Emanuele v. Astrue, Case No. 09–C–0485.

• Decision Date: 17 March 2011
• Docket Number: Case No. 09–C–0485.
• Citation: Emanuele v. Astrue, 163 Soc.Sec.Rep.Serv. 562, 803 F.Supp.2d 959 (E.D. Wis. 2011)
• Court: U.S. District Court — Eastern District of Wisconsin
• Parties: Cynthia EMANUELE, Plaintiff, v. Michael J. ASTRUE, Defendant.

163 Soc.Sec.Rep.Serv. 562

803 F.Supp.2d 959

Cynthia EMANUELE, Plaintiff,

v.Michael J. ASTRUE, Defendant.

Case No. 09–C–0485.

United States District Court, E.D. Wisconsin.

March 17, 2011.

Cynthia Emanuele, Elkhorn, WI, pro se.

Social Security Administration, Brian E. Pawlak, United States Department of Justice (Ed–Wi) Office of the U.S. Attorney, Milwaukee, WI, for Defendant.

DECISION AND ORDER REVERSING DECISION OF AND REMANDING CASE TO THE COMMISSIONER

C.N. CLEVERT, JR., Chief Judge.

Plaintiff, Cynthia Emanuele, filed a claim for Disability Insurance Benefits (DIB) on June 24, 2004, claiming disability as of June 4, 2004. It is undisputed that in the spring or early summer of 2004 she was diagnosed with multiple sclerosis.

Emanuele's application was denied initially and on reconsideration. She requested an administrative hearing, which was conducted on November 15, 2006. (Tr. 414–58.¹) She appeared with counsel and testified at the administrative hearing, as did her daughter, Stephanie, and a vocational expert (VE), Michele Albers. December 19, 2006, the administrative law judge (ALJ) concluded that Emanuele was not disabled within the meaning of the Social Security Act because she could perform a significant number of light jobs. (Tr. 250–57.) The Appeals Counsel granted Emanuele's request for review on July 16, 2007, and remanded the case to the ALJ for further proceedings. (Tr. 258–61.) Among other matters, the ALJ was directed to address Exhibit 12F, a medical source statement from Dr. Bhupendra Khatri indicating that Emanuele meets section 11.09A of the Commissioner's “listings.” (Tr. 259.)

On June 11, 2008, the ALJ held a second hearing, at which Emanuele and her husband testified. (Tr. 459–515.) Again, Emanuele was represented by counsel. The ALJ then referred Emanuele for psychological testing. ( See Tr. 511–12.) As a result, Emanuele saw Dr. Frank Elmudesi on July 7, 2008. (Tr. 335–44 (Ex. 14F).)

The ALJ convened a third hearing on October 28, 2008, at which Emanuele appeared with counsel and testimony was given by medical expert Dr. Larry Larrabee, and VE Albers. (Tr. 516–75.) Dr. Elmudesi's report was also provided to the ALJ. On November 24, 2008, the ALJ issued his decision finding Emanuele disabled, but only as of July 7, 2008, the date on which she saw Dr. Elmudesi. The ALJ found Emanuele not disabled from her alleged onset date of June 4, 2004, to July 7, 2008. (Tr. 17–27.) Review was denied by the Appeals Council on March 9, 2009, making the ALJ's determination the final decision of the Commissioner. (Tr. 7.)

In this appeal from the Commissioner's decision Emanuele seeks judicial review on the denial of benefits for the period June 4, 2004, to July 7, 2008.

STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), this court's review is limited to determining whether the ALJ's decision is supported by “substantial evidence” and is based on the proper legal criteria. Scheck v. Barnhart, 357 F.3d 697, 699 (7th Cir.2004). The ALJ's findings of fact, when supported by substantial evidence, are conclusive. § 405(g). Substantial evidence is relevant evidence that a reasonable person could accept as adequate to support a conclusion. Kepple v. Massanari, 268 F.3d 513, 516 (7th Cir.2001). This court cannot reweigh evidence or substitute its judgment for that of the ALJ. Binion ex rel. Binion v. Chater, 108 F.3d 780, 782 (7th Cir.1997). However, if the ALJ commits an error of law reversal is required without regard to the volume of evidence supporting the factual findings. Id. Failure to follow the Commissioner's regulations and rulings constitutes legal error. Prince v. Sullivan, 933 F.2d 598, 602 (7th Cir.1991).

