The opinion
YOLANDA C. B.,1 )
)
Plaintiff, )
)
vs. ) Civil No. 17-cv-1201-DGW2
)
COMMISSIONER OF SOCIAL )
SECURITY, )
)
Defendant. )
MEMORANDUM and ORDER
WILKERSON, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), the pro se plaintiff seeks judicial
review of the final agency decision denying her application for Disability Insurance
Benefits (DIB) pursuant to 42 U.S.C. § 423.
Procedural History
Plaintiff applied for DIB in January 2014, alleging a disability onset date of
November 11, 2013. After holding an evidentiary hearing, an ALJ denied the
application on November 2, 2016. (Tr. 18-25). The Appeals Council denied
plaintiff’s request for review, making the ALJ’s decision the final agency decision
subject to judicial review. (Tr. 1). Plaintiff exhausted administrative remedies
and filed a timely complaint with this Court.
1 Plaintiff’s full name will not be used in this Memorandum and Order due to privacy concerns.
See, Fed. R. Civ. P. 5.2(c) and the Advisory Committee Notes thereto.
2 This case was assigned to the undersigned for final disposition upon consent of the parties
pursuant to 28 U.S.C. §636(c). See, Doc. 21.
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Plaintiff filed a short brief at Doc. 34. She asserts generally that she meets
“the basic standards for disability as explained under the Social Security Act.” She
also asserts, without elaboration, that she has been denied due process as well as
legal representation.3
Applicable Legal Standards
To qualify for DIB, a claimant must be disabled within the meaning of the
applicable statutes. Under the Social Security Act, a person is disabled if she has
an “inability 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).
To determine whether a plaintiff is disabled, the ALJ considers the following
five questions in order: (1) Is the plaintiff presently unemployed? (2) Does the
plaintiff have a severe impairment? (3) Does the impairment meet or medically
equal one of a list of specific impairments enumerated in the regulations? (4) Is the
plaintiff unable to perform her former occupation? and (5) Is the plaintiff unable to
perform any other work? 20 C.F.R. § 404.1520.
An affirmative answer at either step 3 or step 5 leads to a finding that the
plaintiff is disabled. A negative answer at any step, other than at step 3, precludes
a finding of disability. The plaintiff bears the burden of proof at steps 1–4. Once
the plaintiff shows an inability to perform past work, the burden then shifts to the
3 Plaintiff is pro se here, but she was represented by counsel at the agency level.
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significant numbers in the national economy. , 245 F.3d 881,
886 (7th Cir. 2001).
It is important to recognize that the scope of judicial review is limited. “The
findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive. . . .” 42 U.S.C. § 405(g). Thus, this Court
must determine not whether plaintiff was, in fact, disabled at the relevant time, but
whether the ALJ’s findings were supported by substantial evidence and whether
any errors of law were made. Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539
(7th Cir. 2003). The Supreme Court defines substantial evidence as “such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (internal citations
omitted).
In reviewing for “substantial evidence,” the entire administrative record is
taken into consideration, but this Court does not reweigh evidence, resolve
conflicts, decide questions of credibility, or substitute its own judgment for that of
the ALJ. Burmester v. Berryhill, 920 F.3d 507, 510 (7th Cir. 2019). However,
while judicial review is deferential, it is not abject; this Court does not act as a
rubber stamp for the Commissioner. See, Parker v. Astrue, 597 F.3d 920, 921
(7th Cir. 2010), and cases cited therein.
The Decision of the ALJ
The ALJ followed the five-step analytical framework described above. She
determined that plaintiff had not worked at the level of substantial gainful activity
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The ALJ found that plaintiff had severe impairments of peripheral neuropathy,
degenerative disc disease/right L5 radiculopathy, right shoulder osteoarthritis, and
hypertension.
In the statement of RFC at Tr. 21, the ALJ found that plaintiff had the RFC
to do light work, limited to no operation of foot controls; no climbing of ladders,
ropes, or scaffolds; no crawling; only occasional climbing of ramps and stairs; only
occasional balancing, stooping, kneeling, and crouching; no work at unprotected
heights or around hazardous machinery; and occasional exposure to pulmonary
irritants. She needed a cane to move about workplace.
Although the summary of the RFC at Tr. 21 referred to light exertion work,
the decision as a whole makes is clear that the ALJ actually limited plaintiff to
sedentary work. The ALJ gave “great weight” to the opinions of the state agency
consultants who limited her to sedentary work, and the hypothetical question posed
to the VE limited her to sedentary work as well. (Tr. 22, 53).
Based on the testimony of a vocational expert, the ALJ found that plaintiff
was not able to do her past relevant work as a desk clerk or school bus driver, but
she was not disabled because she was able to do other jobs at the sedentary level
that exist in significant numbers in the national economy.
