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Bianco v. Colvin

United States District Court, N.D. Indiana

December 26, 2014

TRINA BIANCO, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


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, Widow's Benefits, and Supplemental Security Income as provided for in the Social Security Act. 42 U.S.C. § 401 et seq. 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 June 30, 2014.
2. The claimant has not engaged in substantial gainful activity since July 28, 2008, the application date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: multilevel degenerative disc disease, degenerative joint disease with tendonitis/bursitis, a dysthymic disorder, and obesity (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 light work as defined in 20 CFR 404.1567(b) and 416.967(b) except the claimant requires the option to alternate between sitting and standing for at least 5 minutes every 60 minutes (i.e. the claimant retains the ability to sit, stand, and or walk for 60 minutes at a time but no more, then she must assume another position for at least 5 minutes before resuming the prior position), however, she would not need to abandon her work station or lose concentration. The claimant can occasionally climb ramps and stairs but never ladders, ropes, or scaffolds, and she can occasionally balance, stoop, kneel, crouch, and or/crawl. The claimant cannot perform work requiring overhead reaching with the right upper extremity, but she can occasionally reach overhead with the left upper extremity. The claimant must avoid concentrated exposure to extreme cold, humidity, or significant changes in the barometric pressure. Visually, the claimant cannot perform work that requires good nighttime vision, and if the work requires the claimant to read fine print, she must be allowed to use a magnifying glass. The claimant is able to read large print books (i.e. 16 point font or larger) for up to 15 minutes, and she is able to see well enough to discriminate between small objects for handling or inspection, but she cannot perform work that requires protracted and very fine visual acuity for identification of very small marks or blemishes; however, she does retain the ability to visually detect gross abnormalities. Mentally, the claimant is limited to simple, routine, repetitive tasks that require only simple decision making. The claimant can chose [sic] among a limited number of anticipated options but she is not able to come up with creative solutions to novel situations. The claimant cannot retain large amounts of information in her working memory (i.e. the work must involve tasks that the claimant can address and move on, rather than keeping mental track of past work performance). The claimant can tolerate only occasional and minor changes in the work setting that do not require more than simple judgment. Lastly, the claimant requires work that can be accomplished by a person who is better dealing with the concrete, rather than the abstract.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on April 9, 1959 and was 49 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date. The claimant subsequently changed age category to closely approaching advanced age (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 material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled, " whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
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, and 416.969(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from July 28, 2008, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

(Tr. 25-40)

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.

Plaintiff filed her opening brief on June 30, 2013. On October 6, 2013, the defendant filed a memorandum in support of the Commissioner's decision, and on November 21, 2013, Plaintiff filed her reply. Upon full review of the record in this cause, this court is of the view that the ALJ's decision should be remanded.

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, 162 n.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 applications for SSI, DIB, and DWB on January 29, 2009, alleging a disability onset date of July 28, 2008. (Dkt. 13 at 434-35) The Disability Determination Bureau (DDB) denied the Plaintiff's claims on August 20, 2009, finding that her overall medical condition did not limit her ability to work. (Dkt. 13 at 170-80) She requested reconsideration (Dkt. 13 at 181-84), but her claims were denied again on December 9, 2009. (Dkt. 13 at 185-93)

Plaintiff filed a request for an administrative hearing on January 28, 2010. (Dkt. 13 at 195-96) On December 3, 2010, Plaintiff appeared for a hearing in Valparaiso, Indiana before Administrative Law Judge Edward P. Studzinksi of the Valparaiso, Indiana Office of Disability Adjudication and Review (ODAR). At this hearing, she was represented by an attorney. (Dkt. 13 at 145) On December 23, 2010, Judge Studzinski issued an unfavorable decision, concluding the claimant's impairments permitted the performance of work. (Dkt. 13 at 155-56) Plaintiff filed a request for review by the Appeals Council of the Office of Disability Adjudication and Review, and the Appeals Council remanded the case for another hearing on December 19, 2011. The Appeals Council found that the prior decision did not contain an adequate evaluation of the medical source opinion of Dr. Richard A. Lochner, M.D., and did not state the claimant's Residual Functional Capacity (RFC) in specific vocationally relevant terms. (Dkt. 13 at 162-66)

At her remanded hearing on June 12, 2012, Plaintiff again appeared before ALJ Studzinski; this time without an attorney. (Dkt. 13 at 23) ALJ Studzinski issued a second unfavorable decision on August 16, 2012, again finding Plaintiff could perform other work in the national economy. (Dkt. 13 at 39) Plaintiff again appealed to the Appeals Council, but the Appeals Council denied her request for review on November 15, 2013. (Dkt. 13 at 1)

Plaintiff was born on April 9, 1959. At the time of her second hearing, she was 53. (Dkt. 15-2 at 36) Plaintiff went as far as the eleventh grade at John Glenn High School in Walkerton, Indiana. (Dkt. 13 at 702) She earned a GED in 1987. (Dkt. 13 at 444, 702) Her work history includes working in a fiberglass factory, residential painting, and caring for the elderly. (Dkt. 13 at 440)

Plaintiff's first documented visit with Dr. Lochner was in July, 2007. At that time, Plaintiff complained of "nerves." Upon exam, Dr. Lochner noted no physical abnormality and he diagnosed anxiety syndrome, depression, and pain in back and neck. He suggested a course of counseling and wrote prescriptions for Valium and Vicodin. (Dkt. 13 at 559) Plaintiff saw Dr. Lochner several times in 2008 for medication refills. On November 10, 2008, however, Plaintiff complained of worsening neck pain, reporting "Painful when turning her head. Pain wakes her up at night. Some numbness in legs and ...

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