JAMES R. SWEENEY, II, District Judge.
Plaintiff Shonda S. ("Ms. S.") protectively applied for disability insurance benefits ("DIB") and supplemental security income ("SSI") from the Social Security Administration ("SSA") on August 2, 2014, alleging an onset date of December 18, 2012. [
"The Social Security Act authorizes payment of disability insurance benefits. . . to individuals with disabilities." Barnhart v. Walton, 535 U.S. 212, 214 (2002). "The statutory definition of `disability' has two parts. First, it requires a certain kind of inability, namely, an inability to engage in any substantial gainful activity. Second, it requires an impairment, namely, a physical or mental impairment, which provides reason for the inability. The statute adds that the impairment must be one that has lasted or can be expected to last . . . not less than 12 months." Id. at 217.
When an applicant appeals an adverse benefits decision, this Court's role is limited to ensuring that the ALJ applied the correct legal standards and that substantial evidence exists for the ALJ's decision. Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004) (citation omitted). For the purpose of judicial review, "[s]ubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quotation omitted). Because the ALJ "is in the best position to determine the credibility of witnesses," Craft v. Astrue, 539 F.3d 668, 678 (7th Cir. 2008), this Court must accord the ALJ's credibility determination "considerable deference," overturning it only if it is "patently wrong." Prochaska v. Barnhart, 454 F.3d 731, 738 (7th Cir. 2006) (quotations omitted).
The ALJ must apply the five-step inquiry set forth in 20 C.F.R. §404.1520(a)(4)(i)-(v),
Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000) (citations omitted) (alterations in original). "If a claimant satisfies steps one, two, and three, she will automatically be found disabled. If a claimant satisfies steps one and two, but not three, then she must satisfy step four. Once step four is satisfied, the burden shifts to the SSA to establish that the claimant is capable of performing work in the national economy." Knight v. Chater, 55 F.3d 309, 313 (7th Cir. 1995).
After Step Three, but before Step Four, the ALJ must determine a claimant's residual functional capacity ("RFC") by evaluating "all limitations that arise from medically determinable impairments, even those that are not severe." Villano v. Astrue, 556 F.3d 558, 563 (7th Cir. 2009). In doing so, the ALJ "may not dismiss a line of evidence contrary to the ruling." Id. The ALJ uses the RFC at Step Four to determine whether the claimant can perform her own past relevant work and if not, at Step Five to determine whether the claimant can perform other work. See 20 C.F.R. § 404.1520(iv), (v). The burden of proof is on the claimant for Steps One through Four; only at Step Five does the burden shift to the Commissioner. See Clifford, 227 F.3d at 868.
If the ALJ committed no legal error and substantial evidence exists to support the ALJ's decision, the Court must affirm the denial of benefits. Barnett, 381 F.3d at 668. When an ALJ's decision is not supported by substantial evidence, a remand for further proceedings is typically the appropriate remedy. Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 355 (7th Cir. 2005). An award of benefits "is appropriate only where all factual issues have been resolved and the record can yield but one supportable conclusion." Id. (citation omitted).
Ms. S. was 48 years of age at the time she applied for DIB and SSI. [
The ALJ followed the five-step sequential evaluation set forth by the SSA in 20 C.F.R. § 404.1520(a)(4) and ultimately concluded that Ms. S. was not disabled. [
• At Step Three, she did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments. [
• After Step Three but before Step Four, she had the RFC to "lift, push, pull, and carry 20 pounds occasionally and 10 pounds frequently; sit [a] total of 8 hours of an 8 hour workday; stand [a] total of 4 hours in an 8 hour workday; walk [a] total of 2 hours of an 8 hour workday; limited to work that allows the individual to sit and stand alternatively provided that the claimant can sit for a total of 2 hours at one time, stand for a total of 1 hour at one time, and walk for a total of 30-40 feet at one time and further provided claimant is in the new position for at least 2 minutes before resuming the prior positions; never climb ladders, ropes and scaffolds; never climb ramps or stairs; occasional balance; never kneel, crouch or crawl; only occasional stooping but not below the waist; with the dominant left upper extremity only occasional overhead reaching; occasional exposure to respiratory irritants such as fumes, odors, dusts and gases; no exposure to unprotected heights, dangerous machinery; limited to simple, routine, and repetitive work; limited to work with only occasional interaction with the public; only occasional interaction with coworkers; and only occasional interaction with supervisors. This assessment is consistent with the ability perform less than the full range of light work as defined in 20 CFR 404.1567(b) and 416.967(b))." [
• At Step Four, relying on the testimony of the vocational expert ("VE") and considering Ms. S.'s RFC, she was incapable of performing any of her past relevant work as a material handler, numerical control machine operator, motor vehicle assembler, spot welder (production line), and electronic component processor. [
Ms. S. raises three assignments of error, that the ALJ did not (1) properly evaluate an inability to ambulate effectively at Step Three, including with the assistance of an expert, (2) adequately account for the moderate limitations in concentration, persistence, or pace that the ALJ found supported, and (3) consider Ms. S.'s limited activities of daily living.
