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Guerra v. Commissioner of Social Security

United States District Court, N.D. Indiana, Fort Wayne Division

November 18, 2016

JULIA A. GUERRA, Plaintiff,


          Susan Collins, United States Magistrate Judge.

         Plaintiff Julia A. Guerra appeals to the district court from a final decision of the Commissioner of Social Security (“Commissioner”) denying her application under the Social Security Act (the “Act”) for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”).[1] (DE 1). For the following reasons, the Commissioner's decision will be AFFIRMED.


         Guerra applied for DIB and SSI in September 2012, alleging disability as of May 30, 2009. (DE 12 Administrative Record (“AR”) 197-213). Guerra was last insured for DIB on December 31, 2009 (AR 42, 123), and thus, with respect to her DIB claim, she must establish that she was disabled as of that date. See Stevenson v. Chater, 105 F.3d 1151, 1154 (7th Cir. 1997) (explaining that with respect to a DIB claim, a claimant must establish that she was disabled as of her date last insured in order to recover DIB).

         The Commissioner denied Guerra's application initially and upon reconsideration. (AR 97-98, 123-31). After a timely request (AR 152), a hearing was held on April 2, 2014, before Administrative Law Judge Steven Neary (“the ALJ”), at which Guerra, who was represented by counsel, and a vocational expert, Marie Kieffer (the “VE”), testified (AR 37-74). On May 16, 2014, the ALJ rendered an unfavorable decision to Guerra, concluding that she was not disabled because she was capable of performing her past relevant work as an escort-vehicle driver despite the limitations caused by her impairments. (AR 17-32). The Appeals Council denied Guerra's request for review (AR 1-13), at which point the ALJ's decision became the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481.

         Guerra filed a complaint with this Court on August 19, 2015, seeking relief from the Commissioner's final decision. (DE 1). In this appeal, Guerra argues that: (1) the ALJ's step-four finding is not supported by substantial evidence because the ALJ failed to resolve a conflict between the VE's testimony and the Dictionary of Occupational Titles (“DOT”); and (2) the ALJ improperly “played doctor” in assessing her residual functional capacity (“RFC”). (DE 18 at 5-11).


         At the time of the ALJ's decision, Guerra was 52 years old (AR 32, 197); had a ninth grade education (AR 225); and had work experience as a dispatcher and an escort-vehicle driver (AR 274).

         A. Guerra's Testimony at the Hearing

         At the hearing on April 2, 2014, Guerra, who was five feet, four inches tall and weighed 272 pounds, testified that she lives with her husband, who had undergone bilateral leg amputations within the last three years.[3] (AR 39-40, 51-52, 54). She was without health insurance at the time of the hearing. (AR 57). She had been laid off from her last job as an escort-vehicle driver, but she stated that if she had not been laid off, she would have continued working in the job. (DE 40-41). She added, however, that there did come a time-approximately three years earlier-when she thought she could no longer have performed the escort-vehicle driver job due to her limitations. (AR 41-43).

         Guerra stated that she does not have a daily schedule, and about five days a month she does not even get out of bed. (AR 48-49). When she does get out of bed, she relaxes on the couch and sleeps until noon, watches television, naps in the afternoon, and then makes dinner. (AR 48). Sometimes she drives to visit her friends and family. (AR 49). She is independent with her self care, though she has some difficulty washing her hair. (AR 49).

         When asked why she thought that she could not work, Guerra stated that her knees and right shoulder “pop out” at times; she has difficulty concentrating; and she has shoulder arthritis, which has caused tingling and weakness in her right arm for the past six months. (AR 42-45). She added that sometimes she feels dizzy and then has an anxiety attack. (AR 53-54). Guerra conceded that her knees had been “popping out” for seven years and that this condition did not prevent her from working as an escort-vehicle driver during that time. (AR 44-45). During the hearing, Guerra informed the ALJ that her “knee [had] just popped out” (AR 44-45), describing the pain as “sharp” and “burning” (AR 46). As to her concentration difficulties, Guerra stated that she has difficulty concentrating while reading because her mind wanders or people talk to her, and then she has to reread the text. (AR 44).

         To treat her pain, Guerra was taking pain medication (Norco), which was helpful, and she had received a cortisone injection in her right shoulder, which was not helpful. (AR 45). She does not experience side effects from her medication. (AR 46). She estimated that she could walk one block, stand for 10 minutes, lift a gallon of milk, and sit without limitation. (AR 46-47).

         B. Summary of the Relevant Medical Evidence

         In February 2006, Guerra saw Leonard Kibiloski, M.D., for right knee pain after she slipped on a rug the previous day. (AR 513-15). X-rays revealed mild medial compartment arthritis. (AR 515). Dr. Kibiloski diagnosed her with a right knee contusion and right knee degenerative arthritis. (AR 515). He instructed her to continue activity as tolerated with full weight bearing. (AR 515). A March 2006 MRI revealed a possible chronic small tear of her anterior cruciate ligament, moderate degenerative joint disease, hypertrophic changes, and moderate effusion. (AR 443). Guerra was scheduled for surgery in May 2006, but cancelled it due to financial issues. (AR 499-505).

         In April 2007, Guerra was in an auto accident and tore her right rotator cuff and left and right menisci. (AR 434-37, 440-41, 516-19). Osteoarthritic changes in her right shoulder and a chronic, complete ACL tear were also discovered. (AR 434-47, 440-41). Guerra underwent an acromioplasty on her right shoulder in July 2007. (AR 459-63, 587-89).

         Guerra continued to complain of knee and shoulder pain through January 2014. (AR 301, 338, 369-71, 373-75, 386-87). In 2012, Guerra was diagnosed with major depressive disorder, post traumatic stress disorder, generalized anxiety disorder, dysthymic disorder, and rule out attention deficit/hyperactivity disorder. (AR 282-83, 316-20).

         On November 27, 2012, Donna Unversaw, Ph.D., a state agency psychologist, reviewed Guerra's record and opined that she had a mild restriction in activities of daily living and moderate difficulties in maintaining social functioning and in maintaining concentration, persistence, or pace. (DE 79). Dr. Unversaw further opined that Guerra was moderately limited in the following abilities: carrying out detailed instructions, maintaining attention and concentration for extended periods, completing a normal workday and workweek without interruption from psychologically-based symptoms and performing at a consistent pace without an unreasonable number and length of rest periods; interacting appropriately with the general public; and accepting instructions and responding appropriately to criticism from supervisors. (AR 81-82). Dr. Unversaw concluded in her narrative that Guerra was “capable of working in an environment that does not emphasize frequent/close contact with the public, coworkers, nor speed production, or complex task resolution.” (AR 83). On March 28, 2013, Kenneth Neville, Ph.D., another state agency psychologist, reviewed Guerra's record and reiterated the conclusions reached by Dr. Unversaw. (AR 103-04, 106-08, 115-16).

         On December 21, 2012, J. Corcoran, M.D., a state agency physician, reviewed Guerra's record and opined that she could lift 25 pounds frequently and 50 pounds occasionally; stand or walk six hours in an eight-hour workday; sit six hours in an eight-hour workday; and occasionally climb ramps, stairs, ladders, ropes, and scaffolds. (AR 80-81). On March 19, 2013, Fernando Montoya, M.D., another state agency physician, reviewed Guerra's record and reiterated the conclusions reached by Dr. Corcoran. (AR 104-06, 116-18).


         Section 405(g) of the Act grants this Court “the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the [Commissioner], with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). The Court's task is limited to determining whether the ALJ's factual findings are supported by substantial evidence, which means “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) (citation omitted). The decision will be reversed only ...

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