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Nelson v. Colvin

United States District Court, N.D. Indiana

November 21, 2014

MELISSA S. NELSON, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

OPINION AND ORDER

WILLIAM C. LEE, District Judge.

This matter is before the court for judicial review of a final decision of the defendant Commissioner of Social Security Administration denying Plaintiff's application for Disability Insurance Benefits (DIB)and Supplemental Security Income (SSI) as provided for in the Social Security Act. 42 U.S.C. § 405(g). Section 205(g) of the Act provides, inter alia, "[a]s part of his answer, the [Commissioner] shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based. The court shall have the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the [Commissioner], with or without remanding the case for a rehearing." It also provides, "[t]he findings of the [Commissioner] as to any fact, if supported by substantial evidence, shall be conclusive...." 42 U.S.C. §405(g).

The law provides that an applicant for disability insurance benefits must establish an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to last for a continuous period of not less than 12 months...." 42 U.S.C. §416(i)(1); 42 U.S.C. §423(d)(1)(A). A physical or mental impairment is "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. §423(d)(3). It is not enough for a plaintiff to establish that an impairment exists. It must be shown that the impairment is severe enough to preclude the plaintiff from engaging in substantial gainful activity. Gotshaw v. Ribicoff, 307 F.2d 840 (7th Cir. 1962), cert. denied, 372 U.S. 945 (1963); Garcia v. Califano, 463 F.Supp. 1098 (N.D.Ill. 1979). It is well established that the burden of proving entitlement to disability insurance benefits is on the plaintiff. See Jeralds v. Richardson, 445 F.2d 36 (7th Cir. 1971); Kutchman v. Cohen, 425 F.2d 20 (7th Cir. 1970).

Given the foregoing framework, "[t]he question before [this court] is whether the record as a whole contains substantial evidence to support the [Commissioner's] findings." Garfield v. Schweiker, 732 F.2d 605, 607 (7th Cir. 1984) citing Whitney v. Schweiker, 695 F.2d 784, 786 (7th Cir. 1982); 42 U.S.C. §405(g). "Substantial evidence is defined as' more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Rhoderick v. Heckler, 737 F.2d 714, 715 (7th Cir. 1984) quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1410, 1427 (1971); see Allen v. Weinberger, 552 F.2d 781, 784 (7th Cir. 1977). "If the record contains such support [it] must [be] affirmed, 42 U.S.C. §405(g), unless there has been an error of law." Garfield, supra at 607; see also Schnoll v. Harris, 636 F.2d 1146, 1150 (7th Cir. 1980).

In the present matter, after consideration of the entire record, the Administrative Law Judge ("ALJ") made the following findings:

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2012.
2. The claimant has not engaged in substanitial gainful activity since July 29, 2010, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq. )
3. The claimant has the following severe impairments: degenerative disc disease with herniations, stenosis, and cervical and lumbar radiculopathy, failed back syndrome status post diskectomy, osteoarthritis and edema of the right knee, left knee effusion, degenerative joint disease of the right foot, heel spurs of the right foot, bilateral tarsal tunnel syndrome, plantar fasciitis, asthma, chronic obstructive pulmonary disease ("COPD"), sleep apnea, hypertension, obesity, fibromyalgia, bilateral Eustachian tube dysfunction, depression, anxiety, and panic disorder without agoraphobia (20 CFR 404.1520(c) and 416.920(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a). Specifically, she can lift up to 10 pounds occasionally. She can stand or walk for approximately 2 hours per 8-hour workday, and sit for approximately 8 hours per 8-hour workday. The claimant is limited to work that allows her to sit or stand alternatively. She can only sit for 30 minutes at one time, and stand or walk each for 10 to 15 minutes at one time. She could never do any pushing or pulling of any hand/arm controls or operate foot controls. She can occasionally balance and climb ramps, but never crouch, kneel, crawl, or climb ladders, ropes, scaffolds, or stairs. She can occasionally stoop, but never stoop repetitively below the waist. She should never do any overhead reaching. The claimant should avoid concentrated exposure to extreme cold, extreme heat, wetness or humidity, and irritants, such as, fumes, odors, dust and gases. The claimant should avoid all exposure to unprotected heights, dangerous machinery, and slippery or uneven walking surfaces. The claimant is limited to work that allows her to use a cane to stand and walk. The claimant is limited to work that will allow her to be off task 10 percent of the workday, in addition to regularly scheduled breaks. The work should be limited to simple, routine, and repetitive tasks involving only simple, work-related decisions with few, if any work place changes. The claimant should have only occasional interaction with the public and coworkers. The claimant is limited to work that allows one absence, on average, per month with absence defined as failing to appear for a scheduled shift; tardy for a scheduled shift; or leaving early from a scheduled shift.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on September 16, 1969 and was 40 years old, which is defined as a younger individual age 18-44, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not an issue in this case because the claimant's past relevant work is unskilled (20 CFR 404.1568 and 416.968).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from July 29, 2010, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

(Tr. 22-37).

Based upon these findings, the ALJ determined that Plaintiff was not entitled to disability insurance benefits. The ALJ's decision became the final agency decision when the Appeals Council denied review. This appeal followed.

A five step test has been established to determine whether a claimant is disabled. See Singleton v. Bowen, 841 F.2d 710, 711 (7th Cir. 1988); Bowen v. Yuckert, 107 S.Ct. 2287, 2290-91 (1987). The United States Court of Appeals for the Seventh Circuit has summarized that test as follows:

The following steps are addressed in order: (1) Is the claimant presently unemployed? (2) Is the claimant's impairment "severe"? (3) Does the impairment meet or exceed one of a list of specific impairments? (4) Is the claimant unable to perform his or her former occupation? (5) Is the claimant unable to perform any other work within the economy? 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, stops the inquiry and leads to a determination that the claimant is not disabled.

Nelson v. Bowen, 855 F.2d 503, 504 n.2 (7th Cir. 1988); Zalewski v. Heckler, 760 F.2d 160, 162n.2 (7th Cir. 1985); accord Halvorsen v. Heckler, 743 F.2d 1221 (7th Cir. 1984). From the nature of the ALJ's decision to deny benefits, it is clear that step five was the determinative inquiry.

Plaintiff filed her application for a period of disability and disability insurance benefits under Title II of the Social Security Act on September 21, 2010 and Supplemental Security Income under Title XVI of the Social Security Act on June 14, 2011. After the Social Security Administration denied her application initially on December 21, 2010, and upon reconsideration on March 7, 2011, Plaintiff timely filed a request for a hearing on March 15, 2011. A hearing was held before Administrative Law Judge T. Whitaker ("ALJ") on May 10, 2012, in Indianapolis, Indiana. Plaintiff appeared and testified at the hearing. She was represented by counsel, Attorney Charles J. Myers. Gail K. Corn testified as an impartial vocational expert ("VE"). The ALJ rendered a decision on August 6, 2012 denying Plaintiff's claim. Plaintiff timely filed a Request for Review of Hearing Decision on ...


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