United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
R. CHERRY MAGISTRATE JUDGE
matter is before the Court on a Complaint [DE 1], filed by
Plaintiff David Duwayne McMillion on February 29, 2016, and
Plaintiff's Memorandum in Support of his Motion to
Reverse the Decision of the Commissioner of Social Security
[DE 16], filed by Plaintiff on August 22, 2016. Plaintiff
requests that the August 25, 2014 decision of the
Administrative Law Judge denying his claim for disability
insurance benefits and supplemental security income be
reversed and remanded for further proceedings. On October 3,
2016, the Commissioner filed a response, and Plaintiff filed
a reply on October 24, 2016. For the following reasons, the
Court grants Plaintiff's request for remand.
filed an application for disability insurance benefits and
supplemental security income on November 5, 2012, alleging
disability since December 13, 2011. The claims were denied
initially and on reconsideration. On June 19, 2013, Plaintiff
filed a written request for hearing. On May 27, 2014,
Administrative Law Judge Joel Fina (“ALJ”) held a
hearing. In attendance at the hearing were Plaintiff,
Plaintiff's attorney, an impartial vocational expert,
medical expert Dr. David Biscardi, and medical expert Dr.
Ashok Jilhewar. On August 25, 2014, the ALJ issued a written
decision denying benefits, making the following findings:
The claimant meets the insured status requirements of the
Social Security Act through December 31, 2013.
The claimant has not engaged in substantial gainful activity
since December 13, 2011, the alleged onset date.
The claimant has the following severe impairment: Class III
obesity, degenerative disc disease of the lumbar spine,
degenerative joint disease of the right knee, hepatitis C
infection and a history of alcohol abuse.
The claimant does not have an impairment or combination of
impairments that meets or medically equals one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1.
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform light work as defined in 20
CFR 404.1567(b) and 416.967(b) except claimant is limited to
frequent climbing (ladders, ropes, scaffolds, ramps and
stairs), balancing, stooping, crouching, kneeling and
The claimant is unable to perform any past relevant work.
The claimant was born [in 1962] and was 49 years old, which
is defined as a younger individual age 18-49, on the alleged
disability onset date.
The claimant has a limited education and is able to
communicate in English.
Transferability of job skills is not material to the
determination of disability because using the
Medical-Vocational Rules as a framework supports a finding
that the claimant is “not disabled, ” whether or
not the claimant has transferable job skills.
Considering the claimant's age, education, work
experience, and residual functional capacity, there are jobs
that exist in significant numbers in the national economy
that the claimant can perform.
The claimant has not been under a disability, as defined in
the Social Security Act, from December 13, 2011, through the
date of this decision.
Appeals Council denied Plaintiff's request for review,
leaving the ALJ's decision the final decision of the
Commissioner. See 20 C.F.R. §§ 404.981,
416.1481. Plaintiff filed this civil action pursuant to 42
U.S.C. § 405(g) for review of the Agency's decision.
parties filed forms of consent to have this case assigned to
a United States Magistrate Judge to conduct all further
proceedings and to order the entry of a final judgment in
this case. Therefore, this Court has jurisdiction to decide
this case pursuant to 28 U.S.C. § 636(c) and 42 U.S.C.
Social Security Act authorizes judicial review of the final
decision of the agency and indicates that the
Commissioner's factual findings must be accepted as
conclusive if supported by substantial evidence. 42 U.S.C.
§ 405(g). Thus, a court reviewing the findings of an ALJ
will reverse only if the findings are not supported by
substantial evidence or if the ALJ has applied an erroneous
legal standard. See Briscoe v. Barnhart, 425 F.3d
345, 351 (7th Cir. 2005). Substantial evidence consists of
“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) (quoting Gudgel v. Barnhart, 345 F.3d 467, 470
(7th Cir. 2003)).
reviews the entire administrative record but does not
reconsider facts, re-weigh the evidence, resolve conflicts in
evidence, or substitute its judgment for that of the ALJ.
See Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir.
2005); Clifford v. Apfel, 227 F.3d 863, 869 (7th
Cir. 2000); Butera v. Apfel, 173 F.3d 1049, 1055
(7th Cir. 1999). Thus, the question upon judicial review of
an ALJ's finding that a claimant is not disabled within
the meaning of the Social Security Act is not whether the
claimant is, in fact, disabled, but whether the ALJ
“uses the correct legal standards and the decision is
supported by substantial evidence.” Roddy v.
Astrue, 705 F.3d 631, 636 (7th Cir. 2013) (citing
O'Connor-Spinner v. Astrue, 627 F.3d 614, 618
(7th Cir. 2010); Prochaska v. Barnhart, 454 F.3d
731, 734-35 (7th Cir. 2006); Barnett v. Barnhart,
381 F.3d 664, 668 (7th Cir. 2004)). “[I]f the
Commissioner commits an error of ...