Ms. S. contends that the ALJ did not properly evaluate her claim at Step Three concerning whether Listings 1.02 or 1.04 were met or equaled. [
To meet an impairment identified in the listings, a claimant must establish, with objective medical evidence, the precise criteria specified in the listing. See 20 C.F.R. § 404.1525; Sullivan v. Zebley, 493 U.S. 521, 530-31 (1990); Rice v. Barnhart, 384 F.3d 363, 369 (7th Cir. 2004) ("The applicant must satisfy all of the criteria in the Listing in order to receive an award of" benefits at Step Three). In the alternative to meeting a listing, a claimant can establish "medical equivalence" in the absence of one or more of the findings if she has other findings related to the impairment or has a combination of impairments that "are at least of equal medical significance." See 20 C.F.R. § 404.1526(a)-(b). In considering whether a claimant's condition meets or equals a listed impairment, an ALJ must discuss the listing by name and offer more than a perfunctory analysis of the listing. See Brindisi ex rel. Brindisi v. Barnhart, 315 F.3d 783, 786 (7th Cir. 2003); Scott v. Barnhart, 297 F.3d 589, 595-96 (7th Cir. 2003). However, the Seventh Circuit has held that in the absence of a contradictory medical opinion, where there is no significant evidence to support a listing, the ALJ can rely on the consultant reviewing opinions that no listing is met or equaled, even without articulating such reliance in the decision. Scheck v. Barnhart, 357 F.3d 697, 700-01 (7th Cir. 2004) (citing Steward v. Bowen, 858 F.2d 1295, 1299 (7th Cir. 1988)). The Seventh Circuit precedent is consistent with the ALJ's burden under SSR 96-6p, which states:
Social Security Ruling ("SSR") 96-6p (S.S.A. July 2, 1996), 1996 WL 374180 at *3.
Both Listing 1.02(A) for major dysfunction of one major weight-bearing joint and Listing 1.04(C) for lumbar spinal stenosis require, in part, that the impairment results "in inability to ambulate effectively, as defined in 1.00B2b." 20 C.F.R. Pt. 404, Subpt. P, App. 1, 1.02(A) and 1.04(C). While there is some question as to whether Ms. S. presented evidence meeting the other requirements of Listing 1.04(C), it does appear to the Court that the other requirements of Listing 1.02(A) were satisfied. Id. Accordingly, an inability to ambulate effectively appears to be a dispositive requirement in this case at Step Three. The referenced regulatory section explains:
20 C.F.R. Pt. 404, Subpt. P, App. 1, 1.00(B)(2)(b).
The ALJ specifically discussed both listings raised by Ms. S. [
[
Other parts of the ALJ's written decision continue to explain how the ALJ reached the material conclusion that the requirement was not met. See Rice, 384 F.3d at 370 n.5 ("it is proper to read the ALJ's decision as a whole, and . . . it would be needless formality to have the ALJ repeat substantially similar factual analyses" throughout the decision.). For example, the ALJ sufficiently explained how she concluded that Ms. S. "uses a cane and wheelchair but they are not established as median cally necessary."
