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Harless v. Berryhill

United States District Court, S.D. Indiana, Indianapolis Division

February 21, 2017

TRACY H. HARLESS, Plaintiff,
v.
NANCY A. BERRYHILL[1] Acting Commissioner of the Social Security Administration, Defendant.

          ORDER

          Tim A. Baker United States Magistrate Judge

         I. Introduction

         In 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.

         II. Background

         On 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 Vocational Expert.

         The ALJ 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.

         At step 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.

         Beginning 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.]

         The ALJ 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.

         III. Standard of review

          The 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).

         IV. ...


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