United States District Court, S.D. Indiana, Indianapolis Division
ORDER OVERRULING PLAINTIFF'S OBJECTIONS TO
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
EVANS BARKER, United States District Court
an action for judicial review of the final decision of
Defendant Commissioner of Social Security
(“Commissioner”) finding that Plaintiff Josephine
Lucas is ineligible for Supplemental Security Income
(“SSI”) under Title XVI of the Social Security
Act (“the Act”). See 42 U.S.C.
§§ 416(i), 423(d), 1382c(a)(3). The Administrative
Law Judge (“ALJ”) found that Ms. Lucas failed to
qualify as disabled because she was capable, even with her
impairments, of performing other available work in the
national and local economy. R. at 21-22. After the Appeals
Council denied her request for review on September 22, 2015,
the Commissioner's decision became final, and Ms. Lucas
timely exercised her right to judicial review under 42 U.S.C.
§ 405(g). This case was referred to Magistrate Judge
Dinsmore for consideration, who, on June 17, 2016, issued a
Report and Recommendation that the Commissioner's
decision be upheld because it was supported by substantial
evidence and was otherwise in accord with the law. This case
is now before the Court on Plaintiff's Objections to the
Magistrate Judge's Report and Recommendation.
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 decision of
the ALJ, 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).
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, 759-761 (7th Cir. 2009).
Lucas interposes three objections to the Report and
Recommendation. First, she alleges that the Magistrate Judge
erred in determining that she plainly and intelligently
waived her right to counsel at the ALJ hearing. See
Pl.'s Objections 1-3; Rep. 6-12. Second, she argues that
the Magistrate Judge erroneously accepted the ALJ's
rejection of Dr. Besen's testimony on the applicable
dates of Ms. Lucas's disability. See Pl.'s
Objections 4-6; Rep. 5. Third, she objects to the Magistrate
Judge's affirmation of the ALJ's residual functional
capacity (“RFC”) assessment hypothetical, arguing
that it did not accurately incorporate all of her physical
limitations. See Pl.'s Objections 7; Rep.
6. We address these objections in turn below.
Waiver of right to counsel
Lucas first objects to the Magistrate Judge's finding
that she was properly advised of her right to counsel and
waived it. In support of her objection, Ms. Lucas cites to
the Seventh Circuit's decision in Thompson v.
Sullivan, 933 F.2d 581 (7th Cir. 1991) which she
maintains holds that written notices are insufficient to
ensure a valid waiver of the right to counsel and that the
ALJ must orally advise a claimant of this right. However,
Thompson does not hold that written notices are per
se inadequate; rather, it more generally requires only that
the claimant receive “sufficient information to enable
[her] to intelligently decide whether to retain counsel or
proceed pro se.” Id. at 584 (internal
quotation omitted). As discussed by the Magistrate Judge in
his findings and conclusions, here, the ALJ orally notified
Ms. Lucas of her right to counsel at her initial hearing by
explaining her entitlement to both contingency fee and free
representation services. Rep. at 7. She also received a
written explanation of the benefits of having representation
at the hearing as well as the various forms of legal
representation available, and attorneys' limits on any
recovery of claimant's past due benefits. Rep. at 7.
information was sufficient under Thompson to ensure
a valid waiver. See 933 F.2d at 584
(“Information that will ensure a valid waiver of
counsel includes an explanation of the manner in which an
attorney can aid in the proceedings, the possibility of free
counsel or a contingency arrangement, and the limitation on
attorneys' fees to twenty-five percent of past-due
benefits plus required court approval of fees.”). Ms.
Lucas was also allowed a full year between her initial
hearing with the ALJ and her second hearing to secure
counsel, yet did not do so. Rep. at 7. Given these facts, we
agree with the Magistrate Judge's finding that Ms. Lucas
knowingly and voluntarily waived her right to representation
because the written and oral notices she received fully
satisfied the standard established in Thompson.
Failure to address Dr. Besen's testimony
Lucas also contends that the ALJ erred in failing to address
Dr. Besen's opinion that in July 2011 Plaintiff was
unable to work for a limited period of time following her
diverticulitis surgery. See Pl.'s Objections at
4; R. at 18. SSI benefits may be awarded only at the
beginning of the “month following the month you filed
your application, ” not for disabilities occurring
prior to the filing date. 20 C.F.R. § 416.335. Ms. Lucas
filed for SSI benefits on June 11, 2012; therefore, her
limitations from that date forward were the only ones
relevant to the ALJ's decision. When limited to that
timeframe, Dr. Besen opined that Plaintiff had no physical
restrictions. The ALJ did consider this testimony, but
ultimately gave it “little weight, ” and, to
Plaintiff's benefit, the ALJ limited her to light
exertional work. See R. at 18; Rep. at 5.
Accordingly, the ALJ did not err by considering only the
portion of Dr. Besen's testimony that referenced the
relevant time period.
Lucas objects to the Magistrate Judge's acceptance of the
ALJ's Step 5 analysis, claiming it is erroneous because
the ALJ's RFC assessment and hypothetical given to the
vocational expert did not include limitations based on her
chronic pain. See Pl.'s Objections at 7; Rep. at
6. Upon review, we also conclude that this argument lacks
merit because the ALJ's RFC assessment and hypothetical
did appropriately capture Ms.Lucas's limitations. The ALJ
found that Ms. Lucas's chronic pain limits her ability to
lift, stand, and walk, and his RFC assessment and the
hypothetical given to the vocational expert included
limitations on her ability to lift, stand, and walk, such as
limiting her to “standing or walking, off and on, for a
total of approximately 6 hours of an 8-hour workday”
and “lifting no more ...