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Pitman v. Berryhill

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

March 31, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1]Defendant.


          Andrew P. Rodovich United States Magistrate Judge

         This matter is before the court on petition for judicial review of the decision of the Commissioner filed by the plaintiff, Melissa M. Pitman, on November 24, 2015.[2] For the following reasons, the decision of the Commissioner is REMANDED.


         The plaintiff, Melissa Pitman, filed an application for Disability Insurance Benefits on April 16, 2012, alleging a disability onset date of January 8, 2008. (Tr. 23). The Disability Determination Bureau denied Pitman's application on July 12, 2012, and again upon reconsideration on August 23, 2012. (Tr. 23). Pitman subsequently filed a timely request for a hearing on September 20, 2012. (Tr. 23). A hearing was held on October 1, 2013, before Administrative Law Judge (ALJ) William D. Pierson, and the ALJ issued an unfavorable decision on April 22, 2014. (Tr. 23-46). Vocational expert (VE) Amy Kutschbach, Pitman, and Pitman's husband testified at the hearing. (Tr. 23). The Appeals Counsel denied review, making the ALJ's decision the final decision of the Commissioner. (Tr. 1-6).

         The ALJ found that Pitman last met the insured status requirements of the Social Security Act on June 30, 2012. (Tr. 25). At step one of the five step sequential analysis for determining whether an individual is disabled, the ALJ found that Pitman had not engaged in substantial gainful activity from her alleged onset date of January 8, 2008 through her date last insured of June 30, 2012. (Tr. 26). At step two, the ALJ determined that Pitman had the following severe impairments: cervical and lumbar degenerative disc disease, a history of asthma and bronchitis, chronic obstructive pulmonary disease, a history or right (dominant) carpal tunnel release surgery, left carpal tunnel syndrome, left shoulder pain, fibromyalgia, insomnia, sleep apnea, obesity, inflammatory arthritis, major depressive disorder, and post-traumatic stress disorder. (Tr. 26). The ALJ found that the above impairments had more than a minimal effect on Pitman's ability to work. (Tr. 26).

         At step three, the ALJ concluded that Pitman did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments. (Tr. 26). The ALJ determined that there was no evidence that Pitman had an exacerbated symptom or any additional impairment because of her obesity and that her obesity did not meet or equal a listing when considered singly or in combination with her other severe impairments. (Tr. 26).

         Specifically, the ALJ found that Pitman did not meet Listing 1.04, Disorders of the Spine, because there was no evidence of spinal arachnoiditis to satisfy part B or lumbar spinal stenosis that resulted in pseudo-claudication to satisfy part C. (Tr. 26-27). Also, the ALJ concluded that she failed to meet Listing 1.02, Major Dysfunction of a Joint, because there was no evidence that she could not use her upper extremities for fine and gross movements. (Tr. 27). Pitman did not meet Listing 3.02A, chronic pulmonary disease, because a May 2012 pulmonary function study yielded a post medication reading of 1.08, which exceeded the required level for Pitman's height. (Tr. 27).

         The ALJ has indicated that there was evidence that Pitman had symptoms under the paragraph A criteria for mental impairments, but that she did not satisfy the paragraph B criteria of listings 12.04 and 12.09, which required at least two of the following:

marked restriction of activities of daily living; marked difficulties in maintaining social functioning; marked difficulties in maintaining concentration, persistence, or pace; or repeated episodes of decompensation, each of extended duration.

(Tr. 27). The ALJ defined a marked limitation as more than moderate but less than extreme and repeated episodes of decompensation, each of extended duration, as three episodes within one year or once every four months with each episode lasting at least two weeks. (Tr. 27).

         Pitman's testimony indicated that she was limited in the above areas, however, the ALJ found that her allegations were not entirely credible. (Tr. 27). The ALJ found that Pitman's husband's reports were generally credible. (Tr. 27). Pitman's husband indicated that Pitman's physical conditions limited her daily activities. (Tr. 27). He reported that she played games on the computer until her back started to hurt and that she was unable to maintain her personal care due to back pain and shortness of breath. (Tr. 27). Also, he stated that she drove, shopped for groceries with the assistance of her daughter, and sometimes dusted and did laundry. (Tr. 27-28). However, she took breaks when she did the chores. (Tr. 28).

         Pitman's husband reported that she talked on the telephone once or twice a week, went out to eat about once a month, and got along well with authority figures. (Tr. 28). He stated that she could pay attention for 30 minutes and follow written instructions but at times she needed spoken instructions repeated. (Tr. 27-28). The ALJ assigned some weight to Pitman's husband's reports. (Tr. 28). The ALJ concluded that he had a motivation in Pitman receiving benefits but that his reports appeared honest and were not consistent with a finding of disability. (Tr. 28).

         The ALJ found that Pitman had mild restrictions in daily living activities. (Tr. 28). The ALJ indicated that her limitations were primarily due to her physical condition. (Tr. 28). Pitman testified that her children did the housework, dishes, and their own laundry. (Tr. 28). She stated that she cooked, but that she prepared meals that did not require her to stand for long periods of time. (Tr. 28). She reported that her daily activities included computer games, jigsaw puzzles, and watching television. (Tr. 28).

