Opinion

Brown v. Commissioner of Social Security

Court
District Court, S.D. Illinois
Filed
Aug 17, 2020
Cited by
0 cases
Authority
More cited than 21.2%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

GRACE E. B.,1 )

)

Plaintiff, )

)

vs. ) Case No. 19-cv-1136-MAB2

)

COMMISSIONER of SOCIAL )

SECURITY, )

)

Defendant. )

MEMORANDUM AND ORDER

BEATTY, Magistrate Judge:

In accordance with 42 U.S.C. § 405(g), Plaintiff, represented by counsel, seeks

judicial review of the final agency decision denying her application for Disability

Insurance Benefits (DIB) and Supplemental Income Security (SSI) benefits pursuant to 42

U.S.C. § 423.

PROCEDURAL HISTORY

Plaintiff applied for disability benefits in May 2016, alleging disability as of

January 1, 2011. After holding an evidentiary hearing, an ALJ denied the application on

December 20, 2018. (Tr. 13-20). The Appeals Council denied review, and the decision of

the ALJ became the final agency decision. (Tr. 1). Administrative remedies have been

1 In keeping with the court’s practice, 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, Docs. 12 & 18.

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exhausted and a timely complaint was filed in this Court.

ISSUES RAISED BY PLAINTIFF

Plaintiff raises the following points:

1. The ALJ failed to properly evaluate Listing 11.09.

2. The ALJ failed to properly evaluate the RFC.

APPLICABLE LEGAL STANDARDS

To qualify for DIB or SSI, 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 three or step five leads to a finding that the

plaintiff is disabled. A negative answer at any step, other than at step three, precludes a

finding of disability. The plaintiff bears the burden of proof at steps one through four.

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Once the plaintiff shows an inability to perform past work, the burden then shifts to the

Commissioner to show that there are jobs existing in significant numbers in the national

economy which the plaintiff can perform. Zurawski v. Halter, 245 F.3d 881, 886 (7th Cir.

2001).

It is important to recognize that the scope of 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. He

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determined that Plaintiff engaged in substantial gainful activity from January 1, 2011 to

June 2, 2016. The ALJ determined there was a continuous 12-month period during which

Plaintiff did not engage in substantial gainful activity. She is insured for DIB through

December 31, 2022.

The ALJ found that Plaintiff had severe impairments of asthma; multiple sclerosis

(MS); and obesity.

The ALJ found that Plaintiff does not have an impairment or combination of

impairments that meets or medically equals the severity of one of the listed impairments

in 20 C.F.R. Part 404, Subpart P, Appendix 1.

The ALJ found that Plaintiff had the residual functional capacity (RFC) to

“perform light work…except: lift and carry 20 pounds occasionally and 10 pounds

frequently; stand/walk 6 hours in an 8-hour day; sit 6 hours in an 8-hour day; no

operation of foot controls; occasionally climb ramps and stairs; never climb ladders,

ropes, or scaffolds; must avoid exposure to hazards, odors, dust, fumes, poor ventilation,

and pulmonary irritants.”

Based on the testimony of a vocational expert, the ALJ concluded that Plaintiff is

able to perform past relevant work as a preschool teacher and security guard. The ALJ

did not evaluate Step 5.

THE EVIDENTIARY RECORD

The Court reviewed and considered the entire evidentiary record in preparing this

Memorandum and Order. The following summary of the record is directed to Plaintiff’s

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arguments.

1. Agency Forms

Plaintiff was born in 1984 and was 34 years old on the date of the ALJ’s decision.

(Tr. 200). Plaintiff said she stopped working in June 2016 because of her conditions. She

previously worked as a security guard from 2005 to 2013 and a preschool teacher from

2013 to 2016. (Tr. 219-20).

