United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
Collins, United States Magistrate Judge.
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”). (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.
FACTUAL AND PROCEDURAL HISTORY
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,
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).
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
STANDARD OF REVIEW
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
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).
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. §§
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. 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
The Commissioner's Final Decision
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).
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
(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).
Past Work as Substantial Gainful Activity
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).
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,
http://www.ssa.gov/oact/cola/sga.html (last visited
June 6, 2018).
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.
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.
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).
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
Past Work as ...