The Evidentiary Record
The Court has reviewed and considered the entire evidentiary record in
formulating this Memorandum and Order. The following summary of the record
is directed to the points raised by plaintiff.
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Plaintiff was born in 1974 and was 40 years old on the date last insured.
(Tr. 178). She said she was disabled because of depression, peripheral
neuropathy, constant pain in her legs, feet, and thighs, falls while walking and
standing, uncontrollable vomiting and nausea, and high blood pressure. She
stopped working in June 2013 because she had three “stomach surgeries.” She
completed one year of college and a trade school program. (Tr. 181-182).
2. Evidentiary Hearing
Plaintiff was represented by an attorney at the hearing in August 2016. (Tr.
33).
Plaintiff’s twelve-year-old son lived with her, and she had custody of her
sixteen-year-old daughter for half the year. She also had a twenty-one-year-old
son. She had been on Medicaid since her children were born. (Tr. 35-37).
Plaintiff testified that she could not work because she had pain in her neck
from C7 down to both hands, pain in her low back, numbness and tingling and
throbbing, and she lost her balance “constantly.” She took ‘lots” of medication
which made her dizzy and drowsy. (Tr. 40-42). She used a cane every day
because she was a fall risk. (Tr. 46).
She had some abdominal surgeries for polyps in her stomach, uterine
fibroids, and gallbladder removal. The first surgery was in February 2013. (Tr.
37). She still had abdominal pain. (Tr. 50).
Plaintiff said she did not do much on a daily basis. She stayed in bed a lot.
Her children did the household chores. (Tr. 44-46). She was depressed, which
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A vocational expert (VE) also testified. The ALJ asked her a hypothetical
question that comported with the RFC assessment set forth at Tr. 21, except that
the ALJ asked the VE to assume a limitation to sedentary work. The VE testified
that a person with this RFC assessment could not do plaintiff’s past work, but she
could do other jobs at the sedentary exertional level. The sedentary jobs she
identified (document scanner, circuit board assembler, and packager) were simple,
routine, repetitive jobs and did not require interaction with the public. (Tr. 53-
54).
3. Relevant Medical Records
Plaintiff had surgery to remove uterine fibroids in February 2013. (Tr. 553).
Her gallbladder was removed in June 2013, and her doctor said she “recovered
well.” (Tr. 555).
In September 2013, an MRI of the lumbar spine showed no disc herniation
or stenosis. In April 2014, an x-ray of the right shoulder showed mild
osteoarthritis. In July 2014, cervical x-rays were normal. (Tr. 502-505).
In August 2013, plaintiff’s primary care provider, Dr. Mannan-Hilaly, saw her
for numbness in her feet and nausea. Musculoskeletal exam was normal. (Tr.
525-526). The doctor diagnosed peripheral neuropathy in November 2013. (Tr.
523-524). At visits through February 2015, the doctor noted normal
musculoskeletal exams except for one visit where her gait was slow secondary to
pain and a note that she used a cane. (Tr. 511-526).
Dr. Mannan-Hilaly referred plaintiff to Dr. Du, a pain management specialist.
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right leg. On exam, the range of motion of the right shoulder was slightly limited
due to pain. There was tenderness at L5-S1and in the bilateral SI joints. EMG
showed right radiculopathy. Lumbar MRI did not demonstrate disc herniation or
spinal canal stenosis. Dr. Du administered steroid injections in the low back and
right shoulder. Plaintiff reported improvement in June 2014. In July 2014, Dr.
Du noted that she had no tenderness in the cervical spine. Range of motion in the
lumbar spine was increased and straight leg raising was negative. Sensation,
strength, deep tendon reflexes, and gait were all normal. Right shoulder motion
was normal except for limited abduction. Two weeks later, she complained of neck
pain. Gait was again normal, as were sensation, strength, and deep tendon
reflexes. (Tr. 422-440).
In August 2014, Dr. Adrien Feinerman did a consultative exam. Plaintiff
had a cane and said she was unable to walk or stand without it. She said she had
pain in her low back and right shoulder, but she was able to do fine and gross
manipulations without difficulty. Exam showed normal range of motion of the
neck and limited range of motion of the lumbar spine and right shoulder. Motor
strength was normal throughout. Fine and gross manipulations were normal.
Sensory exam was normal. She would not stand or walk without her cane. (Tr.
456-467).
Plaintiff was seen by a neurologist at Washington University School of
Medicine in August 2014. Exam showed normal muscle strength except for some
give way weakness of the right deltoid and triceps related to right shoulder pain.
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Proprioception (perception or awareness of the position and movement of the body)
was preserved. Her gait was antalgic. The doctor thought her symptoms were
related to small fiber neuropathy. He increased the dosage of Gabapentin. (Tr.
852-854). A skin biopsy was done in March 2015 because of complaints of
burning pain in the hand and foot. The result substantiated small fiber
neuropathy. (Tr. 848-849). The dosage of Gabapentin was again increased. (Tr.