In a Function Report submitted in December 2015, Plaintiff said it hurts to walk,

stand, sit or bend for too long, and lifting more than ten pounds causes pain. Plaintiff said

her symptoms affect her ability to do housework and personal care, such as dressing,

bathing, and grooming. (Tr. 227-29). Plaintiff said her symptoms affect her lifting,

squatting, bending, standing, reaching, walking, sitting, kneeling, stair climbing, and task

completion. Plaintiff said she can only walk ten to fifteen minutes before needing to rest

for thirty to forty minutes. Plaintiff said her condition affects her memory. Plaintiff said

she was prescribed crutches in 2007 to use for support when in pain. (Tr. 232-33).

2. Evidentiary Hearing

Plaintiff was represented by an attorney at the evidentiary hearing in August 2018.

(Tr. 28).

Plaintiff said she stopped working as a preschool teacher in January 2018. She said

she had to miss work a lot due to her health, and that was part of the reason she was let

go. Plaintiff called off work anywhere from three to five days a month at minimum to ten

to fifteen days a month at maximum due to her MS flare-ups. Plaintiff said missing a day

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of MS medication causes flare-ups. (Tr. 31-34). Plaintiff said she has decreased feeling in

her legs, feet and hands, and that causes her to fall and trip. (Tr. 34-35, 37). When asked

how many flare-ups she would have while taking medication as prescribed, Plaintiff said

she would have a week-long flare-up in a month. Plaintiff testified to having issues with

doing housework and will sometimes get help from her mother with laundry and going

down steps. Plaintiff said her medications cause drowsiness and diarrhea. Plaintiff said

she does not like to go grocery shopping because it involves too much walking. (Tr. 36-

39). Plaintiff testified to having memory issues caused by her MS diagnosis, so she needs

reminders at times. (Tr. 46).

A vocational expert (VE) testified at the hearing. The ALJ presented hypotheticals

to the VE which corresponded to the ultimate RFC findings, and the VE testified that a

person with Plaintiff’s RFC could perform their past work of being a security guard and

preschool teacher. The ALJ asked the VE if an individual who had to miss more than two

days of work per month could maintain employment, and the VE said it would eliminate

past work and any other work. (Tr. 50-51).

3. Relevant Medical Records

Plaintiff presented to Barnes Jewish Hospital’s emergency department five times

between November 2011 and September 2016 reporting bilateral leg pain and burning;

numbness; back pain; focal sensory changes; weakness; unbalanced gait; pins in her

lower mid back; running out of pain medications; and no relief from Tramadol. (Tr. 312,

350, 352-53, 389, 834, 903, 967, 1081). Some physical examinations revealed normalcy,

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while others revealed a tender neck; tender bilateral calves; and muscle spasms. (Tr. 354,

389-90, 834, 903, 1023). Diagnoses and assessments included numbness; MS flare;

musculoskeletal pain; low back pain; and muscle spasms. (Tr. 336, 390, 904, 957). Plans

included medications, MRIs, bloodwork, and a neurology referral. (Tr. 390, 937). Plaintiff

was given work notes limiting her to working with restrictions, such as avoiding

prolonged standing and walking, lifting no more than ten pounds, and light duty work.

(Tr. 336, 905, 924, 957). Two of the emergency physicians that Plaintiff saw said her pain

was likely not MS-related nor a result of an MS exacerbation. (Tr. 904, 1062).

Plaintiff underwent an MRI of her brain, cervical spine, lumbar spine, and thoracic

spine on November 21, 2011, and the impression was, “1. New foci of T2 hyperintensity

in the anterior corpus callosum3 and right corona radiata4 without enhancement.

Additional lesions in the bilateral cerebral white matter and focus of subtle T2

hyperintensity at the T10-T11 level is unchanged since the prior. These lesions are

consistent with chronic demyelination5.” (Tr. 824, 826, 828, 830).

Plaintiff presented to Touchette Regional Hospital’s emergency department eight

times between April 2012 and August 2018. (Tr. 571, 583, 603, 695, 751, 779, 1111, 1451).

