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Dora R. v. Berryhill

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

November 7, 2018

DORA R., Plaintiff,
NANCY A. BERRYHILL, Deputy Commissioner for Operations, Social Security Administration, Defendant.



         Plaintiff Dora R.[1] requests judicial review of the final decision of the Deputy Commissioner for Operations of the Social Security Administration (the “SSA”), denying her application for Disability Insurance Benefits (“DIB”) under the Social Security Act (the “Act”). For the following reasons, the Court AFFIRMS the decision of the Deputy Commissioner.


         On September 8, 2011, Dora R. filed an application for DIB, alleging a disability onset date of March 9, 2010. (Filing No. 14-5 at 2.) Her application was initially denied on December 27, 2011, (Filing No. 14-4 at 7), and upon reconsideration on April 18, 2012, (Filing No. 14-4 at 17). Administrative Law Judge Elliott Bunce conducted a hearing on June 4, 2013, (Filing No. 14-2 at 66-106), before issuing an unfavorable decision on June 24, 2013 (the “2013 ALJ Decision”) (Filing No. 14-2 at 41). The Appeals Council denied review on September 20, 2014. (Filing No. 14-2 at 2.) Following the filing of a civil suit seeking judicial review, an order issued on May 8, 2015, granted a joint motion to remand the claim. (Filing No. 19-1 at 6.) On October 6, 2015, the Appeal Council issued an order (the “AC Order”) vacating the 2013 ALJ Decision and remanding the claim to an Administrative Law Judge. (Filing No. 19-2 at 1-6.) On February 12, 2016, a new hearing was conducted by Administrative Law Judge Michael Carr (“the ALJ”), at which Dora R., represented by counsel, and a vocational expert, James Green, appeared and testified. (Filing No. 15-3 at 4-65.) On July 5, 2016, the ALJ issued a decision (the “ALJ's decision” or the “decision”) concluding that Dora R. was not entitled to receive DIB. (Filing No. 15-2 at 38.) On September 15, 2017, the Appeals Council provided notice that they had considered the reasons Dora R. disagreed with the decision but found no reason to assume jurisdiction. (Filing No. 15-1 at 20; see 20 C.F.R. § 404.984(a)-(b)(2) (when the Appeals Council does not assume jurisdiction of an appeal after a federal court remand, the ALJ's decision becomes the final decision of the Deputy Commissioner).) On November 6, 2017, Dora R. timely filed this civil action, asking the Court pursuant to 42 U.S.C. §§ 405(g) to review the final decision of the Deputy Commissioner denying her benefits. (Filing No. 1.)


         Under the Act, a claimant may be entitled to benefits only after she establishes that she is disabled. Disability is defined as the “inability 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. § 423(d)(1)(A). To be found disabled, a claimant must demonstrate that her physical or mental limitations prevent her from doing not only her previous work but any other kind of gainful employment which exists in the national economy, considering her age, education, and work experience. 42 U.S.C. § 423(d)(2)(A).

         The Deputy Commissioner employs a five-step sequential analysis to determine whether a claimant is disabled. At step one, if the claimant is engaged in substantial gainful activity, she is not disabled despite her medical condition and other factors. 20 C.F.R. § 404.1520(a)(4)(i). At step two, if the claimant does not have a “severe” impairment that also meets the durational requirement, she is not disabled. 20 C.F.R. § 404.1520(a)(4)(ii). A severe impairment is one that “significantly limits [a claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). At step three, the Deputy Commissioner determines whether the claimant's impairment or combination of impairments meets or medically equals any impairment that appears in the Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1, and whether the impairment meets the twelve-month duration requirement; if so, the claimant is deemed disabled. 20 C.F.R. § 404.1520(a)(4)(iii).

         If the claimant's impairments do not meet or medically equal one of the impairments on the Listing of Impairments, then her residual functional capacity will be assessed and used for the fourth and fifth steps. Residual functional capacity (“RFC”) is the “maximum that a claimant can still do despite [her] mental and physical limitations.” Craft v. Astrue, 539 F.3d 668, 675-76 (7th Cir. 2008) (citing 20 C.F.R. § 404.1545(a)(1); Social Security Ruling (“SSR”) 96-8p). At step four, if the claimant can perform her past relevant work, she is not disabled. 20 C.F.R. § 404.1520(a)(4)(iv). At the fifth and final step, it must be determined whether the claimant can perform any other work, given her RFC and considering her age, education, and past work experience. 20 C.F.R. § 404.1520(a)(4)(v). The claimant is not disabled if she can perform any other work in the relevant economy.

         The combined effect of all the impairments of the claimant shall be considered throughout the disability determination process. 42 U.S.C. § 423(d)(2)(B). The burden of proof is on the claimant for the first four steps; it then shifts to the Deputy Commissioner for the fifth step. Young v. Sec'y of Health & Human Servs., 957 F.2d 386, 389 (7th Cir. 1992).