An ALJ must “ ‘minimally articulate his reasons for crediting or rejecting evidence of disability,’ ” Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir.2000) (quoting Scivally v. Sullivan, 966 F.2d 1070, 1076 (7th Cir.1992)), “build[ing] an accurate and logical bridge from the evidence to his conclusion,” id. at 872. Although the ALJ need not discuss every piece of evidence, he or she cannot select and discuss only the evidence supporting the decision. Herron v. Shalala, 19 F.3d 329, 333 (7th Cir.1994). Evidence favoring as well as disfavoring the claimant must be examined by the ALJ, and the ALJ's decision should reflect that examination. Zurawski v. Halter, 245 F.3d 881, 888 (7th Cir.2001). If the ALJ's decision lacks evidentiary support or is “so poorly articulated as to prevent meaningful review,” the district court should remand the case. Brindisi ex rel. Brindisi v. Barnhart, 315 F.3d 783, 785 (7th Cir.2003) (internal quotation marks omitted). However, a “sketchy opinion” may be sufficient if it is clear the ALJ considered the important evidence and the ALJ's reasoning can be traced. Id. at 787.

To obtain DIB, a claimant must be unable “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 12 months.” 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505.

The Administration has adopted a sequential five-step process for determining whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920. The ALJ must determine at step one whether the claimant is currently engaged in substantial gainful activity. If so, she is not disabled. If not, at step two the ALJ must determine whether the claimant has a severe physical or mental impairment. If not, the claimant is not disabled. If so, at step three the ALJ determines whether the claimant's impairments meet or equal one of the impairments listed in the Administration's regulations, 20 C.F.R. pt. 404, subpt. P, app. 1 (the “listings”), as being so severe as to preclude substantial gainful activity. If so, the claimant is found disabled. If not, at step four the ALJ determines the claimant's residual functional capacity (RFC) and whether the claimant can perform her past relevant work. If she can perform her past relevant work she is not disabled. However, if she cannot perform past work, then at step five the ALJ determines whether the claimant has the RFC, in conjunction with age, education, and work experience, to make the adjustment to other work. If the claimant can make the adjustment, she is found not disabled. If she cannot make the adjustment, she is found disabled. 20 C.F.R. 404.1520; see Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir.2004).

RFC is the most the claimant can do in a work setting despite her limitations. 20 C.F.R. § 404.1545(a)(1); SSR 96–8p; Young, 362 F.3d at 1000–01. The Administration must consider all of the claimant's known, medically determinable impairments when assessing RFC. § 404.1545(a)(2), (e).

The burden of moving forward at the first four steps is on the claimant. At step five, the burden shifts to the Commissioner to demonstrate that the claimant can successfully perform a significant number of other jobs that exist in the national economy. See Young, 362 F.3d at 1000.

ALJ'S FIVE–STEP ANALYSIS

At step one the ALJ found that Emanuele had not engaged in substantial gainful activity since the alleged onset date of June 4, 2004. (Tr. 19.) At step two he found that since the alleged onset date Emanuele had suffered from the severe impairments of multiple sclerosis and cognitive disorder not otherwise specified. ( Id.) Next, at step three, he found that Emanuele's impairments did not meet or medically equal a listed impairment.

In determining RFC at step four, the ALJ found that prior to July 7, 2008, Emanuele was able to lift twenty pounds occasionally and ten pounds frequently, was able to sit for six hours of an eight-hour day, could stand for six hours of an eight-hour day, and was available only for simple, routine, and repetitive work. He determined that she had the RFC to perform light work. (Tr. 21.) However, the ALJ found that beginning on July 7, 2008, (although Emanuele still had the RFC to perform light work with the same abilities to lift, stand, and sit, and the same restriction to simple, routine, and repetitive work) she had a “mildly limited ability for fingering and other fine manipulation tasks.” The ALJ further determined that Emanuele “would be randomly absent from work 3 or more days per month” due to psychological reasons. (Tr. 24.)

With this RFC determination, the ALJ then found that prior to July 7, 2008, Emanuele could have performed her past relevant work as a waitress and that there were a significant number of jobs in the national economy that she could have performed, such as food preparation worker (12,000 jobs), small products assembly (12,500 jobs), and janitor (5,000 jobs). Therefore, Emanuele lost at step four and step five.

According to the ALJ, beginning on July 7, 2008, there were no jobs in the national economy that Emanuele could perform. Therefore, he found her disabled as of that date.

DISCUSSION

Emanuele challenges the denial of benefits from June 4, 2004, to July 7, 2008. She labels five errors by the ALJ on appeal. However, because she proceeds pro se in this proceeding, her filings are entitled to a liberal construction. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).

The court has found subparts in alleged error number 2 and therefore interprets Emanuele's brief as arguing the following errors by the ALJ: (1) improper consideration of the opinions of treating physician Dr. Bhupendra Khatri; (2)(a) failure to develop the record regarding an “evoked response test,” (b) improper weight given to the opinion of Dr. Robert Braco, (c) incorrect consideration of the listings, and (d) incorrect consideration of Emanuele's pain; (3) improper consideration of a statement in the records from Dr. Judith Carlson that Emanuele “was evasive and resistant to answering” and a possible credibility issue; (4) failure to find that Emanuele's cognitive issues existed...