Thomas v. Astrue

• Decision Date: 19 October 2011
• Docket Number: No. 09 C 7851,09 C 7851
• Parties: JAMES THOMAS, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security Defendant.
• Court: U.S. District Court — Northern District of Illinois

JAMES THOMAS, Plaintiff,

v.MICHAEL J. ASTRUE, Commissioner of Social Security Defendant.

No. 09 C 7851

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

Dated: October 19, 2011

Magistrate Judge Nan R. Nolan

MEMORANDUM OPINION AND ORDER

Plaintiff James Thomas filed this action seeking review of the final decision of the Commissioner of Social Security ("Commissioner") denying his application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act ("SSA"). 42 U.S.C. §§ 416, 423(d), 1381a. The parties have consented to the jurisdiction of the United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c), and have filed cross-motions for summary judgment. For the reasons stated below, this case is remanded for further proceedings consistent with this opinion.

I. THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS

To recover Disability Insurance Benefits ("DIB") or Supplemental Security Income ("SSI") under Titles II and XVI of the SSA, a claimant must establish that heor she is disabled within the meaning of the SSA.¹ York v. Massanari, 155 F. Supp. 2d 973, 977 (N.D. Ill. 2001); Keener v. Astrue, 2008 WL 687132, at *1 (S.D. Ill. 2008). A person is disabled if he or she is unable to perform "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." 20 C.F.R. §§ 404.1505(a), 416.905(a). In determining whether a claimant suffers from a disability, the ALJ conducts a standard five-step inquiry:

1. Is the claimant presently unemployed?

2. Does the claimant have a severe medically determinable physical or mental impairment that interferes with basic work-related activities and is expected to last at least 12 months?

3. Does the impairment meet or equal one of a list of specific impairments enumerated in the regulations?

4. Is the claimant unable to perform his or her former occupation?

5. Is the claimant unable to perform any other work?

20 C.F.R. §§ 404.1509, 404.1520, 416.909, 416.920; see Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000). "An affirmative answer leads either to the next step, or, on Steps 3 and 5, to a finding that the claimant is disabled. A negative answer at any point, other than Step 3, ends the inquiry and leads to a determination that a claimant is not disabled." Zalewski v. Heckler, 760 F.2d 160, 162 n.2 (7th Cir. 1985).

"The burden of proof is on the claimant through step four; only at step five does the burden shift to the Commissioner." Clifford, 227 F.3d at 868.

II. PROCEDURAL HISTORY

Plaintiff applied for DIB and SSI on May 30, 2006, alleging he became disabled on April 21, 2006, due to learning disability, type II diabetes, hairline fracture in his shin, and a dislocated right knee.² (R. at 16, 104, 105, 143, 148, 186, 191.) The applications were denied initially and on reconsideration, after which Plaintiff filed a timely request for a hearing. (Id. at 16, 104-24.) In a prehearing case summary dated January 24, 2009, Plaintiff added a new allegation of chronic obstructive pulmonary disease. (Id. at 247-53.)

On January 27, 2009, Plaintiff, represented by counsel, testified at a video-teleconferencing hearing before an Administrative Law Judge ("ALJ"). (R. at 16, 46-103.) The ALJ also heard testimony from William Newman, M.D., a medical expert ("ME"), and James E. Bordieri, a vocational expert ("VE"). (Id.)

The ALJ denied Plaintiff's request for benefits on February 5, 2009. (R. at 16-26.) Applying the five-step sequential evaluation process, the ALJ found, at step one, that Plaintiff has not engaged in substantial gainful activity since April 21, 2006, his alleged onset date. (Id. at 18.) At step two, the ALJ found that Plaintiff's severe impairments consist of right knee patellar tendon tear by history—stable without surgery, diabetes mellitus type I without end-organ damage or neuropa-thies, and borderline intellectual functioning, full-scale IQ 71, performance IQ 77. (Id. at 18-19.) At step three, the ALJ determined that Plaintiff's impairments do not meet or medically equal the severity of any of the listings enumerated in the regulations. (Id. at 20.)

