United States District Court, N.D. Indiana, Fort Wayne Division
MELISSA M. PITMAN, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
OPINION AND ORDER
P. Rodovich United States Magistrate Judge
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. For the following
reasons, the decision of the Commissioner is REMANDED.
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).
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).
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.
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).
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
(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).
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).
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).
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).
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).
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).
then assessed Pitman's residual functional capacity as
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).
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).
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).
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 ...