DENISE K. LaRUE, Magistrate Judge.
Plaintiff Karen E. Roache brings this suit for judicial review of the defendant Commissioner's denial of her application for Supplemental Security Income benefits under the Social Security Act. The district judge referred the issues presented in this Cause to this magistrate judge for submission of a report and recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Order Referring Issues to Magistrate Judge [doc. 13].
Judicial review of the Commissioner's factual findings is deferential: courts must affirm if her findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Skarbek v. Barnhart, 390 F.3d 500, 503 (7th Cir. 2004); Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003). Substantial evidence is more than a scintilla, but less than a preponderance, of the evidence. Wood v. Thompson, 246 F.3d 1026, 1029 (7th Cir. 2001). If the evidence is sufficient for a reasonable person to conclude that it adequately supports the Commissioner's decision, then it is substantial evidence. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Carradine v. Barnhart, 360 F.3d 751, 758 (7th Cir. 2004). This limited scope of judicial review derives from the principle that Congress has designated the Commissioner, not the courts, to make disability determinations:
Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004). Carradine, 360 F.3d at 758. While review of the Commissioner=s factual findings is deferential, review of her legal conclusions is de novo. Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010).
The Social Security Act defines disability as the "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 12 months. . . ." 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505(a). 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. § 416.905(a). A person will be determined to be disabled only if his impairments "are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work." 42 U.S.C. §§ 423(d)(2)(A) and 1382c(a)(3)(B). 20 C.F.R. §§ 404.1505, 404.1566, 416.905, and 416.966. The combined effect of all of an applicant's impairments shall be considered throughout the disability determination process. 42 U.S.C. § 423(d)(2)(B) and 1382c(a)(3)(G). 20 C.F.R. §§ 404.1523 and 416.923.
The Social Security Administration has implemented these statutory standards in part by prescribing a "five-step sequential evaluation process" for determining disability. If disability status can be determined at any step in the sequence, an application will not be reviewed further. At the first step, if the applicant is currently engaged in substantial gainful activity, then he is not disabled. At the second step, if the applicant's impairments are not severe, then he is not disabled. A severe impairment is one that "significantly limits [a claimant's] physical or mental ability to do basic work activities." Third, if the applicant's impairments, either singly or in combination, meet or medically equal the criteria of any of the conditions included in the Listing of Impairments, 20 C.F.R. Pt. 404, Subpt. P, Appendix 1, Part A, then the applicant is deemed disabled. The Listing of Impairments are medical conditions defined by criteria that the Social Security Administration has pre-determined are disabling. 20 C.F.R. § 404.1525. If the applicant's impairments do not satisfy the criteria of a listing, then her residual functional capacity ("RFC") will be determined for the purposes of the next two steps. RFC is an applicant's ability to do work on a regular and continuing basis despite his impairment-related physical and mental limitations and is categorized as sedentary, light, medium, or heavy, together with any additional non-exertional restrictions. At the fourth step, if the applicant has the RFC to perform his past relevant work, then he is not disabled. Fifth, considering the applicant's age, work experience, and education (which are not considered at step four), and his RFC, the Commissioner determines if he can perform any other work that exists in significant numbers in the national economy. 42 U.S.C. § 416.920(a)
The burden rests on the applicant to prove satisfaction of steps one through four. The burden then shifts to the Commissioner at step five to establish that there are jobs that the applicant can perform in the national economy. Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004). If an applicant has only exertional limitations that allow her to perform the full range of work at her assigned RFC level, then the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2 (the "grids"), may be used at step five to arrive at a disability determination. The grids are tables that correlate an applicant's age, work experience, education, and RFC with predetermined findings of disabled or not-disabled. If an applicant has non-exertional limitations or exertional limitations that limit the full range of employment opportunities at his assigned work level, then the grids may not be used to determine disability at that level. Instead, a vocational expert must testify regarding the numbers of jobs existing in the economy for a person with the applicant's particular vocational and medical characteristics. Lee v. Sullivan, 988 F.2d 789, 793 (7th Cir. 1993). The grids result, however, may be used as an advisory guideline in such cases.