3 Corpus callosum refers to, “The arched bridge of nervous tissue that connects the two cerebral

hemispheres, allowing communication between the right and left sides of the brain.” https://medical-

dictionary.thefreedictionary.com/corpus+callosum, visited on August 17, 2020.

4 Corona radiata refers to, “A fan-shaped fiber mass on the white matter of the cerebral cortex, composed

of the widely radiating fibers of the internal capsule.” https://medical-

dictionary.thefreedictionary.com/corona+radiata, visited on August 17, 2020.

5 Demyelination refers to, “destruction, removal, or loss of the myelin sheath of a nerve or nerves.”

https://medical-dictionary.thefreedictionary.com/demyelination, visited on August 17, 2020.

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Plaintiff reported MS flare-ups; lethargy possibly due to medications; right side

numbness; right wrist pain; one month of intermittent right forearm pain without injury;

dizziness and vertigo; needing pain medications; needing a work note; leg, neck, and

back pain; tingling; weakness; and the Tramadol was ineffective. (Tr. 571, 583, 603, 608,

695, 722, 755, 757, 779, 1111, 1122-23, 1451). The physical examinations revealed

normality, and others revealed Plaintiff was somnolent; had a painful upper right

extremity; had grossly intact motor, sensory and coordination; had back tenderness and

decreased range of motion; had muscle spasms; had vertebral point tenderness; and had

cerebrovascular tenderness. (Tr. 571, 608, 725-28, 761, 785, 1128). Impressions included

lethargy, MS, medication side effects, and back pain. (Tr. 572, 609, 1132). Plans and

recommendations included medication management, a neurology follow-up, an

orthopedic referral, lab work, and physical therapy. (Tr. 571, 617, 731, 764, 789, 1131).

The impression of a wrist x-ray taken on December 29, 2013, was, “1. NO ACUTE

ABNORMALITY DEMONSTRATED.” (Tr. 605).

Plaintiff underwent a brain MRI on January 30, 2014. The impression was, “[a]t

least 20 to 25, including at least 5 new T2/FLAIR hyperintensities with one enhancing

lesion consistent with progression of multiple sclerosis.” (Tr. 378-79).

Plaintiff underwent a brain MRI on August 27, 2015, and the impression was,

“NORMAL BRAIN FOR AGE.” (Tr. 517).

Plaintiff presented to Miguel Granger, a family medicine doctor, on April 15, 2016,

complaining of multiple sclerosis. Plaintiff reported an MS flare-up. Plans included

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medication and a neurology follow-up. (Tr. 463).

Plaintiff presented to Jawad Khan, a family medicine doctor, on April 29, 2016,

reporting an MS flare-up. The assessment included MS and paresthesia, and plans

included medication; blood testing; and a work statement saying Plaintiff was not to lift,

push, or pull more than ten pounds. (Tr. 301).

Plaintiff presented to Dr. Khan on May 9, 2016, for lab results. Plaintiff started

Tecfidera and Tramadol. (Tr. 302).

Plaintiff underwent a brain and cervical spine MRI on May 21, 2016. (Tr. 372, 375).

The impression was, “Multiple punctate/ovoid white matter T2 hyperintensities

consistent with the patient’s known history of multiple sclerosis. There is decreased T2

signal with resolution of enhancement involving lesion in the right cerebellum. New

focus of enhancement is present in the left peritrigonal white matter. Otherwise,

T1/FLAIR hyperintense lesions are stable in size and number. No evidence of cervical

spine lesion.” (Tr. 373, 376).

Plaintiff presented to Heather Lucas-Foster, a family medicine physician, on May

25, 2016, reporting work restrictions due to MS. (Tr. 470).

