United States District Court, S.D. Indiana, Indianapolis Division
TRACY H. HARLESS, Plaintiff,
NANCY A. BERRYHILL Acting Commissioner of the Social Security Administration, Defendant.
Baker United States Magistrate Judge
reviewing Plaintiff Tracy H. Harless's opening brief, the
Court experienced a sense of déjà vu.
Harless's entire argument section mirrors that from
Woytsek v. Berryhill, No. 1:16-CV-491-TAB-TWP, 2017
WL 562329, at *2 (S.D. Ind. Feb. 13, 2017). Attorney Patrick
Mulvaney represented Woytsek, and also represents Harless.
Mulvaney presents the same three arguments that he did in
Woytsek, mostly word for word-that the ALJ erred at
step three, failed to summon a medical expert, and erred at
step five. There is one difference. At least in
Woytsek, Mulvaney pointed to some evidence in his
argument. Here he does not. The result, however, is the same.
As in Woytsek, Harless's brief in support of
appeal [Filing No. 25] is denied and the
Commissioner's decision is affirmed.
February 3, 2012, Harless filed an application for Disability
Insurance Benefits. On March 3, 2014, Harless turned 45 years
old and filed an application for Supplemental Security
Income. Both applications alleged disability beginning
September 14, 2011, and both applications were denied
initially and upon reconsideration. Harless requested
reconsideration, attended a hearing with his attorney, and
testified before an ALJ, along with a medical expert, and
issued an opinion on September 4, 2014, concluding that
Harless became disabled on March 3, 2014, and is only
disabled for purposes of SSI. Harless is not disabled for
purposes of DIB because he became disabled after December 31,
2011, his date last insured . At step one, the ALJ found that
Harless has not engaged in substantial gainful activity since
the date of the application. At step two, the ALJ found that
Harless's severe impairments include diabetes with
associated neuropathy, coronary artery disease with high
blood pressure, arthritis and degenerative disc disease of
the lumbar spine, obesity, mood disorder, and antisocial
personality disorder. At step three, the ALJ found that
Harless's impairments do not meet or equal a listing.
four, the ALJ found that as of September 14, 2011, the date
Harless alleges he became disabled, Harless has the RFC to
perform sedentary work with the following limitations:
he can lift, carry, push, and pull ten pounds occasionally
and five pounds frequently. He can stand and walk two hours
in an eight-hour workday. He can sit six hours in an eight
hour workday. He can occasionally stoop, balance, crouch,
craw, kneel, and climb stairs and ramps. He can frequently
handle and finger bilaterally. He can occasionally perform
overhead work with his right arm. He should not work around
hazards such as unprotected heights or unguarded dangerous
moving machinery. He should not climb ladders, ropes, or
scaffolds. He can have only occasional, superficial
interaction with the public.
[Filing No. 14-2, at ECF p. 20.] The ALJ found that
Harless is unable to perform his past relevant work as an
auto repair claims adjustor, general construction worker,
service writer, counter parts person, or welder.
with Harless's 45th birthday on March 3, 2014, his age
category changed to an individual closely approaching
advanced age. At step five, the ALJ relied on
Medical-Vocational Rule 201.14 to find that once Harless
Dated this age category, there was no longer work he could
perform and he was therefore disabled. [Filing No. 14-2,
at ECF p. 30.] However, prior to March 3, 2014, the ALJ
relied on the testimony of a VE to find that Harless was able
to perform the jobs of a dispatcher, coupon scanner, and
order clerk. The ALJ concluded Harless was therefore not
disabled prior to March 3, 2014, but became disabled on that
date. [Filing No. 14-2, at ECF p. 30.]
found Harless is only disabled for purposes of SSI. The ALJ
denied Harless's application for DIB because he was not
under a disability between September 14, 2011, the date
Harless alleges he became disabled, through December 31,
2011, his date last insured. The ALJ's decision became
final when the Appeals Council denied Harless's request
for review. This appeal followed.
Standard of review
Court's review of the ALJ's decision is limited to
deciding whether the findings of fact are supported by
substantial evidence and whether there was an error of law.
Stepp v. Colvin, 795 F.3d 711, 718 (7th Cir. 2015);
Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013).
“Substantial evidence” means “such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Elder v. Astrue, 529
F.3d 408, 413 (7th Cir. 2008). The Court reviews the entire
record but does not reweigh the evidence or resolve conflicts
in the record; nor does the Court make credibility
determinations or substitute its own judgment for that of the
ALJ. Stepp, 795 F.3d at 718; Young v.
Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004). The ALJ
need not mention every bit of evidence in the record, but he
must build a “logical bridge” between the
evidence and his conclusions. Arnett v. Astrue, 676
F.3d 586, 592 (7th Cir. 2012); Varga v. Colvin, 794
F.3d 809, 813 (7th Cir. 2015).