An application for benefits, together with any evidence submitted by the applicant and obtained by the agency, undergoes initial review by a state-agency disability examiner and a physician or other medical specialist. If the application is denied, the applicant may request reconsideration review, which is conducted by different disability and medical experts. If denied again, the applicant may request a hearing before an administrative law judge ("ALJ").
Ms. Roache applied for S.S.I. benefits on March 29, 2012. Her claim was denied on initial, (R. 58, 63), and reconsideration, (R. 59, 60, 74), reviews. A hearing was held before an ALJ on May 16, 2013, at which a vocational expert testified. (R. 35.) Ms. Roache was represented during the pre-hearing reviews and at the hearing by present counsel. (Id.) The ALJ issued his decision on June 18, 2013. (R. 7, 22.)
At the time of the ALJ's decision, Ms. Roache was forty-eight years old and had previous work experience as a prep cook (last worked in February 2012, which is when she alleges she became disabled) and as a telephone solicitor. She suffered a stroke in October 2011. She alleged that she has since suffered from constant headaches that cause dizziness and loss of balance. She alleged that she has radiating pain through her right leg and buttock, at a level of 8 or 9, on a 10-point scale; occasional disorientation and memory loss; pain from sitting, walking, and standing; difficulty in using her right arm and hand; difficulty concentrating; weakness in her arms; and depression, which causes tiredness, confusion, and decreased sleep. She alleged that she drops things; must use a cane for balance; cannot drive; and has been stumbling and falling. Her right leg sometimes gave out. She estimated that she could walk for less than a block, stand for about 10 minutes, and can sit in a car for 15 minutes before it becomes too painful. She alleged that she lives with her mother and receives help in daily activities from her mother and sister.
At step one of the sequential evaluation process, the ALJ found that Ms. Roache had not engaged in substantial gainful activity since March 29, 2012, the date of her application.
For the purposes of steps four and five, the ALJ determined Ms. Roache's residual functional capacity. He found that she has the RFC for light work with the following additional restrictions: (1) no climbing ladders, ropes, or scaffolds; (2) may occasionally perform other postural activities; (3) only occasionally reach overhead with her right arm; (4) may frequently, but not continuously, handle and finger bilaterally; (5) must avoid concentrated exposure to hazards, loud noises, bright lights; and (6) limited to routine, unskilled work. The ALJ found that, while Ms. Roache's impairments reasonably could be expected to cause the types of subjective symptoms that she alleged, her descriptions of their intensity, persistence, and limiting effects were not entirely credible.
At step four, the ALJ found that Ms. Roache's RFC prevents the performance of her past relevant work as a prep cook, short-order cook, and telephone solicitor. At step five, he relied on the opinion of a vocational expert to find that there exists a significant number of jobs in the national economy that Ms. Roache can perform. The vocational expert testified that the following jobs in the following numbers exist for a person with Ms. Roache's RFC and vocational factors (age, education, and skill level): final assembler (over 175,000 jobs nationally, 900 local/regional jobs), dowel inspector (over 60,000 national, 550 local/regional), and garment sorter (over 30,000 national, 400 local/regional). The ALJ also noted the vocational expert's opinion that, even if Ms. Roache's subjective complaints were given "great weight" and she were given a sit/stand option, a significant number of jobs would exist for her at the sedentary level.
Therefore, the ALJ found that Ms. Roache was not disabled and denied her application for S.S.I. benefits. The Social Security Administration's Appeals Council denied Ms. Roache's request to review the ALJ's decision, (R. 1), which made the ALJ's decision the final decision of the Commissioner on Ms. Roache's claim and the one that this Court reviews.
Ms. Roache asserts three errors in the ALJ's decision.
Listing 11.04 reads:
20 C.F.R. Part 404, Subpt. P, App. 1, Pt A. § 11.04. The referred 11.00C reads:
Id., § 11.00C.
