The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TABITHA R. C. 1,
Plaintiff,
v. Case No. 20-cv-723-SPM
COMMISSIONER of
SOCIAL SECURITY,
Defendant.
MEMORANDUM AND ORDER
McGLYNN, District Judge:
In accordance with 42 U.S.C. § 405(g), Plaintiff 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 and 42
U.S.C. §§ 1382 and 1382c, respectively2.
PROCEDURAL HISTORY
Plaintiff applied for DIB and SSI on October 2, 2017, alleging a disability onset
date of February 3, 2017. (Tr. 241, 243). After holding an evidentiary hearing, an ALJ
denied the application on December 3, 2019. (Tr. 11-26). The Appeals Council denied
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 The statutes and regulations pertaining to DIB are found at 42 U.S.C. § 423, et seq., and 20 C.F.R.
pt. 404. The statutes and regulations pertaining to SSI are found at 42 U.S.C. §§ 1382 and 1382c, et
seq., and 20 C.F.R. pt 416. As is relevant to this case, the DIB and SSI statutes and regulations are
identical. Furthermore, 20 C.F.R. § 416.925 detailing medical considerations relevant to an SSI claim
relies on 20 C.F.R. Pt. 404, Subpt. P, the DIB regulations. Most citations herein are to the DIB
regulations out of convenience.
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Plaintiff’s request for review on June 11, 2020, making the ALJ’s decision the final
agency decision subject to judicial review. (Tr. 1-4). Plaintiff exhausted
administrative remedies and filed a timely complaint with this Court.
ISSUES RAISED BY PLAINTIFF
Plaintiff raises the following points:
1. Defendant failed to meet its burden at Step 5 of the sequential
evaluation.
2. The ALJ failed to properly evaluate the effects of a structured setting on
residual functional capacity (“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 he 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 claimant is disabled, the ALJ considers the following
five questions in order: (1) Is the claimant presently unemployed? (2) Does the
claimant 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 claimant
unable to perform her former occupation? and (5) Is the claimant unable to perform
any other work? 20 C.F.R. § 404.1520.
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An affirmative answer at either step 3 or step 5 leads to a finding that the
claimant is disabled. A negative answer at any step, other than at step 3, precludes
a finding of disability. The claimant bears the burden of proof at steps 1–4. Once the
claimant shows an inability to perform past work, the burden then shifts to the
Commissioner to show the claimant’s ability to engage in other work existing in
significant numbers in the national economy. Zurawski v. Halter, 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).
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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
since the alleged onset date of February 3, 2017. She was insured for DIB through
September 30, 2019. Plaintiff was born on October 8, 1971 and was 45 years old on
the alleged date of disability, which is defined as a younger individual age 45-49.
The ALJ found that plaintiff had the following severe impairments: bipolar
disorder, major depressive disorder, anxiety disorder, personality disorder, post-
traumatic stress disorder (PTSD), polysubstance dependence in current remission
(methamphetamines, alcohol, and cannabis), chronic obstructive pulmonary disease
(COPD), degenerative disc disease and facet arthropathy, and obesity with BMI or
29-39. The ALJ further found that plaintiff did not have an impairment or
combination of impairments that meets or medically exceeds the severity of one of
the listed impairments.
The ALJ found that Plaintiff had the RFC to perform light work as defined in
20 CFR 404.1567(b) and 416.967(b) with some physical limitations in that she can
never climb ladders, ropes, or scaffolds or be exposed to unprotected heights or
hazardous work environments. She should also avoid concentrated exposure to
extreme heat, extreme cold, dust, fumes, chemicals, and other pulmonary irritants.
The ALJ found that Plaintiff was unable to perform any past relevant work
and found that she had a limited education and was able to communicate in English.
The ALJ also found that there are jobs that exist in significant numbers in the
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national economy that the plaintiff can perform, considering her age, education, work
experience, and residual functional capacity.
The ALJ found that transferability of job skills is not material to the
determination of disability because using the Medical-Vocational Rules as a
framework supports a finding that the plaintiff is “not disabled”, whether or not she
has transferable job skills. The ALJ also found that plaintiff was not under a
disability from February 3, 2017 through the date of her decision.
THE EVIDENTIARY RECORD
The Court has reviewed and considered the entire evidentiary record in
formulating this Memorandum and Order. The Court finds that the ALJ’s summary
of the record in her decision, when compared to the points raised by Plaintiff, is
sufficiently comprehensive and, therefore, there is no need to summarize it again
here.
ANALYSIS
I. Step 5 of the Sequential Analysis
Plaintiff first argues that the ALJ erred at step five in finding that the claimant
was capable of performing work in the national economy. The fifth step in the
disability analysis framework focuses only on the types of work that the claimant can
perform, not the positions the claimant is precluded from working. see also
Weatherbee v. Astrue, 649 F.3d 565, 569 (7th Cir.2011).
The ALJ properly performed the sequential analysis, including step 5, where,
for the first time, the burden of proof shifted to the Commissioner to establish that
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jobs existed in the national economy that plaintiff could perform despite the
limitations reflected in her RFC. See 20 C.F.R. § 416.920(a) (4)(v). The Commissioner
only needs to prove that jobs existed at that time; the commissioner need not
guarantee that Plaintiff be employed in one of those jobs.
