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Senkbeil v. Commissioner of Social Security

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

June 22, 2018



          Susan Collins, United States Magistrate Judge.

         Plaintiff Kelly Sue Senkbeil 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). Senkbeil filed her opening brief on May 26, 2017 (DE 16), and the Commissioner filed a response on September 6, 2017 (DE 21); Senkbeil declined to file a reply brief (DE 22). For the following reasons, the Commissioner's decision will be REVERSED, and the case will be REMANDED for further proceedings in accordance with this Opinion and Order.


         Senkbeil applied for DIB and SSI in May 2015, alleging disability as of May 20, 2014. (DE 10 Administrative Record (“AR”) 270-82). The Commissioner denied Senkbeil's application initially and upon reconsideration. (AR 171-231). A hearing was held on April 26, 2016, before Administrative Law Judge Stephanie Katich (the “ALJ”), at which Senkbeil, who was represented by counsel, and a vocational expert, Sharon Ringenberg (the “VE”), testified. (AR 42-90). On July 22, 2016, the ALJ rendered an unfavorable decision to Senkbeil, concluding that she was not disabled because despite the limitations caused by her impairments, she could perform her past relevant work as a fast-food worker, both as Senkbeil actual performed it and as it is generally performed. (AR 19-34). The Appeals Council denied Senkbeil's request for review (AR 1-6), at which point the ALJ's decision became the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481.

         Senkbeil filed a complaint with this Court on December 27, 2016, seeking relief from the Commissioner's final decision. (DE 1). In this appeal, Senkbeil challenges various aspects of the ALJ's step-four finding that she could perform her past relevant work as a fast-food worker. (DE 16 at 4-17).

         At the time of the ALJ's decision, Senkbeil was 55 years old (AR 34, 270) and had a 10th grade education (AR 303). Per the VE's past work summary, Senkbeil had past work experience as a gas station cashier, a newspaper delivery driver, and a fast-food worker. (AR 449). In her application, Senkbeil alleged disability due to a bipolar disorder, anxiety, depression, a heart condition, and high blood pressure. (AR 302).


         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 if it is not supported by substantial evidence or if the ALJ applied an erroneous legal standard. Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000) (citation omitted).

         To determine if substantial evidence exists, the Court reviews the entire administrative record but does not reweigh the evidence, resolve conflicts, decide questions of credibility, or substitute its judgment for the Commissioner's. Id. Rather, if the findings of the Commissioner are supported by substantial evidence, they are conclusive. Jens v. Barnhart, 347 F.3d 209, 212 (7th Cir. 2003) (citation omitted). “In other words, so long as, in light of all the evidence, reasonable minds could differ concerning whether [the claimant] is disabled, we must affirm the ALJ's decision denying benefits.” Books v. Chater, 91 F.3d 972, 978 (7th Cir. 1996).

         III. ANALYSIS

         A. The Law

         Under the Act, a claimant is entitled to DIB or SSI if she establishes an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to . . . last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 416(i)(1), 423(d)(1)(A), 1382c(a)(3)(A). A physical or mental impairment is “an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).

         The Commissioner evaluates disability claims pursuant to a five-step evaluation process, requiring consideration of the following issues, in sequence: (1) whether the claimant is currently unemployed; (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment meets or equals one of the impairments listed by the Commissioner, see 20 C.F.R. § 404, Subpt. P, App'x 1; (4) whether the claimant is unable to perform her past work; and (5) whether the claimant is incapable of performing work in the national economy.[2] See Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001) (citations omitted); 20 C.F.R. §§ 404.1520, 416.920. An affirmative answer leads either to the next step or, on steps three and five, to a finding that the claimant is disabled. Zurawski v. Halter, 245 F.3d 881, 886 (7th Cir. 2001) (citation omitted). A negative answer at any point other than step three stops the inquiry and leads to a finding that the claimant is not disabled. Id. (citation omitted). The burden of proof lies with the claimant at every step except the fifth, where it shifts to the Commissioner. Clifford, 227 F.3d at 868 (citation omitted).

         B. The Commissioner's Final Decision

         On July 27, 2016, the ALJ issued the decision that ultimately became the Commissioner's final decision. (AR 19-34). At step one of the five-step analysis, the ALJ found that Senkbeil had not engaged in substantial gainful activity since her alleged onset date. (AR 22). At step two, the ALJ found that Senkbeil had the following severe impairments: history of coronary artery disease, chronic obstructive pulmonary disease/emphysema, degenerative disc disease of the lumbar spine, a depressive disorder, a generalized anxiety disorder, and a bipolar disorder. (AR 22). At step three, the ALJ concluded that Senkbeil did not have an impairment or combination of impairments severe enough to meet or equal a listing. (AR 24-25).

         Before proceeding to step four, the ALJ determined that Senkbeil's symptom testimony was not entirely consistent with the medical evidence and other evidence of record (AR 27), and the ALJ assigned her the following RFC:

[T]he claimant has the [RFC] to perform light work . . . except that she can occasionally climb ramps and stairs, she can never climb ladders, ropes, or scaffolds, she can frequently balance, stoop, and kneel, she can occasionally crouch and crawl, she should avoid concentrated exposure to extreme cold, extreme heat and humidity, fumes, odors, dusts, gases, and poor ventilation, and she should avoid all exposure to hazards such as heights and dangerous moving machinery. In addition, the claimant can understand, remember, and carry out simple instructions and tasks, she can make judgments on simple work-related decisions, she can respond appropriately to usual work situations, she can deal with routine changes in a routine work setting, and she can respond appropriately to supervisors, coworkers, and the general public.

