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Williams v. Berryhill

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

September 5, 2017

GENE WILLIAMS, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          OPINION AND ORDER

          CHIEF JUDGE THERESA L. SPRINGMANN UNITED STATES DISTRICT COURT

         This case was transferred to the undersigned for all further proceedings under General Order 2017-4 [ECF No. 26] effective May 1, 2017. The Plaintiff, Gene Williams, on behalf of Pamela Townsend, now deceased, seeks review of the final decision of the Commissioner of the Social Security Administration denying her application for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI). Mr. Williams claims that Ms. Townsend was unable to maintain substantial gainful employment due to limitations brought about by various physical and psychological impairments. The Court finds that the Administrative Law Judge (ALJ) did not fulfill her affirmative obligation to inquire whether there was a conflict between the Vocational Expert's (VE) testimony and the Dictionary of Occupational Titles (DOT), and remands this matter back to the ALJ.

         PROCEDURAL HISTORY [1]

         This case has an extensive procedural history going back over fifteen years. Most relevant here are the events that occurred after Ms. Townsend passed away in October 2011. Prior to her passing, this matter was before the ALJ after the Court remanded the decision back to the Commissioner in 2007.F[2] In November 2011, Ms. Townsend's father filed a notice to substitute himself as a party (R. 263, 382).

         In January 2012, after a hearing in May 2011 in which neither Ms. Townsend nor her father testified, the ALJ issued a written decision, concluding that Ms. Townsend was not disabled at any time before November 1, 2008, but became disabled on that date and continued to be disabled through the date of her death. (R. 252-62); see 20 C.F.R. § 404.503(b). The ALJ explained that before November 1, 2008, Ms. Townsend retained the residual functional capacity (RFC) to perform a reduced range of light work as well as her past relevant work as a store manager, cashier, and quality inspector. (R. 252-59.) The ALJ found that beginning November 1, 2008, Ms. Townsend retained the RFC to perform a reduced range of sedentary work, but was unable to perform her past relevant work, and there were no jobs that existed in significant numbers in the national economy that she was able to perform. (Id.)

         In May 2012, Mr. Williams appealed ALJ Stam's decision to the Court. (R. 1222.) In September 2013, the Court affirmed ALJ Stam's partially favorable decision and entered judgment in favor of the Commissioner. Williams v. Commissioner of Social Security, No. 12-cv-153-JEM (N.D. Ind. Sept. 23, 2013). In November 2013, Mr. Williams filed a notice of appeal, and in September 2014, the Seventh Circuit reversed and remanded the case back to the Commissioner. Williams v. Colvin, 757 F.3d 610, 615 (7th Cir. 2014). In its Opinion, the Seventh Circuit found that the ALJ committed a multitude of errors, including finding that Ms. Townsend's only medically determinable impairment was fibromyalgia; not considering the combined effects of all of her impairments; amplifying minimal limitations; and not asking questions of Ms. Townsend and her father. Id. at 613-15. “The errors . . . identified, taken together, require[d] reversal of the district court's decision and a remand to the Social Security Administration for a redetermination of the date on which [the Plaintiff] became totally disabled and thus eligible for disability insurance benefits.” Id. “If that date was earlier than June 30, 2006 (the date of ‘last insured, ' which means the date on which she ceased to be covered by social security disability insurance), her father is entitled to his daughter's disability insurance benefits from that date until the date of her death.” Id.

         The Appeals Council then remanded the case back to ALJ Stam, instructing her to follow the Seventh Circuit's opinion and order, and to only consider the period before November 1, 2008.[3] (R. 1219-20.)

         In March 2015, the Plaintiff's father, who was represented by an attorney, appeared and testified at a hearing before ALJ Stam, as did the VE and a medical expert. (R. 227-46.) ALJ Stam issued a written decision in June 2015 in which she concluded that from May 1, 2002, the Plaintiff's initial onset date, through October 31, 2008, the date before she was previously found to be disabled, the Plaintiff was not disabled because she retained the RFC to perform a reduced range of sedentary work, as well as other jobs that existed in significant numbers in the national economy. (R. 1144-62.)

         The Plaintiff filed the Complaint [ECF No. 1] on September 28, 2015, appealing this decision. The Court must now decide whether to affirm ALJ Stam's decision that the Plaintiff was not disabled from May 1, 2002, through October 31, 2008.

         THE ALJ's HOLDING[4]

         Disability is defined as the “inability 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.” 42 U.S.C. § 423(d)(1)(A). To be found disabled, a claimant must demonstrate that her physical or mental limitations prevent her from doing not only her previous work, but alsoany other kind of gainful employment which exists in the national economy, considering her age, education, and work experience. § 423(d)(2)(A).