Plaintiff presented to Vittal Chapa, a state agency medical consultant, for a

consultative examination on September 22, 2016. Plaintiff reported being diagnosed with

MS in 2007; problems with walking; burning sensations in her skin; numbness in her legs;

and having eight MS flare-ups a year. (Tr. 1105). A physical examination came back

normal. The diagnoses included MS. (Tr. 1107).

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Plaintiff underwent an x-ray of her lumbar spine on November 7, 2016, and the

impression was, “1. NO ACUTE OSSEOUS ABNORMALITIES. 2. SCOLIOSIS OF THE

THORACIC SPINE PARTIALLY VISUALIZED.” (Tr. 1118).

Plaintiff presented to Erik Musiek, a neurologist, on January 24, 2017, reporting

MS, worsening back pain, memory problems, more paresthesia over her face and legs,

urinary problems, fatigue, numbness, weakness, and pain. A physical exam revealed

decreased bilateral finger taps and mild vibration and pinprick loss in the lower

extremities. Dr. Musiek said Plaintiff’s memory problem and unspecific symptoms of

fatigue are most likely due to her untreated depression as opposed to MS. Plans included

medications. (Tr. 1240-43).

Plaintiff presented to Memorial Hospital’s emergency department on May 27,

2017, complaining of neck pain. (Tr. 1143). Plaintiff underwent a cervical spine x-ray, and

the impression was, “No acute osseous abnormality with early osteoarthritic changes.”

(Tr. 1156).

Plaintiff presented to Memorial Hospital’s emergency department on May 31,

2017, complaining of acute neck pain and degeneration of the intervertebral disc of the

cervical region. Plans included using an ice pack, considering chiropractic care or

massage therapy, doing gentle stretches, using Bio Freeze, considering NSAIDS, and

scheduling a physical therapy appointment. (Tr. 1158).

Plaintiff underwent an MRI on June 17, 2017. The impression was, “1. Multiple

intracranial and spinal white matter lesions compatible with multiple sclerosis. 2. New

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T2 Lesions: Two, one adjacent to left ventricular frontal horn and one in the left corona

radiata. 3. Enhancing Lesions: One in left corona radiata. 4. No demyelinating lesions in

the cervical spine. 5. Other significant findings: mild cerebellar ectopia.” 6 (Tr. 1268).

Plaintiff presented to Elie Ghoulam, a SLUCare physician, on July 13, 2017,

complaining of dissatisfaction with her primary care physician’s management of pain

control and MS flare-ups every four months where she feels flushed and loses sensation

in her legs which causes her to fall. (Tr. 1246, 1248). A physical exam revealed normalcy.

(Tr. 1249). The assessment included MS, and plans included medications. (Tr. 1247).

Plaintiff called SLUCare Medical Group on August 4, 2017, saying her ability to

work decreased due to the pain she experienced. (Tr. 1259).

Plaintiff presented to Francis Wade III, an internist, on October 19, 2017,

complaining of back pain and to fill out paperwork regarding her ability to work. (Tr.

1256). Plaintiff reported missing twenty-five days of work since January 2017 due to pain.

(Tr. 1268). A physical exam revealed no joint tenderness on palpation and 5/5 sensation

in her bilateral upper and lower extremities. Plans included working as a substitute

teacher as Plaintiff believed she could perform that job. (Tr. 1266-67).

Plaintiff presented to Memorial Hospital’s emergency department on January 25,

2018, complaining of a fall that caused a concussion and blunt head trauma. Plaintiff was

told to use Tylenol for pain; apply ice for swelling; and follow up with her primary care

6 Ectopia refers to, “Congenital displacement or malposition of any organ or part of the body.”

https://medical-dictionary.thefreedictionary.com/ectopia, visited on August 17, 2020.

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provider. (Tr. 1170).