In determining step 5 of the sequential analysis, the ALJ solicited the opinion
of a vocational expert and sought testimony from the VE based upon the following
hypothetical:
“I would ask you to assume a hypothetical individual of the claims age,
education, and work history, who is capable of working at the light
exertional level. She can never climb ladders, ropes, or scaffolds, be
exposed to unprotected heights, or hazardous work environments.
Would be limited to remembering and carrying out simple routine tasks,
and making simple work-related decisions. Cannot perform production
paced tasks with strict hourly goals. May have frequent contact with
supervisors, and brief incidental contact with co-workers and the
general public. The hypothetical individual would need to avoid
concentrated exposure to dust, fumes, chemicals, and other pulmonary
irritants. And, the hypothetical individual would be off task 5 percent of
the workday. I’m also going to add that the hypothetical individual
needs to avoid concentrated exposure to extreme heat and extreme cold.”
(Tr. 62-63)
In response, the VE testified as to other work in the national economy that
meets the hypothetical and stated three occupations, each of which were “light,
unskilled, with SVP of two.” (Tr. 63).
Although plaintiff argues that a claimant limited to simple, routine tasks did
not have the mental capacity to perform occupations defined in the DOT as Reasoning
Level 2 and 3, recent case law disproves her contention. See Surprise v. Saul, 968
F.3d 658 (7th Cir. 2020). In Surprise, the appellate court upheld the ALJ's RFC
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formulation limiting the claimant to “perform[ing] routine, repetitive tasks and
follow[ing] simple, non-complex instructions,” despite the expert's testimony limiting
the claimant to “direct, one or two steps or three steps that can be easily
followed” because there was “no conflict, obvious or otherwise” – and the claimant
had identified none – “between a one- to three-step instruction limitation” and the
ALJ's RFC formulation. Id. at 662-663. Furthermore, the Seventh Circuit has found
that Reasoning Level 3 – one step more demanding than Reasoning Level 2 – could
be consistent with “simple” tasks. Terry v. Astrue, 580 F.3d 471, 478 (7t Cir. 2009);
Sawyer v. Colvin, 512 Fed.Appx. 603, 610-611 (7th Cir. 2013).
This Court is not persuaded that defendant failed to meet its burden at Step 5
and declines to find that an apparent conflict exists between the GED reasoning level
and the SVP skill level at issue. Plaintiff’s counsel could have questioned the VE
about the basis for his testimony at the time of the hearing, but did not do so.
Overman v. Astrue, 546 F.3d 456, 465 (7th Cir. 208). As such, the ALJ did not
erroneously rely on the VE’s testimony.
II. The Effects of a Structured Setting on RFC
Plaintiff next argues that the ALJ failed to properly evaluate the effects of a
structured setting on her RFC. Specifically, plaintiff contends that Call For Help was
more than a transitional living facility, and that the ALJ failed to recognize that Call
for Help provided a structured setting.
To the contrary, the record is replete with evidence that the ALJ sufficiently
evaluated plaintiff’s residency at Call for Help. For example, the ALJ noted in her
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decision that “By mid-2019, Call for Help suggested returning to school to become a
community support specialist”, which she interpreted as suggesting plaintiff had a
greater ability to perform work-related tasks than reported (Tr. 22). Because plaintiff
was residing at Call for Help, clearly they were in a better position to determine her
needs and abilities. Call for Help did not see fit to limit the schooling recommendation
or ability to perform work-related tasks to a structured setting or environment.
The ALJ also referenced medical records wherein Call for Help was mentioned
(Tr. 542, 963). The ALJ considered plaintiff’s mental health treatment and found that
there were less than disabling restrictions, and also that her symptoms were not as
severe as she claimed them to be. (Tr. 21). The ALJ considered that no treating or
examining provider found that plaintiff could not function in a typical work setting.
(Tr. 22).
The ALJ considered and evaluated all the evidence, including plaintiff’s
residence at Call for Help, along with her mental and physical impairments, when
making her determination. See Pepper v. Colvin, 712 F.3d 351 (7th Cir. 2013). She
made assessments about the evidence and applied those to her conclusions. Id., 712
F.3d at 363.
Claimant was represented by attorney Frank Williams at the hearing in
October 2019 (Tr. 40). Mr. Williams inquired about her living situation at Call for
Help, including outings, chores, and services offered (Tr. 52-54). Mr. Williams was
also given the responsibility of supplementing the record with counseling and therapy
records from Call for Help within fourteen (14) days (Tr. 64)
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A claimant has the responsibility for identifying or submitting evidence to
demonstrate disability. 20 C.F.R. § 404.1512(a). Further, plaintiff was represented
by counsel at the agency level. The ALJ is entitled to assume that a claimant who is
represented by counsel is putting forth her strongest case for benefits. Skinner v.
Astrue, 478 F.3d 836, 842 (7th Cir. 2007).
Plaintiff’s arguments are little more than an invitation for this Court to
reweigh the evidence. She has not identified any error requiring remand. 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).
The ALJ weighed the evidence and concluded that the record did not support
a determination that Clifton could not work. Ultimately, it was Clifton’s burden, not
the ALJ’s, to prove that she was disabled. Summers v. Berryhill, 864 F.3d 523, 527
(7t Cir. 2017).
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 Plaintiff’s application for disability benefits is AFFIRMED.
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The Clerk of Court is directed to enter judgment in favor of defendant.
IT IS SO ORDERED.
DATED: September 28, 2021
/s/ Stephen P. McGlynn_
STEPHEN P. McGLYNN
U.S. District Judge
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