         An ALJ conducts a five-step inquiry in deciding whether to grant or deny benefits. 20 C.F.R. § 404.1520. The first step is to determine whether the claimant no longer engages in substantial gainful activity (SGA). Id. In the case at hand, the Plaintiff met the insured status requirements of the Social Security Act only through June 30, 2006. (R. 1147.)

         In step two, the ALJ determines whether the claimant has a severe impairment limiting the ability to do basic work activities under § 404.1520(c). Here, the ALJ determined that the Plaintiff had severe impairments during the period of May 1, 2002, through October 31, 2008, the alleged onset date, including post-traumatic stress disorder, a history of substance abuse, chronic headaches, fibromyalgia, and chronic obstructive pulmonary disease. (Id.); 20 C.F.R. §§ 404.1520(c), 416.920(c). The ALJ found that these impairments caused more than minimal limits in the Plaintiff's ability to perform the basic mental and physical demands of work and had each lasted at least 12 months, the duration requirement for severe impairments.

         Step three requires the ALJ to “consider the medical severity of [the] impairment” to determine whether the impairment “meets or equals one of [the] listings in appendix 1 . . . .” §§ 404.1520(a)(4)(iii). If a claimant's impairment(s), considered singly or in combination with other impairments, rises to this level, he earns a presumption of disability “without considering [his] age, education, and work experience.” § 404.1520(d). But, if the impairment(s), either singly or in combination, falls short, an ALJ must move to step four and examine the claimant's “residual functional capacity” (RFC)-the types of things he can still do physically, despite his limitations-to determine whether he can perform this “past relevant work, ” § 404.1520(a)(4)(iv), or whether the claimant can “make an adjustment to other work” given the claimant's “age, education, and work experience.” § 404.1520(a)(4)(v).

         In the case at hand, the ALJ determined that the Plaintiff's impairments did not meet or equal any of the listings in Appendix 1 and that she had the RFC to perform light work, as defined by § 404.1567(b). (R. 1147.) Specifically, the ALJ held that the Plaintiff had the residual functional capacity to perform sedentary work as defined in 20 C.F.R. § 404.1567(a) and 416.957(a), lifting no more than ten pounds, except that the Plaintiff could not climb ladders, ropes or scaffolds; could occasionally climb ramps and stairs, balance, stoop, kneel, crouch and crawl; she required the use of a cane to walk; and she had to avoid concentrated exposure to pulmonary irritants such as fumes, dust, gases, and poorly ventilated areas. Mentally, the Plaintiff could not work around the public, but could tolerate brief and superficial interaction with coworkers and supervisors; she could perform simple routine tasks in a relatively unchanging setting or process, with no more than concrete judgment and no fast pace work required. (R. 1147.)

         The ALJ found that the Plaintiff's medically determinable impairments could reasonably be expected to cause some of the alleged symptoms. (R. 1154.) But the ALJ found that the Plaintiff's past statements and her father's statements concerning the intensity, persistence, and limiting effects of these symptoms were not entirely credible. (Id.)

         The ALJ analyzed the record and determined that the Plaintiff was not disabled. The ALJ found that the Plaintiff's impairments, either singly or in combination, did not meet or medically equal the severity of a listed section. The ALJ then assessed the Plaintiff's RFC by evaluating the objective medical evidence, the medical source opinion evidence, and the Plaintiff's subjective symptoms. The ALJ noted that at the prior hearings, the Plaintiff testified that she had leg tremors and fell frequently. (Id.) The Plaintiff also said that she needed to use a cane to walk because of these tremors and arthritis pain in her knees. (Id.) The Plaintiff also testified that she had chronic headaches and severe pain all over her body from fibromyalgia. (Id.) The Plaintiff took Neurontin, Duragesic, and Darvocet N100 for pain at first, and then was administered methadone for several years. (Id.) The Plaintiff reported a reduction in pain with methadone. (Id.) The ALJ noted that both medical experts at the hearings testified that a diagnosis of fibromyalgia was supported in the medical records. (Id.) The ALJ took into consideration the effects of fibromyalgia, both physically and mentally, determining the Plaintiff's RFC.

         The ALJ also took into account the Plaintiff's significant history of abusing crack cocaine, and noted that it was not entirely clear how many of her symptoms were caused by residuals from that abuse. (Id. at 1155.) The ALJ noted that the Plaintiff used a cane to ambulate throughout the relevant period because her gait was antalgic. (Id.) The ALJ noted that the Plaintiff consistently complained of sleep problems that might have caused some fatigue and loss of energy during the day, whether the sleep problems were caused by physical pain, obstructive sleep apnea, PTSD, or night terrors. (Id.) The ALJ stated that these were all reasons why the Plaintiff could not sustain more than sedentary exertion after the alleged onset date. (Id.)