Plaintiff spoke to Veronica Martinez, a registered nurse, on February 23, 2018,

reporting baseline numbness and weakness to her bilateral lower extremities due to MS

and increased pain that started a few weeks prior. Plaintiff said her MS doctor no longer

took Medicare so she needed a new referral. (Tr. 1310-11). A physical exam revealed no

joint tenderness to palpation and no focal neurologic deficits. Plans included medications,

a neurology referral, a pain clinic referral, finding a physical therapist that Plaintiff’s

insurance covered, and a primary care physician appointment. (Tr. 1319).

Plaintiff presented to Aunita Hill-Jones, an internist, on February 26, 2018,

reporting back pain related to her MS since several weeks prior; taking Tramadol more

often than prescribed to deal with the pain; and numbness and tingling in her bilateral

arms and legs. (Tr. 1317-18, 1321). A physical exam revealed 5/5 bilateral strength in the

upper and lower extremities; no focal neurologic deficits; and no tenderness. The

assessment included medications. (Tr. 1321).

Plaintiff presented to Dr. Ghoulam on March 22, 2018, for a follow-up. A physical

exam revealed no cervical tenderness; 4/5 strength in bilateral upper and lower

extremities; no focal neurologic deficits; and grossly intact sensation. The assessment

included chronic pain secondary to MS, and plans included medications and finding a

neurologist. (Tr. 1377-79).

Plaintiff presented to Alex Loveleena, a family medicine nurse practitioner, on

May 14, 2018, reporting unimproved MS symptoms while using Tecfidera, numbness,

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and chronic low back pain. A physical exam revealed normal ambulation, normal

movement of all extremities, and a normal gait. The assessment included MS and chronic

low back pain, and plans included medications, an x-ray, and a physical therapy referral.

(Tr. 1233-35). Plaintiff underwent a lumbar spine x-ray, and the impression was,

“Scoliotic curvature of the spine with congenital near complete fusion of the lower

thoracic spine with vertebral body segmentation anomaly T10.” (Tr. 1446).

Plaintiff presented to physical therapy seven times in June 2018 to address

abnormal posture, general weakness, MS, and a history of falling. (Tr. 1449, 1462-63, 1465-

68).

Plaintiff presented to NP Loveleena on June 5, 2018, reporting an inability to

exercise because of her MS; muscle aches; joint pain; and back pain. A physical exam

revealed normal movement of all extremities, low back tenderness, and a normal gait.

The assessment included MS, and plans included medications and a neurology referral.

(Tr. 1433).

Plaintiff presented to Cynthia Riewski, a licensed clinical social worker, on July 11,

2018, reporting anxiety and depression partially due to MS complications. Plaintiff

reported an inability to work because of falling and frequently pain, and she said she felt

like she is experiencing a slow death with MS. (Tr. 1426-28).

4. Dr. Charles Kenney’s Opinion

Dr. Kenney, a State agency medical consultant, noted Plaintiff could occasionally

lift and/or carry twenty pounds; frequently lift and/or carry ten pounds; stand and/or

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walk for about six hours in an eight-hour workday; sit for about six hours in an eight-

hour workday; and push and/or pull with lower extremity limitations. (Tr. 76). Dr.

Kenney stated, “[w]hen she has flare of the BLE she experiences loss of balance and

burning of BLE…CE with Dr. Chapa is [within normal limits] but documented flares with

disorganization of motor function…Risk of harm related to BLE disorganization of

function during flares.” (Tr. 77).

ANALYSIS

First, Plaintiff asserts the ALJ failed to properly evaluate Listing 11.09. The ALJ

said Plaintiff should have alleged that her impairments met or equaled the requirements

of Listing 11.09, but Plaintiff argues that the ALJ has an independent duty to apply the

relevant law, irrespective of Plaintiff’s knowledge of it.

A finding that a claimant’s condition meets or equals a listed impairment is a

finding that the claimant is presumptively disabled. The Listings are found at 20 C.F.R.