         When an applicant appeals an adverse benefits decision, this Court's role is limited to ensuring that the ALJ applied the correct legal standards and that substantial evidence exists for the ALJ's decision. Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004) (citation omitted). For the purpose of judicial review, “[s]ubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quotation omitted). Because the ALJ “is in the best position to determine the credibility of witnesses, ” Craft, 539 F.3d at 678, this Court must accord the ALJ's credibility determination “considerable deference, ” overturning it only if it is “patently wrong.” Prochaska v. Barnhart, 454 F.3d 731, 738 (7th Cir. 2006) (quotations omitted).

         If the ALJ committed no legal error and substantial evidence exists to support the ALJ's decision, the Court must affirm the denial of benefits. Barnett, 381 F.3d at 668. When an ALJ's decision is not supported by substantial evidence, a remand for further proceedings is typically the appropriate remedy. Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 355 (7th Cir. 2005). An award of benefits “is appropriate where all factual issues have been resolved and the record can yield but one supportable conclusion.” Id. (citation omitted).


         Dora R. was 44 years of age at the time she applied for DIB. (Filing No. 14-5 at 2.) She has obtained a GED, certification as a nursing assistant, and has worked as a collections clerk, (Filing No. 15-2 at 49), and a call center operator, (Filing No. 15-2 at 57).[2]

         The ALJ followed the five-step sequential evaluation set forth by the SSA in 20 C.F.R. § 404.1520(a)(4) and ultimately concluded that Dora R. was not disabled. (Filing No. 15-2 at 59.) The ALJ found that Dora R. met the insured status requirement for DIB through September 30, 2016. (Filing No. 15-2 at 44.) At step one, the ALJ found that Dora R. had engaged in substantial gainful activity[3] since March 9, 2010, the alleged onset date, during the period beginning in July 2013 through September 2014. (Filing No. 15-2 at 44-46.) However, the ALJ found that there had been “continuous 12-month period(s)” during which Dora R. did not engage in substantial gainful activity, so the ALJ continued to make findings at the later steps of the process pertaining to those periods. (Filing No. 15-2 at 46.) At step two, the ALJ found that she had the following severe impairments: “obesity; hypertension; diabetes mellitus; obstructive sleep apnea/mild ventilator defect/asthma; degenerative joint disease of [the] right knee; degenerative disc disease of the lumbar spine; and degenerative joint disease of the right hip (20 CFR 404.1520(c)).” (Filing No. 15-2 at 46.) At step three, the ALJ found that Dora R. did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments. (Filing No. 15-2 at 49.) After step three but before step four, the ALJ found that she had the RFC to:

perform sedentary work as defined in 20 CFR 404.1567(a). The undersigned further reduced the residual functional capacity such that the claimant can occasionally climb ramps/stairs, balance, kneel, stoop, crawl, or crouch, but must never climb ladders, ropes, or scaffolds. She can tolerate occasional exposure to unprotected heights, moving mechanical parts, uneven terrain; occasional exposure to poor ventilation, pulmonary irritants, and humidity; and frequent exposure to extreme cold, extreme heat, and wetness.

(Filing No. 15-2 at 50.) At step four, the ALJ concluded, relying on the testimony of the vocational expert (“VE”) and considering Dora R.'s RFC, that she was capable of performing her past relevant work as a call center operator. (Filing No. 15-2 at 57.) Proceeding in the alternative to step five, the ALJ found, relying on the testimony of the vocational expert and considering Dora R.'s age, education, work experience, and RFC, that she was capable of performing other work that exists in significant numbers in the national economy as an order clerk, charge account clerk, and circuit board tester. (Filing No. 15-2 at 58.)


         Dora R. raises five issues in support of her appeal: A) the ALJ erred at step two by failing to find severe mental impairments pursuant to the AC Order, B) the ALJ erred at step three by failing to discuss the evidence supporting his findings, C) the ALJ erred by not including limitations in his RFC finding for Dora R.'s non-severe mental impairments, D) the ALJ erred by not considering all of Dora R.'s impairments, both severe and non-severe, and E) the ALJ erroneously relied on Dora R.'s attempts to work as evidence that she could perform skilled and semi-skilled work. (Filing No. 19 at 15.) The Court will discuss each issue in turn.

         A. The Appeals Council Order, Mental Impairments

         Dora R. first asserts that the ALJ failed to follow the AC Order, [4] which she contends specified that (1) her mental impairments are severe, (2) she has at least moderate difficulties in concentration, persistence, or pace, and (3) her RFC needed to include mental limitations. (Filing No. 19 at 15-17.)

         “The very essence of judicial review is to determine whether an agency complies with its own regulations and procedures so that there may be uniformity in decisions.” Moore v. Colvin, 2013 WL 4584618, at *5 (S.D. Ind. Aug. 28, 2013) (citing Sierra Club v. Martin,168 F.3d 1, 4 (11th Cir. 1999) (“courts must overturn agency actions which do not scrupulously follow the regulations and procedures promulgated by the agency itself”). “When a Federal court remands a case to the [Deputy] Commissioner for further consideration, the Appeals Council, acting on behalf of the [Deputy] Commissioner, may make a decision, or it may remand the case to an administrative law judge with instructions to take action and issue a decision . . ..” 20 C.F.R. §404.983. “If the case is remanded by the Appeal Council, the procedures explained in §404.977 will be followed.” Id. ...

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