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Hardy v. Berryhill

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

September 11, 2017

REGINA HARDY, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         On September 22, 2015, Plaintiff Regina Hardy filed a complaint in this Court seeking review of the final decision of the Defendant Commissioner of Social Security denying her application for social security disability benefits [DE 1]. The matter is ripe for decision [DE 16; DE 22]. For the reasons stated below, the Court remands this matter to the Commissioner for further proceedings.

         I. FACTS

         Hardy filed an application for disability insurance benefits on November 16, 2012, alleging an onset date of September 25, 2012. At that time, Hardy was fifty-one years old, had a high school education, and for over twenty years performed heavy unskilled work as a custodian. Hardy alleges that she became disabled as a result of various physical problems, including post-surgery right shoulder pain, post-surgery right ankle pain, bi-lateral knee pain and total left knee replacement, sleep apnea, lower back pain, diabetes, and high blood pressure. Hardy is also limited by her extreme obesity and documented body mass index (“BMI”) of 48.[1] R. at 345. Both bariatric surgery and further right ankle surgery[2] were discussed with Hardy in early 2012. R. at 36, 38, 208-26, 228-67, 273-75, 375-82. But because Hardy was also experiencing “active painful range of motion with limiting factors of pain” in both knees[3] and multiple steroid injections in the left knee proved ineffective, she first underwent a total left knee replacement in September 2012 by treating orthopaedic surgeon, Dr. Jeffrey Yergler. Id. After having the surgery and despite progressing with a normal recovery, Hardy continued to experience left knee pain. R. at 268-71, 333. On December 3, 2012, Dr. Yergler prescribed four weeks of physical therapy and indicated that Hardy could return to work with “no prolonged standing, no kneeling, crawling or squatting.” R. at 369. In April 2013, Hardy went for physical therapy on account of experiencing left knee pain and it was reported that she had retired because she could not return to work with her restrictions. R. at 370, 410.

         With respect to state agent opinions, on January 18, 2013, state agent consultative examiner, Dr. Onamusi, completed an internal medicine evaluative report which noted that Hardy had minimal discomfort along her lower lumber region, moderate tenderness in her right ankle joint, and mild-to-moderate tenderness in her knees. R. at 343-47. Hardy also had a reduced range of motion in her knees and right ankle. Dr. Onamusi diagnosed Hardy with diabetes mellitus and chronic lower back and polyarticular (arthritic) pain status post-surgery in multiple joints (right ankle, bilateral knees, and right shoulder). Dr. Onamusi opined that Hardy was capable of performing “sedentary to light” physical demand activities.

         After reviewing Dr. Onamusi's findings and Hardy's other medical records, in January and April 2013, state agency consultants opined that Hardy could actually perform light work (which included the ability to stand and/or walk for six hours, as well as sit for six hours, in an eight hour workday with normal breaks), with some specified postural and environmental limitations, including in relevant part that she must avoid concentrated exposure to wetness and hazards, unprotected heights, and slippery uneven surfaces. R. at 46-53, 55-63. The state agents anticipated that Hardy would continue to improve with her post-operative recovery.

         Hardy's application was denied initially on January 29, 2013, and was then denied on reconsideration on April 3, 2013. On March 14, 2014, a hearing was held before Administrative Law Judge Christa Zamora (“ALJ”). During the hearing, testimony was received from Hardy and Mr. Thomas Gusloff (a vocational expert) (“VE”).

         Hardy testified that she continues to suffer from knee and ankle problems, and that she still needed to undergo a right knee replacement and ankle reconstruction. Hardy indicated that if she stood for too long, then she experienced knee swelling and stabbing pain. Hardy believed that she could stand for thirty minutes, sit for one hour, and walk a couple of blocks before needing a break. She could also lift ten to twenty pounds. Hardy testified that she used a hospital chair for getting dressed and showering, and she sometimes used a motorized cart for shopping. In addition, Hardy indicated that she had trouble sleeping on account of experiencing pain.

         The VE testified that based strictly on the (relevant) hypothetical posed to him (which offered an assigned residual functional capacity (“RFC”)[4] of light work, limited by no climbing of ladders, ropes, and scaffolds, occasional climbing of ramps and stairs, occasional balancing, kneeling, stooping, crawling, or crouching, along with frequent overhead reaching and “frequent” exposure to unprotected heights, moving mechanical parts, and wetness), Hardy would not be able to perform her past work, but she could perform unskilled work as a photo copy machine operator, marker-retail, and inserting machine operator. The VE confirmed that a person would not be able to perform these particular jobs or other jobs at the light exertional level if an at-will sit-stand option was required.

         The ALJ issued a decision on March 21, 2014, denying Hardy disability benefits and concluding that Hardy was not disabled under the Social Security Act because she was able to perform other work in the national economy (step 5). The Appeals Council then denied Hardy's request for review on July 24, 2015, making the ALJ's decision the final determination of the Commissioner. Schomas v. Colvin, 732 F.3d 702, 707 (7th Cir. 2013). Hardy seeks review of the Commissioner's decision, thereby invoking this Court's jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3).


         This Court will affirm the Commissioner's findings of fact and denial of disability benefits if they are supported by substantial evidence. Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008). Substantial evidence consists of “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). This evidence must be “more than a scintilla but may be less than a preponderance.” Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007). Thus, even if “reasonable minds could differ” about the disability status of the claimant, the Court must affirm the Commissioner's decision as long as it is adequately supported. Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008).

         In this substantial-evidence determination, the Court considers the entire administrative record but does not reweigh evidence, resolve conflicts, decide questions of credibility, or substitute the Court's own judgment for that of the Commissioner. Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003). Nevertheless, the Court conducts a “critical review of the evidence” before affirming the Commissioner's decision. Id. An ALJ must evaluate both the evidence favoring the claimant as well as the evidence favoring the claim's rejection and may not ignore an entire line of evidence that is contrary to the ALJ's findings. Zurawski v. Halter, 245 F.3d 881, 888 (7th Cir. 2001). Consequently, an ALJ's decision cannot stand if it lacks evidentiary support or an adequate discussion of the issues. Lopez, 336 F.3d at 539. Ultimately, while the ALJ is not required to address every piece of evidence or testimony presented, the ALJ must provide a “logical bridge” between the evidence and the conclusions. Terry v. Astrue, 580 F.3d 471, 475 (7th Cir. 2009).


         Disability and supplemental insurance benefits are available only to those individuals who can establish disability under the terms of the Social Security Act. Estok v. Apfel, 152 F.3d 636, 638 (7th Cir. 1998). Specifically, the claimant must be 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.” 42 U.S.C. § 423(d)(1)(A). The Social Security regulations create a five-step sequential evaluation process to be used in determining whether the claimant has established a disability. 20 C.F.R. § 404.1520(a)(4)(i)-(v). The steps are to be used in the following order:

1. Whether the claimant is currently engaged in substantial gainful activity;
2. Whether the claimant has a medically severe impairment;
3. Whether the claimant's impairment meets or equals one listed in ...

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