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Sorg v. Colvin

United States District Court, N.D. Indiana, Fort Wayne Division

December 20, 2016

LYNDA SUE SORG, Plaintiff,
CAROLYN COLVIN, Acting Commissioner of the Social Security Administration, Defendant.



         The Plaintiff, Lynda Sue Sorg, seeks review of the final decision of the Commissioner of the Social Security Administration denying her application for Disability Insurance Benefits. She claims that she is unable to work due to a combination of physical and mental conditions.


         In November 2012, the Plaintiff filed a claim for disability insurance benefits, alleging disability beginning in June 2012. The state agency responsible for making disability determinations on behalf of the Commissioner denied the Plaintiff's claim initially and upon reconsideration. The Plaintiff sought appeal of those determinations and filed a request for a hearing before an Administrative Law Judge (ALJ). In February 2014, the Plaintiff, who was represented by an attorney, appeared and testified at a hearing before ALJ Patricia Melvin. The ALJ also heard testimony from a vocational expert (VE). In June 2014, the ALJ issued a written decision, in which she concluded that the Plaintiff was not disabled because she was capable of performing work as a cashier, retail marker, or sales attendant. The Plaintiff sought review of the ALJ's decision by the Appeals Council. In September 2015, the Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. See 20 C.F.R. § 404.981. The Plaintiff seeks judicial review under 42 U.S.C. § 405(g).


         The Social Security regulations set forth a five-step sequential evaluation process to be used in determining whether the claimant has established a disability. See 20 C.F.R. § 404.1520(a)(4)(i)-(v); see also 42 U.S.C. § 423(d)(1)(A) (defining a disability under the Social Security Act as being unable “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”); id. § 423(d)(2)(A) (requiring an applicant to show that 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”). The first step is to determine whether the claimant is presently engaged in substantial gainful activity (SGA). Here, the ALJ found that the Plaintiff was not engaged in SGA, so she moved to the second step, which is to determine whether the claimant had a “severe” impairment or combination of impairments.

         An impairment is “severe” if it significantly limits the claimant's physical or mental ability to do basic work activities. 20 C.F.R. § 404.1521(a). The ALJ determined that the Plaintiff's severe impairments were obesity and osteoarthritis of the right knee. The ALJ relied on the December 19, 2012, consultative exam of Dr. David Ringel, which assessed arthritis of the right knee. (R. 252-55.) The ALJ concluded that the Plaintiff's neuropathy, which was a residual condition of chemotherapy treatment for rectal cancer, was not a severe impairment because it only minimally affected her ability to engage in gainful employment. The ALJ noted at the hearing on February 25, 2014, that the Plaintiff complained about neuropathy beginning in November 2013, but that the Plaintiff had not mentioned it at a February 7, 2014, follow-up visit for her cancer treatments. The attending physician had instead noted that the Plaintiff was active and able to carry on all pre-disease performance without restriction. Additionally, any neuropathy had not met the duration requirement, and the efficacy of treatment, which had started shortly before the hearing, was not yet known. The ALJ also considered the Plaintiff's mental impairments of panic disorder with agoraphobia and depression, but found that they were also nonsevere. Specifically, the ALJ relied on the Report of Psychological Evaluation completed by the state agency psychologist, Andrew Miller, on December 27, 2012. (R. 256-59.) Out of the four broad functional areas that are set out in the regulations for evaluating mental disorders, the Plaintiff only experienced limitations in one: the area of concentration, persistence, or pace. The limitations in that area were described as mild.

         At step three, the ALJ considered whether the Plaintiff's impairments, or combination of impairments, met or medically equaled the severity of one of the impairments listed by the Administration as being so severe that it presumptively precludes SGA. See 20 C.F.R. Pt. 404, Subpt. P, App. 1. The ALJ concluded that the Plaintiff's osteoarthritis of the right knee did not meet or equal a listed impairment.

         Next, the ALJ was required, at step four, to determine the Plaintiff's residual functional capacity (RFC), which is an assessment of the claimant's ability to perform sustained work-related physical and mental activities in light of her impairments. SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996). The ALJ concluded that the Plaintiff had the RFC to lift or carry twenty pounds occasionally and ten pounds frequently, could stand or walk for six hours in an eight-hour day, as well as sit for six hours in an eight-hour day. The Plaintiff could never climb ladders, ropes, or scaffolds, and only occasionally climb ramps and stairs, crouch, or crawl. However, she could kneel frequently. In making these findings, the ALJ considered the Plaintiff's testimony regarding her symptoms related to her right knee but did not find entirely credible her statements concerning the intensity, persistence, and limiting effects of those symptoms. The ALJ noted that during the Plaintiff's consultative exam, she was able to get on and off the exam table with no trouble, her gait was completely normal, and she needed no assistive devices. She also had good range of motion in her right knee. The ALJ acknowledged the Plaintiff's testimony that she had right knee pain that was aggravated by prolonged standing. The ALJ gave great weight to the Plaintiff's testimony that she could carry fifteen to twenty pounds. She also gave great weight to the state agency mental consultant's opinion that the Plaintiff did not have a severe mental impairment, which she stated was consistent with the psychological consultant's observations. The ALJ assigned no weight to the functional assessment (for less than sedentary range of exertion) completed by Dr. Shalini on November 1, 2013, stating that it was based on the Plaintiff's reports and problems within the last twelve months, while more recent notes from Fort Wayne Medial Oncology and Hematology noted that the Plaintiff was fully active and able to carry on all pre-disease performance without restriction.

         Although the Plaintiff had no past relevant work, at the final step of the evaluation, the ALJ determined that the Plaintiff could perform work as a cashier, a retail marker, or a sales attendant. These jobs were typically performed at the light level, and were unskilled.


         The decision of the ALJ is the final decision of the Commissioner when the Appeals Council denies a request for review. Liskowitz v. Astrue, 559 F.3d 736, 739 (7th Cir. 2009). A court will affirm the Commissioner's findings of fact and denial of disability benefits if they are supported by substantial evidence. Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). It must be “more than a scintilla but may be less than a preponderance.” Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007). Even if “reasonable minds could differ” about the disability status of the claimant, the court must affirm the Commissioner's decision as long as it is adequately supported. Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008).

         It is the duty of the ALJ to weigh the evidence, resolve material conflicts, make independent findings of fact, and dispose of the case accordingly. Perales, 402 U.S. at 399-400. In this substantial-evidence determination, the court considers the entire administrative record but does not reweigh evidence, resolve conflicts, decide questions of credibility, or substitute the court's own judgment for that of the Commissioner. Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003). Nevertheless, the court conducts a “critical review of the evidence” before affirming the Commissioner's decision, and the decision cannot stand if it lacks evidentiary support or an inadequate discussion of the issues. Id.

         The ALJ is not required to address every piece of evidence or testimony presented, but the ALJ must provide a “logical bridge” between the evidence and the conclusions. Terry v. Astrue, 580 F.3d 471, 475 (7th Cir. 2009). If the Commissioner commits an error of law, remand is warranted without regard to the volume of ...

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