         The ALJ found that Pitman had mild limitations in her ability to maintain social functioning. (Tr. 28). Pitman testified that she did not have friends, but that she had a good relationship with her mother and occasionally went to lunch with her sister. (Tr. 28). The ALJ indicated that she was reasonably conversant and easy to interview at the consultative psychological evaluation. (Tr. 28). Also, the ALJ reported that Pitman interacted with healthcare providers without difficulty. (Tr. 28).

         The ALJ found that Pitman had moderate difficulties in concentration, persistence, or pace. (Tr. 28). The ALJ indicated that Pitman had numerous psychosocial stressors and ongoing pain, which caused distractions and created difficulties with sustained concentration and focus. (Tr. 28). However, Pitman drove herself to her consultative psychological evaluation, arrived on time, and understood most of the interview and examination questions. (Tr. 28). The examiner noted that Pitman's long-term memory was intact. (Tr. 28). Also, the examiner reported that Pitman gave a reasonably detailed description of activities from the previous day, recalled five digits forward and four backward, her arithmetic skills were well-developed, and that she did not have deficits in general knowledge, common sense, or verbal abstract reasoning. (Tr. 28). The examiner rated Pitman's overall level of functioning, Global Assessment of Functioning (GAF), at 65. (Tr. 29). The ALJ determined that Pitman's mental impairments did not cause at least two marked limitations or one marked limitation and repeated episode of decompensation, each of extended duration to satisfy paragraph B or paragraph C. (Tr. 29).

         The ALJ then assessed Pitman's residual functional capacity as follows:

through the last date insured the claimant has the residual functional capacity to perform a limited range of sedentary work as defined in 20 CFR 404.1567(a): except she can sit for six hours and stand/walk for two hours during an eight-hour workday, frequently bend and stoop in addition to what was required to sit, and lift up to ten pounds; she cannot use her upper extremities on a constant basis, but can frequently reach and perform fine and gross manipulation tasks; and as to postural changes she can occasionally kneel, crouch, balance, and climb stairs and ramps, but can never climb ladders, ropes, or scaffolds; with respect to her work environment, she can tolerate less than occasional exposure to concentrated amounts of fumes, dust, gases, and extreme cold; she retained the mental residual functional capacity to perform simple routine repetitive tasks; she can maintain a sufficient level of concentration to perform simple tasks and can remember simple work-like procedures.

(Tr. 29-30). The ALJ read and considered all the evidence of record and determined the RFC was more consistent with the medical findings, treatment records, and overall evidence in the record than the allegations made by Pitman. (Tr. 30). The ALJ also considered attorney Shull's argument that there was good cause to reopen the unfavorable decision issued by the prior ALJ on December 13, 2010. (Tr. 30). To support his argument, attorney Shull referenced Pitman's worsening depression and her new diagnoses of fibromyalgia, chronic obstructive pulmonary, sleep apnea, insomnia, vitamin D deficiency, and borderline diabetes. (Tr. 30). The ALJ concluded that new evidence existed, however, a detailed analysis showed that it was not material evidence. (Tr. 30). The ALJ determined that the new evidence was irrelevant and that it did not show that the prior decision was contrary to the weight of the evidence. (Tr. 30).

         The ALJ noted that the prior ALJ did not consider Pitman's diagnosis of fibromyalgia but that she did consider Pitman's subjective complaints. (Tr. 31). The ALJ found that Pitman's subjective complaints of pain in multiple areas and other symptoms were not different in nature and/or severity than the prior decision. (Tr. 31). After the December 23, 2010 decision, Dr. Rudy Kachmann reported that while an MRI study of the cervical and lumbar areas showed a lumbar degenerative disc disease it was nothing unusual. (Tr. 31-32). The ALJ noted that MRI's in August and November of 2012 revealed relatively unchanged findings. (Tr. 32).

         Pitman's diagnostic test results with respect to her left thumb, hands, wrists, left shoulder, and feet failed to show any additional significant findings that required greater functional limitations than those found in the prior decision. (Tr. 32). The prior ALJ considered Pitman's physical examinations by treating sources and a consultative examiner. (Tr. 32). The exams showed: normal gait; no difficulty walking; mild halting features getting on and off the exam table and out of a chair; limited range of motion in neck, back, hips, and ankles; intact motor power in the extremities; tenderness in the thoracic and lumbar spines; and normal fine-finger manipulation abilities. (Tr. 32).

         The prior ALJ did not specifically reference the May 13, 2009, evaluation by Dr. Michele Thurston, but the ALJ noted that it was in Pitman's file. (Tr. 32). Dr. Thurston did not diagnose Pitman with fibromyalgia, but she found tender points along the musculature in the paraspinal muscles and muscle knots in the scapula bilaterally. (Tr. 32). The ALJ found that evaluations after the December 13, 2010 decision did not reflect greater functional limitations. (Tr. 32). The ALJ indicated that the examination by Family Associates in February and April of 2011 showed that Pitman walked without any disturbance of gait. (Tr. 32-33). At the February 2012 exam, Dr. Kachmann noted that Pitman walked with a normal gait, but that she had tenderness in her neck, shoulder, low back, and right/left buttock areas. (Tr. 33). Dr. Monica Reddy in September of 2012 also reported full and painless range of motion of the lumbar, as well as the cervical spine. (Tr. 33). From September ...

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