Furthermore, the Court does not find any substantial error of articulation based on the ALJ's failure to confront conflicting evidence. 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) (citations of collected cases omitted). For one, the ALJ did confront portions of the record that Ms. S. cites. See [
Moreover, the evidence that Ms. S. cites, when reviewed in its entirety, is not particularly supportive of her claim that an inability to ambulate effectively was established. For example, on November 4, 2013, a treatment note indicated an "antalgic" gait, but also that it was "full weight bearing" and that Ms. S.'s review of systems was "negative for difficulty walking, dizziness, and headache." [
Similarly, the Court can trace the ALJ's logic as to how she concluded the other examples of an inability to ambulate effectively were not credibly established by the record. Ms. S. contends that her case is analogous to the Seventh Circuit decision in Moss v. Astrue, 555 F.3d 556, 562-63 (7th Cir. 2009). In Moss, the claimant presented significant evidence that her surgically-repaired ankle resulted in an inability to fully bear her weight on her right foot and that she needed to use a single cane to ambulate. Id. at 558. The Seventh Circuit explained:
Id. at 562. The Seventh Circuit remanded because of the ignored qualifications and explained that the ALJ had also taken a too narrow view of the regulatory definition of an inability to ambulate by focusing on the use of a single cane without considering the other examples of the necessary level of functional impairment. Id. at 562-63. The Court is not persuaded by the Commissioner's reading of the case that for Ms. S. to get the benefit of having the ALJ consider the full regulatory definition of the listing requirement, Ms. S. must have a relevant, supportive medical opinion. However, Ms. S. overlooks evidence that the ALJ cited that is relevant to consideration of the full regulatory definition. Most notably, the ALJ cited evidence that "[t]hrough April 2015, [Ms. S.] rated her pain as a 2 to 3/10. She also reported decreased pain and an increase in function which allowed her to complete more activities of daily living (Ex. C22F at 10)." [
Finally, the Court finds that the ALJ fulfilled her duty, consistent with SSR 96-6p and Scheck, as discussed above, to get expert assistance establishing that no listing was medically equaled. On December 30, 2014, M. Brill, M.D., completed disability transmittal forms covering Ms. S.'s SSI and DIB claims, [
Ms. S. contends that the ALJ did not adequately account for the moderate limitations in concentration, persistence, or pace that the ALJ found were supported by record. [
Regardless of the basis, a hypothetical question posed by the ALJ to the VE "must fully set forth the claimant's impairments to the extent that they are supported by the medical evidence in the record." Herron v. Shalala, 19 F.3d 329, 337 (7th Cir. 1994); Indoranto v. Barnhart, 374 F.3d 470, 473-74 (7th Cir. 2004) ("If the ALJ relies on testimony from a vocational expert, the hypothetical question [she] poses to the VE must incorporate all of the claimant's limitations supported by medical evidence in the record."); SSR 96-5p (S.S.A. July 2, 1996), 1996 WL 374183, at *5 (RFC assessment "is based upon consideration of all relevant evidence in the case record, including medical evidence and relevant nonmedical evidence"); 20 C.F.R. § 404.1545. "Among the mental limitations that the VE must consider are deficiencies of concentration, persistence, or pace." Varga v. Colvin, 794 F.3d 809, 813 (7th Cir. 2015) (citing Yurt v. Colvin, 758 F.3d 850, 857 (7th Cir. 2014); Stewart v. Astrue, 561 F.3d 679, 684 (7th Cir. 2009)). "Although it is not necessary that the ALJ use the precise terminology of `concentration,' `persistence,' or `pace,' we will not assume that a VE is apprised of such limitations unless he or she has independently reviewed the medical record."
The Seventh Circuit has repeatedly expressed its concerns with translating moderate limitations of concentration, persistence, and pace into limitations as to the skill level demands of a job. "In most cases, however, employing terms like `simple, repetitive tasks' on their own will not necessarily exclude from the VE's consideration those positions that present significant problems of concentration, persistence and pace." O'Connor-Spinner v. Astrue, 627 F.3d 614, 620 (7th Cir. 2010) (citing Stewart, 561 F.3d at 684-85 (limiting hypothetical to simple, routine tasks did not account for limitations of concentration, persistence, and pace)); see also Craft, 539 F.3d at 677-78 (restricting hypothetical to unskilled work did not consider difficulties with memory, concentration or mood swings)). "The ability to stick with a given task over a sustained period is not the same as the ability to learn how to do tasks of a given complexity." O'Connor-Spinner, 627 F.3d at 620 (citing Stewart, 561 F.3d at 684-85; Craft, 539 F.3d at 677; see also SSR 85-15 (S.S.A. Jan. 1, 1985) 1985 WL 56857, at *6 ("Because response to the demands of work is highly individualized, the skill level of a position is not necessarily related to the difficulty an individual will have in meeting the demands of the job. A claimant's [mental] condition may make performance of an unskilled job as difficult as an objectively more demanding job.")). "[W]e have repeatedly rejected the notion that a hypothetical like the one here confining the claimant to simple, routine tasks and limited interactions with others adequately captures temperamental deficiencies and limitations in concentration, persistence, and pace." Yurt, 758 F.3d at 858-59.
When assessing the "paragraph B" criteria, the ALJ found that Ms. S. had moderate difficulties with concentration, persistence, or pace.
