United States District Court, S.D. Indiana, New Albany Division
REPORT AND RECOMMENDATION ON COMPLAINT FOR JUDICIAL
McVicker Lynch United States Magistrate Judge
matter was referred to the Magistrate Judge under 28 U.S.C.
§ 636(b)(1)(B) and Fed.R.Civ.P. 72(b) for a report and
recommendation as to its appropriate disposition. As
addressed below, the Magistrate Judge recommends that the
District Judge REVERSE AND REMAND under sentence four the
decision of the Acting Commissioner of the Social Security
Administration (“Commissioner”) that plaintiff
Luanne S. is not disabled.
Plaintiff Luanne S. applied in December 2007 for Disability
Insurance Benefits and Supplemental Security Income benefits
based on disability under Titles II and XVI, respectively, of
the Social Security Act, alleging she has been disabled since
December 5, 2007. Although her applications were denied
initially and upon reconsideration, an administrative law
judge-without holding a hearing, but based on the strength of
the record-found that she was disabled as of her alleged
onset date and awarded benefits. The Agency's Office of
Inspector General later determined that Luanne's benefits
decision likely was affected by fraud and therefore her
qualification for benefits must be redetermined. There is no
suggestion that Luanne was part of the fraud. Rather, the
Agency's OIG investigation uncovered a fraudulent
benefits scheme perpetrated by a particular attorney, several
medical doctors or psychologists in cahoots with the
attorney, and an administrative law judge. Because the prior
benefits decision in Luanne's favor was based on a
medical opinion of one of these doctors whose opinions the
Agency determined could not be relied upon and because the
remaining evidence did not support the decision, the Appeals
Council remanded Luanne's case for a new hearing and
redetermination whether she was disabled as of the
date-February 6, 2009-the original ALJ decided the
applications in her favor.
hearing, by video, was held on December 7, 2016, before
administrative law judge Robert M. Butler. (There were three
attempts to hold the hearing before December 7, but each time
Luanne was granted a postponement so that she could obtain
counsel and medical records could be gathered.) ALJ Butler
issued a decision on April 27, 2017, that Luanne was not
disabled as of February 6, 2009. The Appeals Council denied
review of the ALJ's decision on November 13, 2017,
rendering the ALJ's decision for the Commissioner final.
Luanne timely filed this civil action under 42 U.S.C. §
405(g) for review of the Commissioner's decision.
argues that the Commissioner's decision must be reversed
and remanded because the ALJ did not properly account for her
moderate difficulties with concentration, persistence, and
pace in his RFC or in the hypothetical to the vocational
court will first describe the legal framework for analyzing
disability claims and the court's standard of review, and
then address Luanne's specific assertion of error.
for Proving Disability
prove disability, a claimant must show she is 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 twelve months.” 42 U.S.C. §
423(d)(1)(A). Luanne is disabled if her impairments are of
such severity that she is not able to perform the work she
previously engaged in and, if based on her age, education,
and work experience, she cannot engage in any other kind of
substantial gainful work that exists in significant numbers
in the national economy. 42 U.S.C. § 423(d)(2)(A). The
Social Security Administration has implemented these
statutory standards by, in part, prescribing a five-step
sequential evaluation process for determining disability. 20
C.F.R. § 404.1520.
one asks if the claimant is currently engaged in substantial
gainful activity; if she is, then she is not disabled. Step
two asks whether the claimant's impairments, singly or in
combination, are severe; if they are not, then she is not
disabled. 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). The third step is an analysis of whether
the claimant's impairments, either singly or in
combination, meet or equal the criteria of any of the
conditions in the Listing of Impairments, 20 C.F.R. Part 404,
Subpart P, Appendix 1. The Listing of Impairments includes
medical conditions defined by criteria that the SSA has
predetermined are disabling, so that if a claimant meets all
of the criteria for a listed impairment or presents medical
findings equal in severity to the criteria for a listed
impairment, then the claimant is presumptively disabled and
qualifies for benefits. 20 C.F.R. § 404.1520(a)(4)(iii).
claimant's impairments do not satisfy a listing, then her
residual functional capacity (RFC) is determined for purposes
of steps four and five. RFC is a claimant's ability to do
work on a regular and continuing basis despite her
impairment-related physical and mental limitations. 20 C.F.R.
§ 404.1545. At the fourth step, if the claimant has the
RFC to perform her past relevant work, then she is not
disabled. The fifth step asks whether there is work in the
relevant economy that the claimant can perform, based on her
vocational profile (age, work experience, and education) and
RFC; if so, then she is not disabled.
claimant bears the burden of proof at steps one through four.
Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). If
the claimant meets that burden, then the Commissioner has the
burden at step five to show that work exists in significant
numbers in the national economy that the claimant can
perform, given her vocational profile and functional
capacity. 20 C.F.R. § 404.1560(c)(2); Young v.
Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004).
for Review of the ALJ's Decision
Judicial review of the Commissioner's (or ALJ's)
factual findings is deferential. A court must affirm if no
error of law occurred and if the findings are supported by
substantial evidence. Dixon v. Massanari, 270 F.3d
1171, 1176 (7thCir. 2001). Substantial evidence
means evidence that a reasonable person would accept as
adequate to support a conclusion. Id. The standard
demands more than a scintilla of evidentiary ...