s additional records, and found that the additional
evidence did not relate to the period at issue. (Tr. 2.) Although this Court can review an
Appeals Council’s decision that the evidence was “non-qualifying under the regulation”—in
this case, not time-relevant, see Stepp v. Colvin, 795 F.3d 711, 722 (7th Cir. 2015)—Mitchell
makes no argument as to how the Appeals Council erred.
Rather, it appears that Mitchell took the correct path of filing a new claim supported
by the evidence she now cites from 2019 and 2020, and was indeed found disabled as of May
18, 2019. But Mitchell fails to establish that the ALJ erred in his determination that she was
not disabled from March 20, 2016 through May 17, 2019. As such, the Commissioner’s
decision is affirmed.
CONCLUSION
For the reasons stated above, the Commissioner’s decision is affirmed, and the case is
dismissed.
ORDER
NOW, THEREFORE, IT IS ORDERED that the Commissioner’s decision is
AFFIRMED.
IT IS FURTHER ORDERED that this action is DISMISSED. The Clerk of Court
is directed to enter judgment accordingly.

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Dated at Milwaukee, Wisconsin this 16th day of July, 2021.
BY THE COURT

NANCY JOSEPH
JOSEPH
EP
EP
United States Magistrate Judge

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