Contrary to Ms. Roache's assertion, the ALJ did mention Dr. Leiphart's note that Ms. Roache reported using a cane, (R. 16, ¶ 4; 274), and he noted elsewhere in his decision, Ms. Roache's testimony and reports to other examiners that she needs or uses a cane, and her noted their and his own, observations of her use of a cane. The ALJ did not ignore this evidence.
(Brief, at 12.) Ms. Roache fails to identify the treating-examining physicians' functional findings that the ALJ rejected or the medical judgments that he made and the Court will not search the record for them or evaluate them. As such, the argument is forfeited and no error is shown. (Ms. Roache separately argues that the ALJ failed to call a medical expert specifically on the subject of listings medical equivalency, and that argument will be addressed below.)
That resolves the arguments that were clearly raised in Ms. Roache's brief in support of her complaint. In her reply, she argues that the ALJ's Listing 11.04 discussion was perfunctory: he did not relate the clinical findings in the record to any listing criteria and failed to adequately articulate why Ms. Roache's combined impairments did not meet or equal a listing criteria. (Plaintiff's Response to Defendant's Memorandum [doc. 22] ("Reply"), at 3, 4.) This argument was not clearly stated or developed in her opening brief and arguments or issues raised for the first time in reply are usually forfeited. Pain Center of SE Indiana, L.L.C. v. Origin Healthcare Solutions, L.L.C., No. 1:13-cv-133-RLY-DKL, Entry on Plaintiffs' Objection to the Magistrate Judge's May 8, 2015 Entry [doc. 258], at 12-13, 2015 WL 4548528, *6 (S.D. Ind., July 28, 2015). However, in its discretion, the Court will address the argument, particularly because the Commissioner addressed it in her response.
The ALJ's step-three discussion of Listing 11.04 consists, in its entirety, of the following:
(R. 13.) (For the remainder of his step-three discussion, the ALJ articulates his evaluation of record evidence against the criteria of Listing 12.04 (affective disorders).) This discussion is only a series of conclusory statements. The ALJ fails to describe the criteria of Listing 11.04B, what record evidence he considered as to each criterion, or why that evidence fails to satisfy the criterion. Although his articulation is certainly perfunctory, the Court must consider whether the ALJ's error is harmless "in other words, whether a remand might lead to a different result. Schomas v. Colvin, 732 F.3d 702, 708 (7th Cir. 2013) ("[W]e will not remand a case to the ALJ for further explanation if we can predict with great confidence that the result on remand would be the same."); Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989) ("No principle of administrative law or common sense requires us to remand a case in quest of a perfect opinion unless there is reason to believe that the remand might lead to a different result." (emphasis added)).
In her reply, Ms. Roache points to the following evidence of functional limitations that the ALJ failed to relate to the criteria of Listing 1104B. (Reply, at 3.)
R. 235-36 is a "History and Physical" report that was generated upon her admission to the hospital in October 2011 for her stroke. Under "History of Present Illness," the report notes that "[t]he patient reports a onset of right-sided numbness and weakness at 06:45 p.m." (R. 235.) The report notes "No limitation of motion" on musculoskeletal examination and "Normal tones and reflexes" on neurologic/motor examination. (R. 236.) Obviously, this report does not support a physical-examination finding of "impaired motor function" or "weakness and numbness in her right arm and right leg," as Ms. Roache contends. At most, the report records Ms. Roache's self report of an onset of numbness and weakness in some part or parts of her right side, and no report of motor impairment. There are no clinical findings or observations of motor-function impairment or right arm/leg weakness or numbness in this report.
R. 229 and 231 are within the October 2011 Discharge Summary for Ms. Roache's initial hospitalization. It records the admitting diagnosis of "Right-sided numbness and weakness" and that Ms. Roache "presents with acute onset right-sided numbness and weakness." (R. 229, 230.) As such, it only records her self-reported symptoms. Under the neurologic section of her physical-examination results, the report reads: "Mild weakness (5-/5) in the distal
R. 224-26 is a January 2012 Consultation Note that was generated during a second hospitalization, three months after Ms. Roache's initial stroke hospitalization. It notes that she was hospitalized "due to the presence of numbness over the right hand and right foot," (R. 224, 225), and that "[s]he denied . . . weakness over the upper or lower extremities. . . ." (R. 224). She appeared to be in no acute distress. (R. 225.) In the neurologic section of her physical examination, the physician wrote: "On motor exam over the upper extremities and lower extremities, the patient disclosed full strength in all muscle groups tested." (R. 225.) Gait examination was deferred. (Id.) Mr. Roache complained only of numbness, not weakness, and only over her right hand and foot, not all of her right arm and leg. She had full strength in both right extremities. No motor deficits were diagnosed. This reference does not support satisfaction of the Listing criteria.