Pt. 404, Subpt. P, App. 1. In order to be found presumptively disabled, the claimant must

meet all of the criteria in the Listing; an impairment “cannot meet the criteria of a listing

based only on a diagnosis.” 20 C.F.R. §404.1525(d). The claimant bears the burden of

proving that she meets or equals a listed impairment. Filus v. Astrue, 694 F.3d 863, 868

(7th Cir. 2012); Maggard v. Apfel, 167 F.3d 376, 380 (7th Cir. 1999). An ALJ’s failure to

discuss a Listing does not warrant remand unless the Plaintiff demonstrates that she

meets the Listing. See Jeske v. Saul, 955 F.3d 583 (7th Cir. 2020).

The 11.00 series of the Listings covers neurological disorders. As is relevant here,

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Listing 11.09 includes:

11.09 Multiple sclerosis, characterized by A or B:

A. Disorganization of motor function in two extremities (see

11.00D1), resulting in an extreme limitation (see 11.00D2) in the ability to

stand up from a seated position, balance while standing or walking, or use

the upper extremities; or

B. Marked limitation (see 11.00G2) in physical functioning (see

11.00G3a), and in one of the following:

1. Understanding, remembering, or applying information (see

11.00G3b(i)); or

2. Interacting with others (see 11.00G3b(ii)); or

3. Concentrating, persisting, or maintaining pace (see 11.00G3b(iii));

or

4. Adapting or managing oneself (see 11.00G3b(iv)).

20 C.F.R. Pt. 404, Subpt. P, App. 1.

Plaintiff is incorrect in suggesting the ALJ has an independent duty to apply the

relevant law regarding a Listing whether or not Plaintiff suggests she meets that Listing.

Plaintiff bears the burden of proving if her impairments meet or equal a listed

impairment. Filus, 694 F.3d at 868. Plaintiff failed to do so here. Even if Plaintiff’s

argument was correct, the ALJ sufficiently engaged with the evidence and minimally

articulated himself as to whether Plaintiff met the Listing requirements.

The Seventh Circuit has “repeatedly held that although an ALJ does not need to

discuss every piece of evidence in the record, the ALJ may not analyze only the evidence

supporting her ultimate conclusion while ignoring the evidence that undermines it.”

Moore v. Colvin, 743 F.3d 1118, 1123 (7th Cir. 2014). Moreover, the ALJ must “engage

sufficiently” with the medical evidence. Stage v. Colvin, 812 F.3d 1121, 1125 (7th Cir. 2016).

The ALJ “need not provide a complete written evaluation of every piece of testimony and

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evidence.” Curvin v. Colvin, 778 F.3d 645, 651 (7th Cir. 2015) (citation and internal

quotations omitted). However, the ALJ’s discussion of the evidence must be sufficient to

“provide a ‘logical bridge’ between the evidence and his conclusions.” Terry v. Astrue,

580 F.3d 471, 475 (7th Cir. 2009)(internal citations omitted).

At Step 3, the ALJ said that Plaintiff did not meet the requirements of Listing 11.09

because “no treating or examining physician has documented findings equivalent in

severity to the criteria of any listed impairment, nor does the evidence show medical

findings that are the same or equivalent to those of any listed impairment…” (Tr. 17). The

ALJ also noted that Plaintiff did not allege that her impairments met or equaled a Listing.

(Tr. 17).

At Step 4, the ALJ furthered his discussion of the record evidence from Tr. 17 to

Tr. 19. The ALJ noted Plaintiff’s subjective allegations of her MS flares. The ALJ

acknowledged Plaintiff’s statements that the flare-ups happen up to one week out of the

month and cause numbness in her feet, legs, and hands. The ALJ also acknowledged that

Plaintiff said her MS causes trips and falls a couple times a month, memory problems,

and depression. (Tr. 17). The ALJ continued on at Tr. 18 and Tr. 19, noting further

subjective statements made by Plaintiff; MRI results that are consistent with MS; medical

opinions; physical examination results both normal and abnormal; and Plaintiff’s

insurance and medication history. Therefore, Plaintiff’s argument fails.

