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Cole v. Colvin

United States District Court, S.D. Indiana, Indianapolis Division

April 1, 2015

GINA MARIE COLE, Plaintiff,
v.
CAROLYN W. COLVIN Acting Commissioner of the Social Security Administration, Defendant.

REPORT AND RECOMMENDATION

MARK J. DINSMORE, Magistrate Judge.

Plaintiff Gina Marie Cole ("Cole") requests judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner") denying her application for Social Security Disability Insurance Benefits ("DIB") pursuant to the Social Security Act ("the Act"). For the reasons set forth below, the Magistrate Judge recommends that the District Judge REVERSE the decision of the Commissioner and REMAND the matter for further proceedings.

I. Background

Cole filed her application for DIB on April 28, 2011, alleging an onset of disability of March 2, 2011 due to various impairments including ocular third nerve palsy, bulging discs, headaches, anxiety, and fibromyalgia.[1] [R. at 162.] Cole's application was denied initially on July 15, 2011 and denied on reconsideration on September 12, 2011. Cole timely requested a hearing, which was held before Administrative Law Judge Larry J. Butler ("ALJ") on May 30, 2013. The ALJ's December 31, 2013 decision also denied Cole's application for DIB, and on May 21, 2014 the Appeals Council denied Cole's request for review, making the ALJ's decision the final decision for the purposes of judicial review. Cole timely filed her complaint with this Court on July 17, 2014, which is now before the Court.

II. Legal Standard

To be eligible for DIB, a claimant must have a disability pursuant to 42 U.S.C. § 416.[2] Therein, disability is defined 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. § 416(i). In determining whether a claimant is disabled, the Commissioner employs a five-step sequential analysis: (1) if the claimant is engaged in substantial gainful activity, she is not disabled; (2) if the claimant does not have a "severe" impairment that significantly limits her ability to perform basic work activities, she is not disabled; (3) if the Commissioner determines that the claimant's impairment meets or medically equals any impairment that appears in the Listing of Impairments, 20 C.F.R. pt. 404, subpt. P, App. 1, the claimant is disabled; (4) if the claimant is not found to be disabled at step three and she is able to perform her past relevant work, she is not disabled; and (5) if the claimant can perform certain other available work, she is not disabled. 20 C.F.R. § 404.1520.

In reviewing the ALJ's decision, the ALJ's findings of fact are conclusive and must be upheld by this Court "so long as substantial evidence supports them and no error of law occurred." Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). The standard of substantial evidence is measured by whether "a reasonable mind might accept [the evidence] as adequate to support a conclusion." Powers v. Apfel, 207 F.3d 431, 434 (7th Cir. 2000) (quoting Diaz v. Chater, 55 F.3d 300, 305 (7th Cir. 1995)). This court may not reweigh the evidence or substitute its judgment for that of the ALJ, but may only determine whether or not substantial evidence supports the ALJ's conclusion. Overman v. Astrue, 546 F.3d 456, 462 (7th Cir. 2008). The ALJ "need not evaluate in writing every piece of testimony and evidence submitted, " Carlson v. Shalala, 999 F.2d 180, 181 (7th Cir. 1993), but the ALJ must consider "all the relevant evidence, " Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994). In order to be affirmed, the ALJ must articulate his analysis of the evidence in his decision; he must "build an accurate and logical bridge from the evidence to [his] conclusion." Dixon, 270 F.3d at 1176

III. The ALJ's Decision

The ALJ first determined that Cole meets the insured status requirements of the Act through December 31, 2011 and has not engaged in substantial gainful activity since her alleged onset date of March 2, 2011. [R. at 15.] At step two, the ALJ found that Cole has the following severe impairments, as defined by the Act: "left third nerve palsy, degenerative disc disease, and history of cervical discectomy and fusion surgeries." [R. at 15-16.] However, also at step two the ALJ found that Cole's fibromyalgia is not severe enough to significantly affect Cole's ability to perform basic work activities through the following reasoning:

The claimant has alleged several medically determinable impairments which are non-severe. The medical records contain references to the claimant having a history of fibromyalgia. The claimant's medical records contain no signs, symptoms, or laboratory findings to support a diagnosis of Fibromyalgia, and the claimant's treating doctors gave no indication of its current existence. The other references to fibromyalgia in the record appear to be based on the claimant's selfreported history and are not supported by signs, symptoms, or laboratory findings. In fact, when asked how the claimant's fibromyalgia is being treated, she testified that she is trying to watch her diet to see if that helps.
Dr. George Tzetzo performed and [sic] Internal Medicine Evaluation on the claimant on July 5, 2011, and commented that the claimant "thinks she suffers from fibromyalgia." After his physical examination he only diagnosed the claimant, with respect to this issue, as "fibromyalgia by history." Accordingly, the undersigned finds that the claimant's fibromyalgia does not significantly affect the claimant's ability to perform basic work activities and is therefore non-severe.

[ Id. (internal citations omitted).] At step three, the ALJ then quickly found that Cole does not have an impairment or combination of impairments that meet or medical equal a listed impairment "of any section of Appendix 1." [R. at 16.]

After step three but before step four, the ALJ, after "careful consideration of the entire record, " determined that Cole has the residual functional capacity (RFC) to perform "the full range of light work." [ Id. ] Specifically, the ALJ found that Cole can lift, carry, or pull up to twenty pounds occasionally and ten pounds frequently; can stand, walk, and sit about six hours each per eight hour work day each; and can perform all other hand and foot controls with no limitations. [ Id. ] In reaching this RFC, the ALJ relied on the following relevant conclusions and assertions in finding that "the medical evidence of record does not support [Cole's] allegations of disabling pain, symptoms and impairments": Cole is able to perform many daily activities, such as sitting in her backyard, listening to audiobooks, visiting her daughter, showering, and making sandwiches [R. at 18], Cole's defense that there is sparse medical treatment because she could not afford medical care should not be excused because she was aware of free and reduced cost health care and she could have applied for Medicaid [ id. ], Cole refused additional nerve block injections from Dr. Isaacson to help treat her chronic pain [R. at 19], and the records from Cole's chiropractor are sporadic and chiropractors' opinions are not "medically acceptable" within the meaning of the regulations [ id. ]. The ALJ does not address Cole's allegations of fatigue except to state summarily that "[t]hough [Cole] alleges daily headaches, nausea, and fatigue, she is not being treated for these symptoms, and they do not prevent her from performing a wide range of activities of daily living." [R. at 20.] With regard to the weight of the evidence, the ALJ afforded significant weight to the opinion of Dr. George Tzetzo, generally assigned "controlling weight to the records and opinions of the treating physicians, " generally accepted "the limited treatment records, " and concluded that Cole is "not fully credible" because her statements are "inconsistent with the objective evidence." [R. at 21.]

Having concluded that Cole is capable of performing the full range of light work, the ALJ moved on to step four to determine whether Cole is capable of performing her past relevant work. [R. at 21.] Although her past relevant work as a receptionist is listed as semi-skilled work, the ALJ found that, because it is sedentary work that would not expose Cole to hazards and that would allow her to wear glasses, Cole is capable of performing her past relevant work as a receptionist. [R. at 21.] Accordingly, the ALJ decided that Cole was not disabled, as ...


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