Hickey v. Carolyn Colvin Comm'r of Soc. Sec.
| Decision Date | 25 June 2015 |
| Docket Number | Case No. 13 C 7857 |
| Court | U.S. District Court — Northern District of Illinois |
| Parties | JOHN HICKEY, Plaintiff v. CAROLYN COLVIN Commissioner of Social Security, Defendant. |
MEMORANDUM OPINION AND ORDER
Plaintiff John Hickey ("Plaintiff" or "Hickey") seeks judicial review of a final decision of Defendant Carolyn Colvin, the Acting Commissioner of Social Security ("Commissioner"). The Commissioner denied Plaintiff's application for disability benefits and supplemental security income benefits for the period of October 5, 2005 through February 28, 2009, and from February 9, 2011 through his last insured date of December 31, 2014. Hickey was found to be disabled during the interim period of March 1, 2009 through February 9, 2011 in a written decision of Administrative Law Judge ("ALJ") Kimberly Cromer. Hickey appealed the ruling to this Court and filed a Motion for Summary Judgment that seeks to reverse the Commissioner's decision.1 The Commissioner hasfiled a cross motion.
Hickey experienced a work-related injury in January 2004 that created serious back and leg pain. After years of conservative care, he underwent a L4-L5 fusion for disc herniation in March 2009. Antibiotic treatment was necessary to resolve an ensuing infection. In May 2009, Hickey had a second surgery for a lumbar spinal fusion that included placing hardware into the affected area. This included bi-pedicular screws at L2 and L5, and a cage at the L4-L5 vertebrae. Several epidural injections were given to relieve Hickey's continuing pain. He was also treated with a variety of narcotic pain medications and anti-depressant drugs. On September 6, 2011, a spinal cord stimulator was surgically implanted into his spine.
In order to qualify for disability benefits, a claimant must demonstrate that he is disabled. An individual does so by showing that he cannot "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. § 4243(d)(1)(A). Gainful activity is defined as "the kind of work usually done for pay or profit, whether or not a profit is realized." 20 C.F.R. § 404.1572(b).
The Social Security Administration ("SSA") applies a five-step analysis to disability claims. See 20 C.F.R. § 404.1520. The Court omits a description of this well-known standard. When, as here, an ALJ finds that a claimant is disabled for a closed period, while also finding that he experienced medical improvement, the ALJ must follow the eight-step analytic standard set out in 20 C.F.R. § 404.1594. The ALJ must consider whetherthe claimant:
(1) is engaging in substantial gainful activity;
(2) has an impairment or combination of impairments that meet or equal the severity of a listed impairment;
(3) has experienced medical improvement, as that term is defined in the regulations;
(4) has experienced an increase in his residual functional capacity ("RFC") as a result of the improvement;
(5) has, if no improvement exists, the ability to engage in substantial gainful activity ("SGA");
(6) has current impairments that are severe in combination despite medical improvement;
(7) has the ability and RFC to do his past relevant work; and
(8) has the ability to do other work that constitutes SGA.
The Commissioner bears the burden in a continuing disability case of showing that the claimant has experienced medical improvement such that he can engage in SGA. 20 C.F.R. § 404.1594(b)(5); Mables v. Sullivan, 812 F. Supp. 886, 888 (C.D. Ill. 1993) (); Stewart v. Astrue, 2012 WL 2994080, at *2 (N.D. Ill. July 19, 2012) (); see also Glenn v. Shalala, 21 F.3d 983, 987 (10th Cir. 1994); Griego v. Sullivan, 940 F.2d 942, 944 (5th Cir. 1991); Carter v. Colvin, 27 F. Supp.3d 1142, 1147 (D. Colo. 2014); Deronde v. Astrue, 2013 WL 869489, at *3 (N.D.N.Y. Feb. 11, 2013); Sturgill v. Astrue, 2010 WL 715672, at *3 (S.D. Ohio Feb. 23, 2010); Easly v. Astrue, 2009 WL 928682, at *3 (D. Or. April 2, 2009); Vicknair v. Astrue, 2009 WL 2949764, at *4 (N.D. Tex. Sept. 15, 2009); Suriel v. Comm. of Soc. Sec., 2006 WL 2516429, at *4 (E.D.N.Y. Aug. 29,2006).