842).
Plaintiff was admitted to the hospital for a hysterectomy in April 2015. She
had “the expected postoperative abdominal pain.” Dr. Mannan-Hilaly examined
her. The examination was unremarkable. (Tr. 678).
Plaintiff was last insured for DIB as of June 30, 2015.
She was evaluated in the Neurology Clinic at St. Louis University Hospital in
November 2015 for neuropathy. On exam, sensation was intact to light touch and
pinprick in all four extremities. Motor strength was full. Her gait was normal,
and she was able to heel and toe walk without difficulty. Tandem walking was
stable. Romberg stance and test were stable. (Tr. 813-817).
4. State Agency Consultants
Two state agency consultants assessed plaintiff’s RFC based on a review of
the record. These reviews were done in August 2014 and May 2015. (Tr. 61-63,
75-77). Both concluded that she was capable of a limited range of sedentary work.
Analysis
The ALJ reasonably concluded that the record supports a conclusion that
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Plaintiff does not offer any specific challenge to that conclusion beyond asserting
that she meets the basic standards for disability.
The ALJ fairly summarized the relevant medical evidence. The ALJ’s
assessment of plaintiff’s RFC was supported by the opinion of two state agency
consultants. It is proper for the ALJ to rely upon the assessment of a state agency
consultant. Schmidt v. Barnhart, 395 F.3d 737, 745 (7th Cir. 2005); Cass v.
Shalala, 8 F.3d 552, 555 (7th Cir. 1993). “State agency medical and psychological
consultants are highly qualified physicians and psychologists who are experts in
the evaluation of the medical issues in disability claims under the Act.” SSR 96-
6p, 1996 WL 374180, at *2.
The ALJ properly rejected the opinion of Dr. Mannan-Hilaly that plaintiff
could not do even sedentary work. She rejected this opinion because it conflicted
with the doctor’s own treatment notes and because the doctor assigned deficits that
plaintiff did not even complain of. Dr. Mannan-Hilaly treated plaintiff, but the ALJ
was not required to fully credit the opinion because of that status; “while the
treating physician’s opinion is important, it is not the final word on a claimant’s
disability.” Books v. Chater, 91 F.3d 972, 979 (7th Cir. 1996) (internal citation
omitted). A treating source’s medical opinion is entitled to controlling weight only
where it is supported by medical findings and is not inconsistent with other
substantial evidence in the record. Brown v. Colvin, 845 F.3d 247, 252 (7th Cir.
2016), citing Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir. 2000). The ALJ is
required only to “minimally articulate” her reasons for accepting or rejecting
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, 516 F.3d 539, 545 (7th Cir. 2008); , 529 F.3d 408, 415
(7th Cir. 2008). The ALJ easily met the minimal articulation standard here.
The Court has carefully reviewed the record and the ALJ’s decision and has
not detected any legal errors. The medical evidence and the state agency
consultants’ opinions support the conclusion that plaintiff was capable of doing
some sedentary jobs as of her date last insured. Even if reasonable minds could
differ as to whether plaintiff was disabled at the relevant time, the ALJ’s decision
must be affirmed if it is supported by substantial evidence, and the Court cannot
substitute its judgment for that of the ALJ in reviewing for substantial evidence.
Burmester, 920 F.3d at 510; Shideler v. Astrue, 688 F.3d 306, 310 (7th Cir. 2012).
Plaintiff also asserts that she has been denied due process.
A person who applies for social security disability benefits has the right to a
hearing before a fair decisionmaker. Keith v. Barnhart, 473 F.3d 782, 787–88
(7th Cir. 2007). That right is violated where “the decisionmaker displayed deep-
seated and unequivocal antagonism that would render fair judgment impossible.”
Spicher v. Berryhill, 898 F.3d 754, 756 (7th Cir. 2018) (internal quotation marks
and citations omitted). There is no indication that the ALJ in this case displayed
such antagonism or was in any way unfair to plaintiff.
Lastly, plaintiff complains that she was denied legal representation. As the
Court explained in its order denying her motion for appointment of counsel, she
has no statutory or constitutional right to counsel here, she did not demonstrate
that she made a diligent attempt to obtain counsel on her own, and there was
10
ERERE MERE CRB NEE ER BRINE ALE CEREAL □□□ REI BIE TEUDY PERLE AIT Rade.
see, Doc. 12.
Conclusion
After careful review of the record as a whole, the Court is convinced that the
ALJ committed no errors of law, and that her findings are supported by substantial
evidence. Accordingly, the final decision of the Commissioner of Social Security
denying plaintiffs application for disability benefits is AFFIRMED.
The Clerk of Court is directed to enter judgment in favor of defendant.
IT IS SO ORDERED.
DATE: February 21, 2020.
DONALD G. WILKERSON
U.S. MAGISTRATE JUDGE
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