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Thembi D. v. Saul

United States District Court, N.D. Indiana, Hammond Division

September 12, 2019

THEMBI D.[1], Plaintiff,
ANDREW M. SAUL, Commissioner of Social Security, Defendant.


          Andrew P. Rodovich United States Magistrate Judge

         This matter is before the court on petition for judicial review of the decision of the Commissioner filed by the plaintiff, Thembi D., on July 6, 2018. For the following reasons, the decision of the Commissioner is REMANDED.


         The plaintiff, Thembi D., filed applications for Disability Insurance Benefits and Supplemental Security Income on December 29, 2014, alleging a disability onset date of September 18, 2014. (Tr. 15). The Disability Determination Bureau denied Thembi D.'s applications initially on February 13, 2015, and again upon reconsideration on June 23, 2015. (Tr. 15). Thembi D. subsequently filed a timely request for a hearing on August 12, 2015. (Tr. 15). A hearing was held on May 24, 2017, before Administrative Law Judge (ALJ) Michelle Whetsel, and the ALJ issued an unfavorable decision on August 1, 2017. (Tr. 15-24). Vocational Expert (VE) Thomas A. Grzesik appeared at the hearing. (Tr. 15). The Appeals Council denied review on May 8, 2018, making the ALJ's decision the final decision of the Commissioner. (Tr. 1-3).

         Thembi D. meets the insured status requirement of the Social Security Act through December 31, 2020. (Tr. 17). At step one of the five-step sequential analysis for determining whether an individual is disabled, the ALJ found that Thembi D. had not engaged in substantial gainful activity since September 18, 2014, the alleged onset date. (Tr. 17).

         At step two, the ALJ determined that Thembi D. had the following severe impairments: residuals from left elbow surgery and residuals from a left elbow fracture. (Tr. 18). The ALJ found that both the medical records and Thembi D.'s testimony at the hearing established the existence of her severe impairments. (Tr. 18). The ALJ found that the severe impairments significantly limited Thembi D.'s ability to perform basic work activities. (Tr. 18).

         At step three, the ALJ concluded that Thembi D. did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. (Tr. 18). The ALJ considered the criteria for listing 1.02, major dysfunction of a joint. (Tr. 18). The ALJ concluded that the record did not indicate that Thembi D. experienced, or continued to experience, “gross anatomical deformity and chronic joint pain and stiffness with signs of limitation or other abnormal motion of the affected joint(s), ” and findings on imaging studies of joint narrowing, bony destruction, or ankylosis of the affected joint(s) with involvement of one major peripheral joint in each upper extremity (i.e., shoulder, elbow, or wrist-hand), resulting in inability to perform fine and gross movements effectively.” (Tr. 18). The ALJ noted that there was no medical evidence to propose a finding that Thembi D.'s impairments rose to the level of listing level severity. (Tr. 18).

         After consideration of the entire record, the ALJ then assessed Thembi D.'s residual functional capacity (RFC) as follows:

[T]he claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) with exceptions. Specifically, the claimant is able to lift and/or carry 10 pounds occasionally and up to 10 pounds frequently, stand and/or walk 2 hours in an 8-hour workday and sit 6 hours in an 8-hour workday. She is never to climb ladders, ropes or scaffolds. The claimant is occasionally able to use her left upper extremity to reach in all directions including overhead, and can frequently handle and finger bilaterally.

(Tr. 19). The ALJ explained that in considering Thembi B.'s symptoms, she followed a two-step process. (Tr. 19). First, she determined whether there was an underlying medically determinable physical or mental impairment that was shown by a medically acceptable clinical or laboratory diagnostic technique that reasonably could be expected to produce Thembi D.'s pain or other symptoms. (Tr. 19). Then she evaluated the intensity, persistence, and limiting effects of the symptoms to determine the extent to which they limited Thembi B.'s functioning. (Tr. 19).

         Thembi D. testified that she fell down a flight of stairs shattering her left elbow and causing her to have three surgeries. (Tr. 19). She stated that because of her left elbow fracture, she was unable to use her left arm and her pain affected her functioning. (Tr. 19). The ALJ noted that Thembi D. worked as a housekeeper and then babysat for children, ages 2 and 5. (Tr. 19). However, she stopped working at the end of 2016. (Tr. 19). Thembi D. indicated that occasionally she needed help getting dressed. (Tr. 20). Moreover, she did not complete chores and did not prepare meals. (Tr. 20). The ALJ found that Thembi D.'s medically determinable impairments reasonably could be expected to cause the alleged symptoms. (Tr. 20). However, her statements concerning the intensity, persistence, and limiting effects of her symptoms were not entirely consistent with the medical evidence and other evidence in the record. (Tr. 20). In sum, the ALJ concluded that Thembi D.'s impairments, though severe, did not preclude her from completing basic work-related activities. (Tr. 22).

         At step four, the ALJ concluded that Thembi D. was unable to perform any past relevant work. (Tr. 22). Considering Thembi D.'s age, education, work experience, and RFC, the ALJ determined that there were jobs in the national economy that she could perform, including a call out operator (33, 000 jobs nationally), surveillance systems monitor (85, 000 jobs nationally), and order clerk (90, 000 jobs nationally). (Tr. 23). The ALJ found that Thembi D. had not been under a disability, as defined in the Social Security Act, from September 18, 2014, through the date of this decision, August 1, 2017. (Tr. 23-24).


         The standard for judicial review of an ALJ's finding that a claimant is not disabled within the meaning of the Social Security Act is limited to a determination of whether those findings are supported by substantial evidence. 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security, as to any fact, if supported by substantial evidence, shall be conclusive.”); Moore v. Colvin, 743 F.3d 1118, 1120-21 (7th Cir. 2014); Bates v. Colvin, 736 F.3d 1093, 1097 (7th Cir. 2013) (“We will uphold the Commissioner's final decision if the ALJ applied the correct legal standards and supported her decision with substantial evidence.”). Courts have defined substantial evidence as “such relevant evidence as a reasonable mind might accept to support such a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 852 (1972) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed.2d 140 (1938)); see Bates, 736 F.3d at 1098. A court must affirm an ALJ's decision if the ALJ supported her findings with substantial evidence and ...

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