Plaintiff relies on Dr. Kenney’s medical opinion in which he said Plaintiff suffers

from “disorganization of motor function,” and she suggests that this further satisfies the

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Listing requirement. (Tr. 77). Plaintiff’s arguments are comprised of a host of

misunderstandings. This Court agrees with Defendant that Plaintiff’s argument ignores

the context in which Dr. Kenney gave his opinion. Dr. Kenney’s statement does not

establish that Plaintiff has the degree of disorganization as required by the Listing. Dr.

Kenney stated Plaintiff’s flare-ups cause disorganization of motor function yet went on

to suggest that Plaintiff could do light work. This does not indicate Dr. Kenney believed

Plaintiff is disabled. Dr. Kenney is a state agency consultant, and those individuals are

familiar with the Listings. With that said, Dr. Kenney would not have rated Plaintiff as

able to do light work if he thought she met a Listing.

Plaintiff suggests that more analysis from a medical professional and the ALJ as to

whether Plaintiff meets or equals Listing 11.09 is required since Dr. Kenney did not

document whether he evaluated any Listings. For the reasons set forth above, Plaintiff is

incorrect.

For her second issue, Plaintiff argues the ALJ failed to properly evaluate RFC.

Plaintiff goes on to suggest that the RFC was wrong because it was based off Dr. Kenney’s

medical opinion. Plaintiff also argues the ALJ failed to evaluate the duration and

frequency of Plaintiff’s MS flare-ups. However, for the reasons set forth above, these

arguments fail.

Lastly, Plaintiff points to the VE testimony arguing that the ALJ failed to determine

whether Plaintiff would miss work on a consistent-enough basis that would prevent her

from sustaining employment.

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At the evidentiary hearing, the ALJ asked the VE if an individual who had to miss

more than two days of work per month could maintain employment, and the VE said it

would eliminate past work and any other work. (Tr. 50). Plaintiff’s attorney asked the VE

what an employer would tolerate if an individual was off task due to deprived sleep,

medication side effects, or symptoms of their impairments. The VE said usually

employers only tolerate off-task behavior that happens less than ten percent of the time,

but it varies by employer. (Tr. 51).

Being off-task due to medications, symptoms, and other things secondary to

impairments can impact whether a person would be able to work a full eight-hour

workday. Also, it is true that there were some objective medical records in which medical

professionals commented on Plaintiff’s MS impairment and symptoms. However, the

ALJ addressed Plaintiff’s MS impairment including both the objective and subjective

evidence. The ALJ explained at Tr. 17 and 18 that “the claimant’s statements concerning

the intensity, persistence and limiting effects of those symptoms are not entirely

consistent with the medical evidence and other evidence in the record,” and continued in

explaining his reasoning as mentioned above in Plaintiff’s first issue. Additionally, the

ALJ noted that Dr. Musiek found no indication of memory problems at Tr. 18.

The crux of Plaintiff’s argument involves her subjective statements as opposed to

objective findings. This, in combination with the ALJ’s decision and the VE testimony

that Plaintiff is able perform her past work, further exacerbates Plaintiff’s failure to carry

her burden of showing that she is unable to do her past work. Therefore, Plaintiff’s

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argument fails.

Plaintiff’s arguments are little more than an invitation for this Court to reweigh

the evidence. She has not identified a sufficient reason to overturn the ALJ’s conclusion.

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).

CONCLUSION

After careful review of the record as a whole, the Court is convinced that the ALJ

committed no errors of law, and that his findings are supported by substantial evidence.

Accordingly, the final decision of the Commissioner of Social Security denying Plaintiff’s

application for disability benefits is AFFIRMED.

The Clerk of Court is directed to enter judgment in favor of Defendant.

IT IS SO ORDERED.

DATED: August 17, 2020

/s/ Mark A. Beatty

MARK A. BEATTY

United States Magistrate Judge

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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