United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
P. Rodovich United States Magistrate Judge
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.
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).
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).
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).
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.
consideration of the entire record, the ALJ then assessed
Thembi D.'s residual functional capacity (RFC) as
[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).
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.
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).
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