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Millsap v. Berryhill

United States District Court, N.D. Indiana

September 5, 2018

DANIEL EVERETT MILLSAP, Plaintiff,
v.
NANCY A. BERRYHILL, acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          CHIEF JUDGE THERESA L. SPRINGMANN, UNITED STATES DISTRICT COURT

         Plaintiff, Daniel Everett Millsap, seeks review of the final decision of the Commissioner of the Social Security Administration denying his application for Supplemental Security Income (SSI). The Plaintiff's application was denied initially and upon reconsideration. An administrative law judge (ALJ) held a hearing on the Plaintiff's application, and on November 27, 2015, the ALJ issued a Decision holding that the Plaintiff was not entitled to benefits because he was not disabled under the relevant provisions of the Social Security Act. On December 23, 2016, the Appeals Council denied the Plaintiff's request to review the ALJ's decision, thereby making the ALJ's decision the final decision of the Commissioner. The Plaintiff subsequently filed suit pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3).

         BACKGROUND

         The Plaintiff was born on October 7, 1976. (R. at 32, ECF No. 11.) The Plaintiff previously worked as a dishwasher and a laborer. (R. at 208.) In this case, the Plaintiff claimed to have become disabled on August 10, 2013, when he was struck by a car as a pedestrian. (R. at 22-28.) He claims to be disabled due to degenerative disc disease, history of fractured left tibia and fibula, degenerative joint disease, and arthritis of the right knee. (R. at 24.)

         THE ALJ'S HOLDING

         Disability is defined as being “unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. § 416.905(a). To be found disabled, a claimant must demonstrate that his physical or mental limitations prevent him from doing not only his previous work, but also any other kind of gainful employment that exists in the national economy, considering his age, education, and work experience. 20 C.F.R. § 416.905(a).

         An ALJ conducts a five-step inquiry in deciding whether to grant or deny benefits. 20 C.F.R. § 416.920(a)(4). The first step is to determine whether the claimant no longer engages in substantial gainful activity (SGA). 20 C.F.R. § 416.920(a)(4)(i). In the case at hand, the ALJ determined that the Plaintiff had not engaged in SGA since the alleged onset date of disability, and thus, the Plaintiff satisfied the step one inquiry. (R. at 24.)

         In step two, the ALJ determines whether the claimant has a severe impairment limiting the ability to do basic work activities pursuant to § 404.1520(c). Here, the ALJ determined that the Plaintiff's impairments of history of fractured left tibia and fibula, degenerative joint disease, and arthritis of the right knee were severe impairments because they significantly limited his ability to perform basic work activities. (R. at 25-26.)

         Step three requires the ALJ to “consider the medical severity of [the] impairment” to determine whether the impairment “meets or equals one of [the] listings in appendix 1 . . . .” § 416.920(a)(4)(iii). If a claimant's impairment(s), considered singly or in combination with other impairments, rises to this level, he earns a presumption of disability “without considering [his] education, and work experience.” § 416.920(d). But, if the impairment(s), either singly or in combination, falls short, an ALJ must move to step four and examine the claimant's “residual functional capacity” (RFC)-the types of things he can still do physically, despite his limitations-to determine whether he can perform this “past relevant work, ” § 416.920(a)(4)(v), (e), or whether the claimant can “make an adjustment to other work” given the claimant's “age, education, and work experience.” § 416.920(g).

         In the case at hand, the ALJ determined that the Plaintiff's impairments, either singly or in combination, do not meet or equal any of the listings in Appendix 1 and that the Plaintiff has the RFC to perform the full range of medium work as defined in 20 C.F.R. § 416.967(c), as the claimant is able to lift and/or carry 50 pounds occasionally and 25 pounds frequently and sit, stand and/or walk for six hours in an eight hour workday. (R. at 27.)

         In arriving at the RFC, the ALJ determined that the Plaintiff's medically determinable impairments could reasonably be expected to cause his alleged symptoms, “however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible.” (R. at 28.)

         Once the RFC is established, the ALJ uses it to determine whether the claimant can perform his past work and, if necessary, whether the claimant could perform other work in the economy. 20 C.F.R. § 416.920. At this initial step of the evaluation, the ALJ determined that transferability of job skills was not an issue because the claimant did not have past relevant work, but in light of his age, education, work experience, and RFC, that he could perform other jobs that existed in significant numbers in the national economy. (R. 33.) Specifically, the Vocational Expert (VE) testified at the hearing via teleconference that he could be an order picker, car detailer, and packager. (Id.)

         STANDARD OF REVIEW

         The decision of the ALJ is the final decision of the Commissioner when the Appeals Council denies a request for review. Liskowitz v. Astrue, 559 F.3d 736, 739 (7th Cir. 2009). A court will affirm the Commissioner's findings of fact and denial of disability benefits if they are supported by substantial evidence. Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008). Substantial evidence is ‚Äúsuch relevant evidence as a reasonable mind ...


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