         The ALJ noted that it was not clear that any physician prescribed the use of a cane before 2009, but all the records reflected that the Plaintiff did, in fact, use one cane to walk when she left her home. (Id.) The ALJ included this in the Plaintiff's RFC as well. (Id.) The ALJ stated that the need to use a cane, along with the Plaintiff's reports of limited stamina, limited her to the sedentary level of exertion because she could not stand or walk in combination more than two hours out of an eight-hour workday. (Id.) And she could not lift or carry more than ten pounds during this period. (Id.)

         The ALJ decided that the record did not support greater limitations in mental or physical functioning than stated in the RFC. (Id. at 1159.) The ALJ noted that though it was clear that the Plaintiff had limited daily activities based upon the Plaintiff's testimony and Mr. William's testimony, it was not clear that this was due to her medical issues rather than a habit or personal choice. (Id.) The ALJ observed that Mr. Williams admitted at the last hearing that his recollection and memory of the relevant period had become somewhat vague due to the passage in time. (Id.) The ALJ concluded that the credibility of Mr. Williams's testimony was reduced because more than ten years had elapsed since the alleged onset date. (Id.) The ALJ also concluded that he could not infer from the Plaintiff's death from lung embolism that her COPD was causing more limits than the RFC provided for. (Id.) The ALJ stated that this was because there were too many intervening years between 2008 and 2011, the year of the Plaintiff's death. (Id.)

         The ALJ noted that Dr. Panszi indicated in 2009 that there had been a significant deterioration in the Plaintiff's health since he first treated her in 2002. (Id.) And by 2009, he did not think she could still work. (Id.) The ALJ noted that Dr. Panszi's opinion was the basis for the prior decision that the Plaintiff could not perform more than sedentary exertion at the time she attained age 50, when she then was found to be disabled under the medical-vocational grid rules as of November 1, 2008. (Id.)

         The ALJ, taking into account the combined effects of the Plaintiff's mental and physical conditions, both severe and nonsevere, concluded that the Plaintiff could not have performed more than a limited range of sedentary exertion since May 1, 2002, the alleged onset date, and did have some mental restrictions during the relevant period. On the other hand, the ALJ noted that both of the medical experts at the last two hearings did not think that the Plaintiff's physical impairments during the relevant period would have precluded the performance of sedentary work, and the reviewing State agency physicians also concluded that the Plaintiff remained capable of performing some work, first at the medium level of exertion in June 2003, and then at the light level of exertion in December 2003. (Id.) The ALJ noted that the State Agency found that the Plaintiff could perform medium exertion again in August 2005. (Id.) But by January 2010, the reviewing physicians noted that the Plaintiff could perform no more than sedentary exertion. (Id.)

         The ALJ noted that the Plaintiff had enough pain and problems with ambulation in spite of treatment to limit her to no more than the sedentary level of exertion throughout the relevant period. (Id.) As a result, the ALJ gave limited weight to the opinions of the State Agency physicians. (Id.) On the other hand, the State Agency finding that the Plaintiff remained capable of performing some kinds of work in spite of her impairments was given some weight. (Id.) The ALJ found that the sedentary level of exertion was more appropriate than the light level of exertion when the Plaintiff's combination of mental and physical impairments was looked at because there was some fatigue present that could have been due to mental impairments and poor sleep from PTSD as well as due to pain. (Id.) In addition, the use of a cane while standing and walking is a barrier to light work. (Id.)

         After giving the reasons for the Plaintiff's RFC, the ALJ next determined that based upon the vocational expert's testimony, the Plaintiff was unable to perform past relevant work during the period from May 2002, through October 31, 2008. (Id. at 1160.) Lastly, the ALJ determined that given the Plaintiff's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the Plaintiff could have performed during that period. (Id.) The ALJ noted that the vocational expert testified that the Plaintiff could perform the jobs of addresser (DOT 209.587-010, SVP 2, approximately 200 jobs in Indiana and 34, 000 jobs nationally), surveillance system monitor (DOT 379.3670-010, SVP 2, 200 jobs in Indiana and 15, 500 jobs nationally), and document preparer (DOT 249.587-019, SVP 2, 16, 000 jobs in Indiana and 790, 00 jobs nationally). (Id.)

         STANDARD OF REVIEW

         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 substantial evidence supports them. 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 is the duty of the ALJ to weigh the evidence, resolve material conflicts, make independent findings of fact, and dispose of the case accordingly. Richardson, 402 U.S. at 399- 400. In a substantial-evidence determination, the Court considers the entire administrative record but does not reweigh the evidence, resolve conflicts, decide questions of credibility, or substitute the court's judgment for that of the Commissioner. Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003). In other words, 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.