[
The abundant Seventh Circuit decisional authority on this issue establishes that the ALJ's RFC finding must be consistent with the evidentiary basis of their paragraph B finding, including most notably the opinion evidence that the ALJ relies upon. Ms. S. relies on Seventh Circuit precedent already discussed above in Yurt and Varga in support of her argument. [
Ms. S. asserts that the ALJ erroneously dismissed the importance of Ms. S.'s extremely limited activities of daily living. [
As noted above, the Seventh Circuit requires the Court to accord the ALJ's credibility determination considerable deference, overturning it only if is it patently wrong. Reviewing courts examine whether a credibility determination was reasoned and supported; only when an ALJ's decision "lacks any explanation or support . . . will [the Court] declare it to be `patently wrong.'" Elder v. Astrue, 529 F.3d 408, 413-14 (7th Cir. 2008); Prochaska, 454 F.3d at 738 ("Only if the trier of fact grounds his credibility finding in an observation or argument that is unreasonable or unsupported can the finding be reversed."). However, when the credibility determination rests on "objective factors or fundamental implausibilities rather than subjective considerations, appellate courts have greater freedom to review the ALJ's decision." Clifford, 227 F.3d at 872.
On March 28, 2016, SSR 16-3p (S.S.A Oct. 25, 2017), 2017 WL 5180304, at *2, became effective, replacing SSR 96-7p, and providing new guidance regarding how a disability claimant's statements about the intensity, persistence, and limiting effects of symptoms are to be evaluated. Under SSR 16-3p, an ALJ now assesses a claimant's subjective symptoms rather than assessing her "credibility." Id. The Seventh Circuit has explained that the "change in wording is meant to clarify that administrative law judges aren't in the business of impeaching claimants' character; obviously administrative law judges will continue to assess the credibility of pain assertions by applicants, especially as such assertions often cannot be either credited or rejected on the basis of medical evidence." Cole v. Colvin, 831 F.3d 411, 412 (7th Cir. 2016) (emphasis in original). The standard used to review an ALJ's subjective symptom evaluation remains whether the assessment is patently wrong.
Ms. S. does not engage the relevant standard of review or fully develop an argument that the ALJ's subjective symptom evaluation was patently wrong. An ALJ may appropriately consider a claimant's daily activities, including household chores. Craft, 539 F.3d at 680 (citing 20 C.F.R. § 404.1529). However, the Seventh Circuit has proscribed placing undue weight on daily activities that "ignored [the claimant's] qualifications as to how [she] carried out those activities." Craft, 539 F.3d at 680 (emphasis in original). The Seventh Circuit has also found an ALJ's use of necessary childcare objectionable to establish the ability to work full-time when the ALJ ignored indications the claimant could take breaks and received assistance from family members. See Gentle v. Barnhart, 430 F.3d 865, 867-68 (7th Cir. 2005). However, as discussed above, the ALJ acknowledged that Ms. S. had difficulties performing household chores. The ALJ also cited evidence that Ms. S. was more capable of performing her activities of daily living with the use of pain medication.
Regardless, to whatever degree the ALJ's use of childcare was objectionable, Ms. S. does not engage the many other justifications that the ALJ gave for finding Ms. S.'s statements concerning her subjective symptoms not entirely consistent with the record. Under the deferential standard, an ALJ's subjective symptom evaluation need not be perfect. In McKinzey v. Astrue, 641 F.3d 884, 890 (7th Cir. 2011), the Seventh Circuit explained "[a]lthough we find some deficiencies in the ALJ's discussion of McKinzey's credibility, we conclude that the ALJ has pointed to sufficient evidence in the record to justify [his] negative determination." "The ALJ's credibility determination was not without fault. Indeed, we see some merit in two out of three of McKinzey's attacks." Id. The Seventh Circuit upheld the ALJ's credibility determination because the ALJ had accurately provided other reasons. Id. at 891. Here, the ALJ cited substantial evidence that suggested that Ms. S.'s pain, [
"The standard for disability claims under the Social Security Act is stringent." Williams-Overstreet v. Astrue, 364 F. App'x 271, 274 (7th Cir. 2010). "Even claimants with substantial impairments are not necessarily entitled to benefits, which are paid for by taxes, including taxes paid by those who work despite serious physical or mental impairments and for whom working is difficult and painful." Id. Taken together, the Court can find no legal basis presented by Ms. S. to reverse the ALJ's decision that she was not disabled during the relevant period. Therefore, the decision below is