United States District Court, N.D. Indiana, Fort Wayne Division
ROBERT L. DERRY, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, sued as Nancy A. Berryhill, Acting Commissioner of SSA, Defendant.
OPINION AND ORDER
Collins, United States Magistrate Judge.
Robert L. Derry appeals to the district court from a final
decision of the Commissioner of Social Security
(“Commissioner”) denying his application under
the Social Security Act (the “Act”) for
Disability Insurance Benefits (“DIB”) and
Supplemental Security Income
(“SSI”). (DE 1). For the following reasons, the
Commissioner's decision will be AFFIRMED.
FACTUAL AND PROCEDURAL HISTORY
applied for DIB and SSI in April 2013, alleging disability as
of May 3, 2012. (DE 10 Administrative Record
(“AR”) 186-88, 194-99). Derry was last insured
for DIB on March 31, 2017 (AR 1063), and therefore, he must
establish that he was disabled as of that date with respect
to his DIB claim. See Stevenson v. Chater, 105 F.3d
1151, 1154 (7th Cir. 1997) (explaining that a claimant must
establish that he was disabled as of his date last insured in
order to recover DIB benefits). Derry's application was
denied on initial consideration and on reconsideration. (AR
hearing was held on February 14, 2014, before an
administrative law judge (“ALJ”), ALJ Maryann S.
Bright (“ALJ Bright”), at which Derry, who
appeared pro se, and a vocational expert testified.
(AR 59-90). On May 14, 2014, ALJ Bright rendered an
unfavorable decision to Derry, concluding that he was not
disabled because despite the limitations caused by his
impairments he could perform a significant number of
unskilled, medium-exertional jobs in the economy. (AR 43-53).
The Appeals Council denied Derry's request for review (AR
1-3), at which point ALJ Bright's decision became the
final decision of the Commissioner. See 20 C.F.R.
§§ 404.981, 416.1481.
December 23, 2015, Derry filed a civil action in this Court,
and on February 28, 2017, the Court issued an Opinion and
Order remanding the case to the Commissioner for further
proceedings. (AR 886-902). Pursuant to the Court's Order,
the Appeals Council remanded the case to an ALJ on June 12,
2017. (AR 905). On remand, a hearing was held before ALJ
Terry Miller (“ALJ Miller”) on December 12, 2017,
at which Derry, who was represented by counsel; Derry's
father; Dr. Nathan Strahl, a medical expert; and Marie
Barhydt, a vocational expert, testified. (AR 731-805). On
February 8, 2018, ALJ Miller rendered another unfavorable
decision to Derry, concluding that he was not disabled
because despite the limitations caused by his impairments he
could perform a significant number of unskilled,
light-exertional jobs in the economy. (AR 705-22). Derry did
not seek review of the decision by the Appeals Council, and
ALJ Miller's decision became the final decision of the
Commissioner. See 20 C.F.R. §§ 404.981,
filed a complaint with this Court on April 12, 2018, seeking
relief from the Commissioner's final decision. (DE 1). In
this appeal, Derry argues that ALJ Miller erred by: (1)
improperly discounting the opinion of Catherine Duchovic, his
treating psychiatric nurse practitioner; and (2) failing to
evaluate a one-page affidavit from Garrett Hill, a former
employer. (DE 18 at 9-14).
time of ALJ Miller's decision, Derry was 38 years old (AR
186, 722); had a high school education (AR 241); and had past
work experience as a janitor, fast food worker, drill press
operator, maintenance mechanic, sales clerk, and delivery
driver (AR 1150). Derry alleges disability due to the
following impairments: obesity, chronic left knee pain due to
a left knee injury/left knee chondrocalcinosis, bipolar I
disorder, social anxiety disorder, and social phobia. (DE 18
at 2). Derry does not challenge the findings of ALJ Miller in
regard to his physical residual functional capacity
(“RFC”) (DE 18 at 9-14); rather, his arguments
center on the ALJ's consideration of his mental
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 he
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 or
combination of impairments 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 his 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