The ALJ applied the ususal five-step standard to find that Hickey was not disabled from October 5, 2005 through February 28, 2009. She relied on the same standard to conclude that he then became disabled on March 1, 2009 and continued to be so through February 8, 2011. She found at Step 1 that Hickey had not engaged in SGA during any part of his alleged disability period. The ALJ concluded at Step 2 that he suffered from the severe impairments of "degenerative disc disease with disc herniation at L4-L5 and surgical complications." (R. 15). Relying on the testimony of medical expert Dr. Ashok Jilhewar, the ALJ found that Hickey's impairments met the requirements of listing 1.04 for the period of March 1, 2009 through February 8, 2011. That ended the five-step analysis for this period because the ALJ concluded that Hickey was disabled.
The ALJ did not carefully articulate the eight-step analysis that led her to believe that Hickey stopped being disabled as of February 9, 2011. She did find that Hickey had not engaged in SGA at any point during his alleged disability period. That satisfied Step 1. The ALJ relied on the testimony of Dr. Jilhewar at Step 2 to find that Hickey no longer met or equaled listing 1.04 on February 9, 2011. She concluded at Step 3 that he experienced medical improvement on the same date. Like the listing issue, that was also based on Dr. Jilhewar's testimony, as well as medical reports given by consulting expert Dr. Mahesh Shah and treating physician Dr. Timothy Lubenow.
The rest of the ALJ's decision did not identify the subsequent steps involved in the eight-step analysis for a continuing disability. Nevertheless, she went on to find that Hickey could perform work at the sedentary level as long as several exertional and non-exertionallimitations were in place. She also evaluated Hickey's credibility for the post-disability periods, concluding that his statements concerning the severity of his symptoms were not credible. Hickey was unable at Step 7 to perform his past relevant work. The ALJ then relied on the testimony of a vocational expert to find at Step 8 that work existed in the national economy that Hickey could perform. She therefore concluded that Hickey was not disabled as of February 9, 2011.
Plaintiff does not provide any argument that challenges the ALJ's finding that he was not disabled prior to March 1, 2009. The Commissioner does not contest her conclusion that Plaintiff was disabled between March 1, 2009 and February 8, 2011. The only relevant issue is whether Hickey's disability ended on February 9, 2011. Unfortunately, both parties fail to make clear distinctions between the different standards that apply in this case. The five-step process is used to decide if a claimant is disabled. The issue of whether he continues to be disabled is governed by the separate eight-step process. See Spearman v. Comm. of Soc. Sec., — F. Supp.3d —, 2015 WL 439284, at *3 (N.D. Miss. Feb. 3, 2015); Otto v. Colvin, 2014 WL 1029844, at *2 (C.D. Cal. March 17, 2014). In light of the plain errors in the ALJ's decision, the Court only addresses Step 2, Step 3, and the credibility analysis.
The ALJ must decide at Step 2 if a claimant's impairment meets or equals a listing. ALJ Cromer found that Hickey continued to have the same severe impairment that she had identified earlier in the five-step analysis. That was "degenerative disc disease with discherniation at L4-L5 and surgical complications." (R. 15, 18). The ALJ's five-step analysis concluded that Hickey's impairment did not meet or equal listing 1.04 prior to March 1, 2009. The listing was met during the period of March 1, 2009 through February 8, 2011. As noted, the ALJ found that Hickey no longer met or equaled the listing as of February 9, 2011 based on Dr. Jilhewar's testimony at the administrative hearing.
Listing 1.04 contains three mutually-exclusive subparts. The ALJ did not identify which of these she thought that Plaintiff met. The Court assumes she meant listing 1.04(A) because that was the only one that Dr. Jilhewar discussed at the hearing. A claimant is presumptively disabled under that listing if he meets or equals the following description:
Hickey must show that his impairment satisfies all of these criteria in order to meet the listing. Ribaudo v. Barnhart, 458 F.3d 580, 583 (7th Cir. 2006). Plaintiff's motion, however, fails to identify the listing that is at issue in this case. Instead of addressing listing 1.04(A), Hickey claims in his reply brief that he meets the criteria of listing 1.05(C). That is irrelevant to the ALJ's decision. ALJ Cromer and Dr. Jilhewar only addressed listing 1.04(A). If Hickey thought that the ALJ relied on the incorrect listing in her decision, he wasobligated to raise that point in his motion. Arguments and legal...
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