Joe R. v. Berryhill

363 F.Supp.3d 876

JOE R., Plaintiff,

v.Nancy A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

No. 17 C 6169

United States District Court, N.D. Illinois, Eastern Division.

Signed March 29, 2019

Barry Alan Schultz, Law Offices of Barry A. Schultz, Evanston, IL, for Plaintiff.

Kathleen Marie Flannery, SSA, AUSA, U.S. Attorney's Office, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

JEFFREY COLE, UNITED STATES MAGISTRATE JUDGE

Plaintiff applied for Disability Insurance Benefits ("DIB") and Disabled Widower's Benefits under Title II of the Social Security Act ("Act"), 42 U.S.C. §§ 416(i), 423, over five years ago. (Administrative Record (R.) 190-94).¹ He claimed that he became disabled as of January 1, 2008 (R. 190), due to hereditary left leg syndrome and blood clots in leg and lungs. (R. 213). Over the next few years, plaintiff's application was denied at every level of administrative review: initial, reconsideration, administrative law judge (ALJ), and appeals council. It is the ALJ's decision that is before the court for review. See 20 C.F.R. §§ 404.955 ; 404.981.

Plaintiff filed suit under 42 U.S.C. § 405(g), and the parties consented to the jurisdiction of a Magistrate Judge on October 13, 2017. [Dkt. # 8]. The case was reassigned initially to another Magistrate Judge. It was only recently reassigned to me on January 10, 2019. [Dkt. # 30]. Plaintiff asks the court to reverse and remand the Commissioner's decision, while the Commissioner seeks an order affirming the decision.

I.

Plaintiff was 54 years old at the time of the ALJ's decision. (R. 32, 190). He worked steadily from 1983 through 2003 (R.219), most recently as a maintenance man for a church. (R. 219). That job involved lifting and carrying no more than 10 pounds, and an hour each of walking, standing, sitting, climbing, stooping and crawling. (R. 220). His previous job, as a city sanitation worker, was more strenuous, requiring him to lift up to 20 pounds and stand and walk all day. (R. 221). Earlier in his tenure in that position, he had to lift over 50 pounds with a co-worker. (R. 222). Plaintiff last worked in 2007 when the church maintenance job was phased out. (R. 57).

The medical record in this case is a little over 200 pages – relatively small, as these case go. (R. 268-479). Very little of it is pertinent. Indeed, Plaintiff's brief cites just 10 pages of it. [Dkt. # 18, at 3, 5]. Moreover, the evidence he is pointing to only dates back to October of 2012, and the more significant findings are from the July 2013 and later periods. [Dkt. # 18, at 2]. That makes things difficult for plaintiff to establish that he was disabled before the expiration of his insured status on December 31, 2012 (R. 27) – and of course the burden is his. Shideler v. Astrue , 688 F.3d 306, 311 (7th Cir. 2012).

After an administrative hearing – at which plaintiff, represented by counsel, and a vocational expert testified – the ALJ determined he was not disabled. The ALJ found that plaintiff's medically determinable impairments – "pulmonary embolism in 2012 and left hip osteoarthritis obliterated in 2013" – were not severe prior to the expiration of plaintiff's insured status. (R. 28).

In the ALJ's summarization of the medical evidence, she reviewed the records of plaintiff's trips to the clinic in 2009 and 2010. Significantly, the plaintiff denied any health issues at those visits and, aside from a "waddling gait" from an old leg injury, examinations were normal. It was not until October of 2012 that plaintiff began to experience pain in the right side of his chest. This was due to a pulmonary embolism, which was treated. By the next visit in November 2012, the findings were normal. They remained normal through the next summer, and Coumadin was discontinued. In July 2013, however, an x-ray of plaintiff's left hip showed advanced osteoarthritis in left hip. He was limping and had a decreased range of motion. (R. 29-30).

The ALJ correctly noted that there was very little medical evidence prior to the expiration of plaintiff's insured status. She acknowledged that plaintiff had no health insurance but, even so, when he went to the free clinic he had no complaints, had normal exams and sought no treatment. His pulmonary embolism, which occurred while he was insured, resolved in fewer than 12 months. (R. 30). The ALJ noted that plaintiff testified that he did not stop working due to any impairment, but because his job was phased out. He said he did not seek employment after that because he was taking care of his daughter. (R. 29, 30). He cooked, did household chores, and drove. (R. 29, 30). In the end, the ALJ concluded that plaintiff's allegations that his symptoms were disabling prior to December 31, 2012, were "not entirely consistent with the medical evidence and other evidence in the record ...." (R. 30). That conclusion was then explained by the ALJ.