The ALJ then assessed Plaintiff's residual functional capacity ("RFC")³ and determined that Plaintiff has the RFC to perform a "significant, if less than full, range of 'sedentary' work." (R. at 21.) Specifically, the ALJ concluded that Plaintiff is limited to work that restricts him to

lifting and carrying at least 10 lbs. occasionally and frequently, standing and walking for 2 hours with the use of a right knee brace, and sitting for 6 hours in an 8-hour workday allowing for normal breaks. [Plaintiff] should never climb ladders, ropes, or scaffolds, work near hazards such as unprotected heights or close to dangerous, moving machinery, or with extremes of temperature, or near environmental irritants such as smoke, chemicals, odors, or fumes, and he also should not crouch, kneel, or crawl. In addition, [Plaintiff] should do no more than occasionally climb stairs or ramps, or balance, or stoop. [Plaintiff] would be moderately limited in his ability to carry out detailed or complex tasks, and in maintaining concentration, persistence, or pace. The undersigned defines "moderate" to mean would cause difficulties in the workplace, less than often than occasionally.

(Id.) Based on Plaintiff's RFC and the VE's testimony, the ALJ determined at step four that Plaintiff could not perform any past relevant work. (Id. at 24.) At step five, based on Plaintiff's RFC, his vocational factors and the VE's testimony, the ALJ determined that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, including work as an assembler, weight-tester/quality control, and hand packager/hand-sorter. (Id. at 25.) Accordingly, theALJ concluded that Plaintiff was not suffering from a disability as defined by the SSA. (Id.) The Appeals Council denied Plaintiff's request for review on June 10, 2009 (id. at 8-10, 12), and Plaintiff now seeks judicial review of the ALJ's decision, which stands as the final decision of the Commissioner, Villano v. Astrue, 556 F.3d 558, 561-62 (7th Cir. 2009).

III. STANDARD OF REVIEW

Judicial review of the Commissioner's final decision is authorized by § 405(g) of the SSA. In reviewing this decision, the Court may not engage in its own analysis of whether the plaintiff is severely impaired as defined by the Social Security Regulations. Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004). Nor may it "reweigh evidence, resolve conflicts in the record, decide questions of credibility, or, in general, substitute [its] own judgment for that of the Commissioner." Id. The Court's task is "limited to determining whether the ALJ's factual findings are supported by substantial evidence." Id. (citing § 405(g)). Evidence is considered substantial "if a reasonable person would accept it as adequate to support a conclusion." Indoranto v. Barnhart, 374 F.3d 470, 473 (7th Cir. 2004). "Substantial evidence must be more than a scintilla but may be less than a preponderance." Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007). "In addition to relying on substantial evidence, the ALJ must also explain his analysis of the evidence with enough detail and clarity to permit meaningful appellate review." Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005).

Although this Court accords great deference to the ALJ's determination, it "must do more than merely rubber stamp the ALJ's decision." Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir. 2002) (citation omitted). The Court must critically review the ALJ's decision to ensure that the ALJ has built an "accurate and logical bridge from the evidence to his conclusion." Young, 362 F.3d at 1002. Where the Commissioner's decision "lacks evidentiary support or is so poorly articulated as to prevent meaningful review, the case must be remanded." Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002).

IV. DISCUSSION

Plaintiff raises several arguments in support of his request for a reversal and remand: (1) the ALJ failed to properly consider Plaintiff's mental impairments in both the listing analysis and the RFC assessment; (2) the ALJ made a legally insufficient credibility assessment; (3) the ALJ failed to consider whether Plaintiff's impairments functionally equaled Listing 1.02; (4) the ALJ failed to allow Plaintiff's attorney the opportunity to fully cross-examine the VE; and (5) the ALJ incorrectly relied on state-wide numbers of jobs rather than the number of jobs in the region where Plaintiff lives. The Court addresses each argument in turn.

A. SSA Proceedings

As a preliminary matter, the Court is troubled by the ALJ's treatment of Plaintiff's counsel at the hearing. During a consultative examination, Plaintiff was administered the Wechsler Adult Intelligence Scale—Third Edition ("WAIS-III") (R. at 290), "the standard instrument in the United States for assessing intellectual func-tioning," Atkins v. Virginia, 536 U.S. 304, 309 n.5 (2002); see Vander Linden v. Astrue, 2010 WL 1417931, at *4 (E.D. Wis. April 7, 2010) (WAIS-III "measures general intellectual skills"). "The WAIS-III is scored by adding together the number of points earned on different subtests, and using a mathematical formula to convert this raw score into a scaled score." Atkins, 536 U.S. at 309 n.5. At the hearing, Plaintiff's counsel questioned the VE about the significance of Plaintiff's subtest scores (R. at 95), which ranged from 3 to 9 (id. at 290). The VE testified that scores below 10 represented relative weaknesses, while scores above 10 indicated relative strengths. (Id. at 95-96.) He stated that persons with Plaintiff's scores would not necessarily be precluded from work, but "may have some difficulty...