United States District Court, S.D. Indiana, Indianapolis Division
ORDER MODIFYING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
SARAH EVANS BARKER, District Judge.
This is an action for judicial review of the final decision of Defendant Commissioner 1 of Social Security ("Commissioner") finding Plaintiff Penny Ford is not entitled to disability insurance benefits ("DIB"). The Administrative Law Judge ("ALJ") denied Ms. Ford's application for DIB after concluding that there are jobs that exist in significant numbers in the national economy that she can perform. This case was referred to Magistrate Judge LaRue for initial consideration. On July 24, 2014, Magistrate Judge LaRue issued a report and recommendation that the Commissioner's decision be reversed and remanded because the ALJ failed to properly obtain and evaluate the evidence. This cause is now before the Court on the Commissioner's Objections to the Magistrate Judge's Report and Recommendation. For the reasons set forth below, the Commissioner's objections are well taken and her decision is AFFIRMED.
Standard of Review
We review the Commissioner's denial of benefits to determine whether it was supported by substantial evidence or is the result of an error of law. Rice v. Barnhart, 384 F.3d 363, 368-369 (7th Cir. 2004); Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003). "Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). In our review of the ALJ's decision, we will not "reweigh evidence, resolve conflicts, decide questions of credibility, or substitute [our] own judgment for that of the Commissioner." Lopez, 336 F.3d at 539. However, the ALJ's decision must be based upon consideration of "all the relevant evidence, " without ignoring probative factors. Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994). In other words, the ALJ must "build an accurate and logical bridge" from the evidence in the record to his or her final conclusion. Dixon, 270 F.3d at 1176. We confine the scope of our review to the rationale offered by the ALJ. See SEC v. Chenery Corp., 318 U.S. 80, 93-95 (1943); Tumminaro v. Astrue, 671 F.3d 629, 632 (7th Cir. 2011).
When a party raises specific objections to elements of a magistrate judge's report and recommendation, the district court reviews those elements de novo, determining for itself whether the Commissioner's decision as to those issues is supported by substantial evidence or was the result of an error of law. Fed. R. Civ. Pro. 72(b). The district court "makes the ultimate decision to adopt, reject, or modify" the report and recommendation, and it need not accept any portion as binding; the court may, however, defer to those conclusions of the report and recommendation to which timely objections have not been raised by a party. See Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 759-61 (7th Cir. 2009).
There is no dispute related to Ms. Ford's medical records. Those records are thoroughly summarized by the ALJ, the parties, and the Magistrate Judge. Ms. Ford was 48 years old at the time of the hearing. She previously worked as a mold machine operator, forklift operator, trim press operator and karaoke DJ. Ms. Ford's earnings qualified as substantial gainful employment through 2009. She alleges an onset of disability as of January 4, 2008.
The ALJ found that Ms. Ford suffers from the severe impairments of chronic obstructive pulmonary disease ("COPD"), degenerative disc disease of the lumbar spine and fibromyalgia. Ms. Ford also alleged depression. Ms. Ford did not specifically allege obesity in her application, but testified that she is 5'1" and 200 pounds. Although Ms. Ford testified that she was a two-pack a day smoker for 30 years, she cut back to two cigarettes a day prior to the hearing. Ms. Ford believes she is unable to work because she has difficulty breathing (COPD).
Only two issues were raised on appeal by the Plaintiff. Plaintiff complains that the ALJ erred in discrediting Ms. Ford's most recent pulmonary function test ("PFT") and that the ALJ erred in not considering Ms. Ford's obesity. In her Report and Recommendation, Magistrate Judge LaRue concluded that the Commissioner's decision denying disability should be reversed and remanded. The Magistrate Judge found that the ALJ improperly discredited Ms. Ford's most recent PFT results and should have more fully developed the record as a result of Ms. Ford's latest PFT. Because the Magistrate Judge recommended remand, she also recommends that the ALJ explicitly consider Ms. Ford's obesity to make a disability determination. Defendant objects to the Magistrate Judge's Report and Recommendation on the basis that "substantial evidence supports the ALJ's finding that Plaintiff's impairments did not meet or medically equal a listing and her finding that Plaintiff could perform a limited range of light work." [Dkt. No. 25 at1.] Plaintiff did not respond to Defendant's objections. We will discuss each in turn.
A. Ms. Ford's Most Recent PFT and Listing 3.02.
The ALJ found that Ms. Ford suffers from severe impairments of COPD, degenerative disc disease of the lumbar spine and fibromyalgia. The ALJ found that "the medical evidence of record establishes COPD, but the evidence of the claimant's impairment does not meet or equal the severity of the listing section 3.02." [R. at 24-25.] Listing 3.02 for impairments involving chronic pulmonary insufficiency explains that an individual's impairment is of listing-level severity if an individual of Ms. Ford's height (61 inches) has an FEV1 equal to or less than 1.5 OR and FVC equal to or less than 1.35. 20 C.F.R. Part 404, Subpart P, Appendix 1, Listing 3.02. The parties agree that Plaintiff had three pulmonary function tests (PFTs), the results of which were:
Date FVC FEV1 August 9, 2006 1.77 1.29 May 27, 2010 2.34 1.55 August ...