The ALJ considered the reports of the state agency physicians who reviewed the record and found the evidence did not establish a severe impairment prior to the date last insured. She found these opinions to be supported by the record. (R. 31). But, the ALJ found the opinion of Dr. Barry that plaintiff should be found disabled so, as Dr. Barry said, he could obtain health insurance and a hip replacement. That request – for that is what it was – was entitled to no weight. There was nothing in the Opinion dealing with plaintiff's condition prior to the expiration of his insured status, and need for health insurance was not the dispositive factor for a finding of disability. (R. 31). In the end, the ALJ concluded that plaintiff had failed to prove he was disabled before his insurance expired and was, therefore not entitled to benefits under the Act. (R. 31).

II.

If the ALJ's decision is supported by substantial evidence, the court on judicial review must uphold that decision even if the court might have decided the case differently in the first instance. See 42 U.S.C. § 405(g). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales , 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) ; Beardsley v. Colvin , 758 F.3d 834, 836 (7th Cir. 2014). To determine whether substantial evidence exists, the court reviews the record as a whole but does not attempt to substitute its judgment for the ALJ's by reweighing the evidence, resolving material conflicts, or reconsidering facts or the credibility of witnesses. Beardsley , 758 F.3d at 837. "Where conflicting evidence allows reasonable minds to differ as to whether a claimant is entitled to benefits," the court must defer to the Commissioner's resolution of that conflict. Schloesser v. Berryhill , 870 F.3d 712, 717 (7th Cir. 2017) ; Binion v. Chater , 108 F.3d 780, 782 (7th Cir.1997).

But, in the Seventh Circuit, the ALJ also has an obligation to build an accurate and "logical bridge" between the evidence and the result in order to afford the claimant meaningful judicial review of the administrative findings. Varga v. Colvin , 794 F.3d 809, 813 (7th Cir. 2015) ; O'Connor–Spinner v. Astrue , 627 F.3d 614, 618 (7th Cir.2010). The court has to be able to trace the path of the ALJ's reasoning from evidence to conclusion. Minnick v. Colvin , 775 F.3d 929, 938 (7th Cir. 2015) ; Jelinek v. Astrue , 662 F.3d 805, 812 (7th Cir. 2011). Even if the court agrees with the ultimate result, the case must be remanded if the ALJ fails in his or her obligation to build that logical bridge. Sarchet v. Chater , 78 F.3d 305, 307 (7th Cir. 1996) ("... we cannot uphold a decision by an administrative agency, any more than we can uphold a decision by a district court, if, while there is enough evidence in the record to support the decision, the reasons given by the trier of fact do not build an accurate and logical bridge between the evidence and the result."); see also Spiva v. Astrue , 628 F.3d 346, 353 (7th Cir. 2010) ("The government seems to think that if it can find enough evidence in the record to establish that the administrative law judge might have reached the same result had she considered all the evidence and evaluated it as the government's brief does, it is a case of harmless error. But the fact that the administrative law judge, had she considered the entire record, might have reached the same result does not prove that her failure to consider the evidence was harmless. Had she considered it carefully, she might well have reached a different conclusion."). On the other hand, the Seventh circuit has also said that the logical bridge requirement is a "lax" one. Elder v. Astrue , 529 F.3d 408, 415 (7th Cir. 2008) ; Berger v. Astrue , 516 F.3d 539, 545 (7th Cir. 2008). For a further discussion of the logical bridge requirement, see King v. Berryhill , 2018 WL 6179092 (N.D.Ill. 2018).

III.

As already explained, the ALJ determined that plaintiff was not disabled because he had not proven he had a severe impairment before the expiration of his insured status.² Impairments are not "severe" when they do not significantly limit the claimant's ability to perform basic work activities, including "walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling."

20 C.F.R. § 404.1521 ; Thomas v. Colvin , 826 F.3d 953, 960 (7th Cir. 2016). The Agency has specified further that a non-severe impairment is "a slight abnormality (or combination of slight abnormalities) that has no more than a minimal effect on the ability to do basic work activities." SSR 96–3p, 1996 WL 374181, at *1 (July 2, 1996) ; Meuser v. Colvin , 838 F.3d 905, 910 (7th Cir. 2016). When evaluating the severity of an impairment, the ALJ assesses its functionally limiting effects by evaluating the objective medical evidence and the claimant's statements and other evidence regarding the intensity, persistence, and limiting effects of the symptoms. Id. at *2. The Seventh Circuit has characterized the Step 2 inquiry as...