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Magee v. Berryhill

United States District Court, N.D. Indiana, South Bend Division

June 21, 2017

VICKIE S. MAGEE, Plaintiff,
NANCY BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.



         Vickie S. Magee appeals the Social Security Administration's decision to deny her application for disability insurance benefits and supplemental security income for the period of time from January 18, 2006 to March 12, 2007. An administrative law judge found that Magee was not disabled within the meaning of the Social Security Act during this time period. Magee raises a number of challenges to this determination including that the ALJ erred by not consulting a medical advisor to assist in developing the record when inferring the disability onset date. Because I agree that the ALJ failed to adhere to an applicable Social Security Ruling and sufficiently develop the record so as to infer the disability onset date, I will reverse the ALJ's decision and remand on this issue.


         At the time of Magee's hearing before the ALJ on May 12, 2015, she was a 52-year-old woman who stood 5'3''tall and weighed 180 pounds. [DE 12 at 965.] After graduating high school in 1980, she took some college courses, but otherwise worked full-time. [Id. at 966.] Until August 2001, Magee worked as an office manager and bookkeeper. [Id. at 73.] As a bookkeeper, she frequently lifted boxes of files and computers weighing 25 to 50 pounds and walked up and down stairs. [Id. at 198.] That job also required “a great deal of concentration and the ability to multi-task.” [Id. at 204.]

         In August 2001, Magee was involved in a car accident. Her car was hit from behind and her head snapped back against the headrest. [Id. at 269, 335.] She did not immediately seek medical attention, but developed increasing pain and dizziness two weeks later. [Id.] Magee has been unemployed since her accident. [Id. at 55.] In October 2001, Magee attempted to return to work, but was unable to perform any work activities. [Id. at 265-66.] Her employer advised her not to return to work. [Id.] Furthermore, Magee testified that she was undergoing several treatments and “never felt up to getting a job.” [Id. at 55.] She says that she is disabled by neck and back pain, headaches, numbness in her arms, depression, and memory and concentration issues. [Id. at 970.]

         MRIs taken in October and December 2001 showed evidence of change in normal spine curvature, disc bulge, and post-traumatic soft tissue changes. [Id. at 265, 269.] At this time, the motor functions in all extremities and gait appeared normal. [Id. at 265.] Magee's condition appears to have deteriorated over time, ultimately resulting in a finding of disability starting March 13, 2007. [Id. at 895-908.] What brings us here today is the period of time leading up to that date during which Magee claims she was disabled, specifically January 18, 2006 to March 12, 2007. Unfortunately, the medical evidence from this time frame is lacking. During that period, Magee only saw a doctor twice. She consulted neurologist Dr. Richard Cristea in both May and November 2006. [Id. at 341-42.] Other than complaining of constant pain, she reported no new issues and said she felt well. [Id. at 335, 342.] Then, on March 13, 2007, Carl Hale, Psy.D. examined Magee and observed her gait to be slow and unstable. [Id. at 408.] Dr. Hale diagnosed a pain disorder due to psychological factors and a general medical condition with anxiety. [Id. at 411.] MRIs and an EMG taken in May 2007 demonstrated that Magee had degenerative and progressive symptoms consistent with carpal tunnel syndrome and lumbar spine issues. [Id. at 566.] The evidence, however, did not indicate the severity of Magee's spine pain. [Id.]

         This case has a complicated procedural history. Magee filed the relevant application for disability benefits and supplemental security income on January 9, 2007 and alleged a disability onset date of January 18, 2006. ALJ Mary Ann Poulose issued a partially favorable decision on June 25, 2009, finding claimant disabled and awarding benefits beginning on March 13, 2007, but not from the alleged onset date. [Id. at 555.] Magee then requested review by the Appeals Council and was denied. [Id.] She then appealed to this Court and Judge DeGuilio remanded the case for further proceedings and ordered the ALJ to consider the claimant's moderate limitations of concentration, persistence, and pace. [Id. at 597.] Following Judge DeGuilio's Order, the Appeals Council vacated the June 25, 2009 decision with respect to the period between January 18, 2006 and March 12, 2007, but kept the finding that Magee was disabled as of March 13, 2007, and remanded the case for further proceedings. [Id.] ALJ Scales held a hearing on January 8, 2013 and issued a decision on January 25, 2013 finding that Magee was not disabled during the relevant period. [Id. at 620.] On August 25, 2014, the Appeals Council once again remanded ALJ Scales' decision due to inadequate rationale for the ALJ's credibility finding. [Id. at 634.]