         When an ALJ recommends that the Agency deny benefits, the ALJ must first “provide a logical bridge between the evidence and [her] conclusions.” Terry v. Astrue, 580 F.3d 471, 475 (7th Cir. 2009) (internal quotation marks and citation omitted). Though the ALJ is not required to address every piece of evidence or testimony presented, “as with any well-reasoned decision, the ALJ must rest its denial of benefits on adequate evidence contained in the record and must explain why contrary evidence does not persuade.” Berger v. Astrue, 516 F.3d 539, 544 (7th Cir. 2008). Where conflicting evidence would allow reasonable minds to differ as to whether the claimant is disabled, it is the ALJ's responsibility to resolve those conflicts. Elder v. Astrue, 529 F.3d 408, 414 (7th Cir. 2008). Conclusions of law are not entitled to such deference, however, so where the ALJ commits an error of law, the court must reverse the decision regardless of the volume of evidence supporting the factual findings. Binion v. Chater, 108 F.3d 780, 782 (7th Cir. 1997).

         DISCUSSION

         I. Substantial Basis in Evidence

         The burden is on the claimant to show how her impairments met or medically equaled a listed section. 20 C.F.R. §404.1512; Filus v. Astrue, 694 F.3d 863, 868 (7th Cir. 2012) (finding that the claimant bears the burden of establishing that she met all of the requirements of a listed section) (citations omitted). To meet this burden, the claimant must show, with objective medical evidence, that her impairments met all of the criteria specified in a listed section. 20 C.F.R. §§ 404.1525, 404.1526; Sullivan v. Zebley, 493 U.S. 521, 530-31 (1990); Rice v. Barnhart, 384 F.3d 363, 369 (7th Cir. 2004) (“The applicant must satisfy all of the criteria in the Listing in order to receive an award of” benefits at step three). “An impairment that manifests on some of [the required] criteria, no matter how severe, does not qualify.” Zebley, 493 U.S. at 530. The regulations, at 20 C.F.R. § 404.1525(c)(4), require that the findings meet or medically equal the listing criteria for at least twelve continuous months, which is consistent with the Social Security Act's requirement that an impairment last at least twelve months. 42 U.S.C. §§ 423(d)(1)(A), (2)(A).

         When determining the severity of mental impairments, under the regulations, the ALJ rates the degree of functional limitation in four broad functional areas: (1) activities of daily living; (2) social functioning; (3) concentration, persistence, or pace; and (4) episodes of decompensation. 20 C.F.R. §§ 404.1520a(c)(3), (4). These ratings are used at both step two (severity) and step three (listings). 20 C.F.R. § 404.1520a. An ALJ rates the degree of limitation in the first three functional areas as none, mild, moderate, marked, or extreme, and rates the degree of limitation in the fourth functional area using a four point scale (none, one or two, three, four or more). Id. If an ALJ rates a claimant's degree of limitation in the first three functional areas as “none” or “mild, ” and “none” in the fourth functional area, the Agency concludes that claimant's mental impairments are not severe. 20 C.F.R. § 404.1520a(d)(1).

         The mental health listings at issue here require that a claimant satisfy the requirements in both paragraphs “A” and “B” of the listing or those in paragraph “C” of the listing. 20 C.F.R. Pt. 404, Subpt. P, App'x 1, §§ 12.04, 12.06. Paragraph B requires that the condition results in “at least two of the following”: marked restriction in 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. 20 C.F.R. Pt. 404, Subpt. P, App'x 1, §§ 12.04, 12.06 pt. B. “Marked” means “more than moderate but less than extreme, ” and “the degree of limitation is such as to interfere seriously with [a claimant's] ability to function independently, appropriately, effectively, and on a sustained basis.” Id. at § 12.00, pt. C.

         Paragraph C in listed section 12.04 requires a medically documented history of a chronic affective disorder of at least 2 years' duration that caused more than minimal limitation of ability to do basic work activities, with symptoms or signs currently attenuated by medication or psychosocial support, and one of the following: (1) repeated episodes of decompensation, each of extended duration; (2) a residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in environment would be predicated to cause the individual to decompensate; or (3) current history of 1 or more years' inability to function outside a highly supportive living arrangement, with an indication of continued need for such an arrangement. 20 C.F.R. Pt. 404, Subpt. P, App'x 1, § 12.04, pt. C. Paragraph C in listed section 12.06 requires a condition resulting in complete inability to function independently outside the area of one's home. 20 C.F.R. Pt. 404, Subpt. P, App'x 1, § 12.06, pt. C.

         The Plaintiff first argues that the ALJ erred in its analysis of the “B” criteria listing of 12.04, 12.05, and 12.09, and next argues that the ALJ erred in adopting too narrow a view of “decompensation” in the “C” criteria. (Pl.'s Br. 16-18, ECF No. 16.) The Defendant argues that the ALJ reasonably found that the Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of a listed section. The Defendant argues that the ALJ specifically evaluated the Plaintiff's mental ...


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