United States District Court, S.D. Indiana, Indianapolis Division
ENTRY ON JUDICIAL REVIEW
WALTON PRATT, JUDGE
Dora R. 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
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.
STANDARD OF REVIEW
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).
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).
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.
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).
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).
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).
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
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 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
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.)
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.
The Appeals Council Order, Mental
first asserts that the ALJ failed to follow the AC Order,
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
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.