(AR 26). Based on the RFC and the VE's testimony, the ALJ concluded at step four that Senkbeil could perform her past relevant work as a fast-food worker, either as generally or as actually performed. (AR 33). Therefore, Senkbeil's applications for DIB and SSI were denied. (AR 33).

         C. Past Work as Substantial Gainful Activity

         Senkbeil first argues that her past employment at Burger King did not constitute past relevant work under the regulations because it was not performed at the substantial gainful activity level. As such, Senkbeil contends that the ALJ erred by not proceeding to step five and finding that she was deemed disabled under the Medical-Vocational Guidelines based on her “advanced age” of 55, her limited education, and her assigned RFC for light work. (DE 16 at 5).

         A position qualifies as past relevant work “when it was done within the last 15 years, lasted long enough for [a claimant] to learn to do it, and was substantial gainful activity.” 20 C.F.R. §§ 404.1565, 416.965; see also SSR 82-62, 1982 WL 31386, at *1 (Jan. 1, 1982). Generally, in evaluating work activity for substantial gainful activity purposes, the primary consideration is the earnings derived from the work activity. 20 C.F.R. §§ 404.1574(a)(1), 416.974(a)(1). Under Social Security regulations, the monthly substantial gainful activity amount was $980 in 2009 and $1000 in 2010 and 2011. Substantial Gainful Activity, (last visited June 6, 2018).

         Senkbeil asserts that her earnings from Burger King in 2009 to 2011 do not represent substantial gainful earnings. More specifically, Senkbeil suggests that her work history report submitted with her application, which indicates that she worked as a crew member at a restaurant (Burger King) from December 2009 and March 2011, “might be somewhat inaccurate.” (DE 16 at 6 (citing AR 308)). She points to the certified earnings record that was added by the Agency, which reflects totals earnings of $2756.25 in 2008, $346.50 in 2009, $9788.05 in 2010, and $3055.21 in 2011. (DE 16 at 6 (citing AR 285, 292)). Senkbeil urges that the certified earnings record reveals earned work credits in the first two quarters of 2011, indicating that she may have worked after March 2011 as she initially represented. She claims that if she did work into the second quarter of 2011, then she actually earned less per month in 2011 than the monthly substantial gainful activity amount.

         Senkbeil's argument is speculative, and thus, unpersuasive. At the hearing, Senkbeil testified that she quit her job at Burger King after a year and a half, apparently over a disagreement with her boss. (AR 59-61, 302). She testified that she “ran the kitchen” at Burger King, that it was a full-time job, and that she sometimes worked more than 40 hours per week. (AR 59-60). Senkbeil represents on her work history report submitted with her application that she was a kitchen worker from 2009 to 2011, earning $8.25 an hour, five days a week, which equates to about $1320 a month. (AR 366, 386). Senkbeil earned $3055.21 in 2011 and represented on her work history report that she stopped working in March of that year, which would also equate to earning over $1000 a month. (AR 285, 292, 308). The ALJ reasonably determined from the evidence of record and Senkbeil's testimony that Senkbeil's past employment at Burger King qualified as past relevant work.

         Moreover, the ALJ and the VE both stated at the hearing that Senkbeil's past job at Burger King, which the VE characterized as a fast-food worker, was past relevant work. (AR 33, 68-69, 79, 86). Senkbeil, who was represented by counsel at the hearing, did not question or object to this conclusion about her earnings at that time. Nor did Senkbeil raise the issue of earnings in her post-hearing argument submitted one week after the hearing. (AR 455-68). “When an applicant for social security benefits is represented by counsel the administrative law judge is entitled to assume that the applicant is making [her] strongest case for benefits.” Glenn v. Sec'y of Health & Human Servs., 814 F.2d 387, 391 (7th Cir. 1987); see also Buckhanon ex rel. J.H. v. Astrue, 368 Fed.Appx. 674, 679 (7th Cir. 2010); Skinner v. Astrue, 478 F.3d 836, 842 (7th Cir. 2007).

         In sum, it is Senkbeil, as the claimant, who bears the burden at step four to prove that she cannot perform her past relevant work. See Young v. Sec'y of Health & Human Servs., 957 F.2d 386, 389 (7th Cir. 1992); Arbogast v. Bowen, 860 F.2d 1400, 1403 (7th Cir. 1988). Here, Senkbeil does not provide any specific date that she stopped working other than March 5, 2011, and thus, her argument amounts to mere speculation. Furthermore, Senkbeil was represented by counsel at the hearing and had the opportunity to challenge the ALJ's and the VE's assessment of her past earnings as past relevant work, but she did not do so. Nor did she raise the issue of her earnings in her post-hearing submissions. Therefore, Senkbeil has failed to satisfy her burden in her first challenge to the ALJ's step-four determination.

         D. Past Work as ...

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