         ALJ Scales then held a third hearing and heard testimony from the claimant, a psychological expert, and a vocational expert. Magee testified that her most significant health issues during the period of January 2006 to March 2007 were her neck and back pain, which felt like “somebody was sticking hot nails in [her] neck, ” and depression. [Id. at 970-71.] She also said she had pain radiating up her head from her neck and daily headaches that lasted from two hours to three days and felt like “[her] skull was being crushed.” [Id. at 971.] Magee explained that these headaches caused her to spend hours lying down each afternoon and prevented her from doing household activities. [Id. at 972.] She also said that difficulties with her vision made her unable to drive. [Id. at 974.] Magee further testified that she had shooting pain down her arms and hand pain and numbness. [Id. at 976.] Without control of her hands, she said she could not independently do such activities as writing, cooking, or cleaning. [Id. at 977-79.] Furthermore, Magee testified that she had memory and concentration impairments that, in combination with her physical symptoms, would have prevented her from returning to work as a bookkeeper in 2006. [Id. at 981-82.]

         The psychological expert, Michael Rabin, Ph.D., opined that Magee's depression moderately limited her social functioning, concentration, persistence, and pace. [Id. at 995.] He recommended that she not deal with the general public but otherwise found no restrictions on her ability to follow instructions, make simple work decisions, or deal with supervisors and co-workers. [Id. at 997.] Dr. Rabin testified that, despite her depression, Magee would have been able to engage in high-level work in 2006. [Id.]

         After the hearing, the ALJ issued an unfavorable decision denying benefits from January 18, 2006 to March 12, 2007. [Id. at 555-72.] At Step One of the five-step disability evaluation process, she found that Magee met the insured status requirements of the Social Security Act and did not engage in substantial gainful activity. [Id. at 558.] At Step Two, the ALJ found that Magee had the following severe impairments: degenerative disc disease, myofascial pain syndrome, bilateral carpal tunnel syndrome, and depression. [Id. at 559.] However, she determined at Step Three that Magee did not have an impairment or set of impairments that met or medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. [Id.] At Step Four, the ALJ found that Magee had the residual functional capacity (RFC) to perform unskilled sedentary work, such as the work of a document preparer or final assembler. [Id. at 568, 571.]

         In reaching her conclusion, the ALJ found that the objective medical record did not support the claimant's allegations of chronic pain and extremely limited activities of daily living. [Id. at 565.] The ALJ's opinion relies on the fact that Magee did not report frequent, severe pain during her visits with Dr. Cristea during the relevant time period; instead, the treatment notes indicated that she felt well. [Id.] The ALJ adopted the opinion of Dr. Rabin and found that Magee was capable of performing a high level of unskilled work. [Id. at 568.]


         In evaluating Magee's arguments as to how the ALJ erred, I must keep in mind that judicial review of the Commissioner's decision is limited. If an ALJ's findings of fact are supported by “substantial evidence, ” then they must be sustained. See 42 U.S.C. § 405(g); Overman v. Astrue, 546 F.3d 456, 462 (7th Cir. 2008). Substantial evidence consists of “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Nelms v. Astrue, 553 F.3d 1093, 1097 (7th Cir. 2009) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). I cannot reweigh the evidence or substitute my judgment for the ALJ's, but I must decide whether the ALJ's onset date is supported by substantial evidence. Pugh v. Bowen, 870 F.2d 1271, 1279 (7th Cir. 2004).

         Magee raises three issues in her appeal, but I will focus on the first argument: whether the ALJ erred in not consulting a medical expert when determining the disability onset date? [DE 18 at 11.] Recall that the Commissioner previously decided that Magee was disabled beginning March 13, 2007. [DE 12 at 35.] Magee appeals for full benefits for the period between her alleged ...

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