Finally, R. 220-22 is the Discharge Summary for Ms. Roache's January 2012 hospitalization. It notes, again, that she was admitted for complaints of right-hand and — foot numbness, (R. 220), and "acute onset right hand/foot `tightness' and burning pain and right leg heaviness, states symptoms similar to prior [stroke] . . .," (R. 221). The report notes that "Neurology felt that her symptoms were likely residual from her [stroke] in 10/2011." (R. 221.) Her discharge condition was "Good" and she was discharged with no limitations. (R. 222.)
At most, Ms. Roache contends that these reports show that "[p]hysical examinations determined that she had weakness and numbness in her right arm and right leg." (Reply, at 11.) They do not. They record her reports of symptoms, not medical findings, and only the records of the October, 2011, hospitalization record her report of right-side numbness and weakness, that might include all of her leg and arm. The reports were generated in October, 2011, and January 2012, not later. None of the reports include findings or prescriptions of functional limitations in motor-function, gross or dexterous movement, or gait and station. In short, this evidence does not support a likelihood that, if given an opportunity to rearticulate on remand, the ALJ would find a "[s]ignificant and persistent disorganization of motor function in two extremities, resulting in sustained disturbance of gross and dexterous movements, or gait and station. . . ." as required by Listing 11.04B.
In sum, Ms. Roache has not shown any reason to believe that a remand for re-articulation of the ALJ's listings analysis might lead to a different decision on her claim. The evidence that she cites does not amount to substantial evidence that the criteria of Listing 11.04B are satisfied. While the Court agrees that the ALJ certainly should have better explained his evaluation of the relevant record evidence in relation to the listing criteria, the Court is convinced that the result on remand would be the same. Therefore, Ms. Roache has not shown grounds for a remand.
Therefore, Ms. Roache has not shown that the ALJ committed reversible error by not obtaining a new medical expert opinion on the question of Listings medical equivalence.
(Brief, at 18 (citations omitted).) Ms. Roache does not identify any errors in the ALJ's interpretations of evidence or opinions, his evaluations of the relative weights to accord the evidence and opinions, or his determination of Ms. Roache's credibility. Conclusorily stated as it is, Ms. Roache's argument amounts to only a plea for a different decision by the ALJ or for the Court to undertake a de novo review of the evidence. However, it is Ms. Roache's burden to show that the ALJ's decision is not supported by substantial evidence and the Court may not reweigh the evidence and come to its own claim decision. Ms. Roache has not shown that the ALJ's RFC determination is not supported by substantial evidence.
Ms. Roache has not shown that the Commissioner's denial of her claim for disability benefits is not supported by substantial evidence or is legally erroneous. Judgment should be entered in favor of the Commissioner, affirming her denial of Ms. Roache's claim.
Within fourteen days after being served with a copy of this recommendation, either party may serve and file specific written objections thereto. 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b)(2). A district judge shall make a de novo determination of those portions of the recommendation to which objections are made. 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b)(3). Failure to file an objection might result in forfeiture of the right to de novo determination by a district judge and to review by the court of appeals of any portion of the recommendation to which an objection was not filed. Tumminaro v. Astrue, 671 F.3d 629, 633 (7th Cir. 2011); United States v. Pineda-Buenaventura, 622 F.3d 761, 777 (7th Cir. 2010); Schur v. L. A. Weight Loss Centers, Inc., 577 F.3d 752, 761 n. 7 (7th Cir. 2009); Kruger v. Apfel, 214 F.3d 784, 787 (7th Cir. 2000); Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999).
