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Wilkins v. Commissioner of Social Security Administration

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

February 8, 2017

MIKEL R. WILKINS, Plaintiff,



         The Plaintiff, Mikel R. Wilkins, seeks review of the final decision of the Commissioner of the Social Security Administration denying her application for Supplemental Security Income (SSI). The Plaintiff claims that she would be unable to maintain substantial gainful employment due to limitations brought about by her asthma, obesity, and type I diabetes.


         In September 2012, the Plaintiff, at age nineteen, filed a claim for SSI, alleging disability beginning on the application date. 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 May 2014, the Plaintiff, who was represented by an attorney, appeared and testified at a hearing before the ALJ. A vocational expert (VE) also testified. In October 2014, the ALJ issued a written decision, in which she concluded that the Plaintiff was not disabled because she was capable of performing unskilled light work as a cashier, retail marker, or sales attendant. The Plaintiff sought review of the ALJ's decision by the Appeals Council. In January 2016, 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, having never made any attempt at work, 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, insulin-dependent diabetes mellitus, and asthma. The ALJ also discussed the Plaintiff's depression, which was brought on by a stillborn birth in May 2012, but concluded that it did not cause more than minimal limitations in the Plaintiff's ability to perform basic mental work activities for a twelve-month period.

         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 impairments did not meet Listing 3.03 for asthma. Her diabetes did not meet a listing because there is no separate listing for diabetes, and the Plaintiff did not have diabetic symptoms that met or equaled any listing under another body system. The ALJ noted that there was no listing specifically addressing obesity, but that the ALJ would consider the aggravating effects of the Plaintiff's obesity on her other impairments.

         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 perform light work as defined in 20 C.F.R. § 416.967(b), which meant she could lift, carry, push, and pull twenty pounds occasionally and ten pounds frequently, and that she could stand or walk for six hours in an eight-hour day, as well as sit for six hours in an eight-hour day. For the Plaintiff's obesity, the ALJ imposed additional restrictions of avoiding concentrated exposure to wetness, and hazards of unprotected heights and slippery work conditions, and also imposed limitations of only occasionally climbing ramps and stairs, balancing, stooping, crouching, kneeling, or crawling. The Plaintiff could never climb ladders, ropes, or scaffolds. To address the limitations caused by her asthma, the ALJ concluded that the Plaintiff had to avoid exposure to extreme cold, and irritants such as fumes, odors, dust, gases, poorly ventilated areas, and chemicals.

         In making these findings, the ALJ considered the Plaintiff's testimony regarding the symptoms caused by her diabetes, particularly her testimony that her sugar level is high about four times per week, and that two to three times per week it would cause her to be unable to work. The ALJ acknowledged that the Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms. However, she did not find credible the Plaintiff's asserted inability to function two to three days per week. Rather, the ALJ thought that the record supported potential absences of one day per month. The ALJ gave great weight to the opinions of the state agency consultants that the Plaintiff could perform light work, but added more restrictive postural limitations due to obesity, and limitations on pulmonary irritants due to the Plaintiff's asthma.

         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 ALJ noted the VE's testimony that an absence rate of one day per month would generally be tolerated. “Thus, even if that limitation were added to the [Plaintiff's] residual functional capacity, [she] would not be precluded from all work.” (R. 26.)


         The Plaintiff has a high school diploma, but no employment history. She was nineteen years old when she applied for SSI. The Plaintiff was diagnosed with diabetes in 2006 at the age of twelve and had suffered from chronic asthma for years. According to the Plaintiff, her conditions became disabling on September 10, 2012.

         Prior to this alleged onset date, the Plaintiff saw Dr. Pamela Thomas for treatment and control of her diabetes. During her November 2010 visit, Dr. Thomas noted that the Plaintiff had missed some of her appointments and seemed to be taking only half the prescribed insulin dose based on pharmacy records. Further, Dr. Thomas observed that the Plaintiff's glucometer showed no useful blood sugar testing as the meter had the wrong date and time and the Plaintiff had only done sporadic testing. Dr. Thomas commented that the Plaintiff was “non-compliant with all aspects of her therapy.” (R. 226.) Dr. Thomas impressed upon the Plaintiff and her father the importance of meal planning, administering adequate insulin doses, and checking blood sugars four times per day.

         The Plaintiff did not continue to see Dr. Thomas after 2010, but relied on her primary care physician, Dr. Ashraf Hanna, to treat her diabetes. Her treatment records from December 2010 through 2011 show that she continued to experience wide fluctuations with her blood glucose and also had occasional flare-ups of asthma symptoms. The Plaintiff reported that her swings in blood sugar sometimes caused dizziness or headaches, but she denied experiencing any tingling, numbness, fainting, or vomiting. (R. 306, 312, 325, 332, 346.) Still, the Plaintiff went to the emergency room five times in 2011 for asthma attacks (R 360-418, 515, 541-88) and episodes of severe hyperglycemia (R. 190, 250-61, 481-501). Each time she was treated with steroids and/or intravenous insulin until she was stabilized and discharged within a couple of days. (Id.)

         After the Plaintiff learned she was pregnant with her first child in October 2011, she began seeing endocrinologist Dr. David Sorg to help better control her diabetes. Dr. Sorg's nurse practitioner, Loretta Bazur-Persing, counseled the Plaintiff on nutrition, carbohydrate counting, and proper calculations for insulin dosing. The Plaintiff continued to experience trouble regulating her blood sugars. (R. 520, 555.) However, the Plaintiff had no severe hyperglycemic incidents requiring treatment in the emergency room for almost an entire year, between October 2011 and September ...

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