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Macek v. Berryhill

United States District Court, N.D. Indiana, Hammond Division

September 29, 2017

MARK G. MACEK, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.

          OPINION AND ORDER

          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, Mark Macek, on June 7, 2016. For the following reasons, the decision of the Commissioner is REMANDED.

         Background

         The plaintiff, Mark G. Macek, filed an application for Disability Insurance Benefits on June 23, 2009, alleging a disability onset date of November 3, 2008. (Tr. 11). The Disability Determination Bureau denied Macek's application on December 4, 2009, and again upon reconsideration on March 26, 2010. (Tr. 11). Macek subsequently filed a timely request for a hearing on May 6, 2010. (Tr. 11). A video hearing was held on December 20, 2010, before Administrative Law Judge (ALJ) Kathleen Mucerino, and the ALJ issued an unfavorable decision on February 1, 2011. (Tr. 11-24). Macek appealed the ALJ's decision to the Appeals Council, and this court remanded this matter to the Agency on September 27, 2013. (Tr. 576). On September 25, 2014 and May 22, 2015, hearings were held before Administrative Law Judge (ALJ) Dennis Kramer, and the ALJ issued an unfavorable decision on July 17, 2015. (Tr. 576-594). Medical Experts (ME) Gilberto Munoz and Jeffery Andert appeared and provided telephonic testimony, and Vocational Expert (VE) Thomas Grzesik testified at the hearing on September 25, 2014. At the subsequent hearing on May 22, 2015, Medical Expert (ME) Dr. Lee A. Fischer and Vocational Expert (VE) Richard Riedl testified. The Appeals Council denied Macek's exceptions, making the ALJ's decision the final decision of the Commissioner. (Tr. 567-72).

         The ALJ found that Macek last met the insured status requirements of the Social Security Act on December 31, 2014. (Tr. 579). At step one of the five step sequential analysis for determining whether an individual is disabled, the ALJ found that Macek had not engaged in substantial gainful activity during the period from his alleged onset date of November 3, 2008, through his date last insured on December 31, 2014. (Tr. 579). At step two, the ALJ determined that Macek had the following severe impairments: an obese body habitus, type II diabetes mellitus, degenerative disc disease of the lumbar spine, history of obstructive sleep apnea (OSA), tendinitis, a major depressive/affective disorder, and history of a polysubstance use disorder. (Tr. 579). The ALJ indicated that he considered Macek's non-severe impairments, including acute gout, hypertension (HTN), and pes planus. (Tr. 579). Also, the ALJ found that Macek's alleged anxiety disorder and psychosis condition (auditory hallucinations) were not medically determinable. (Tr. 580).

         At step three, the ALJ concluded that through the date last insured Macek did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments. (Tr. 580). The ALJ assigned great weight to the medical experts' opinions that Macek did not meet one of the listed impairments. (Tr. 580). The ALJ concluded that the medical experts had detailed knowledge of the facts as well as the standards set forth in the disability law and Regulations. (Tr. 580). Further, the ALJ determined that the medical experts' opinions remained appropriate since there had been no new and material evidence. (Tr. 580). The ALJ also considered the exacerbatory impact of Macek's obesity in determining whether his impairments met or medically equaled the relevant listings, prior to the date last insured. (580-81).

         The ALJ found that Macek's mental impairments did not meet or medically equal listings 12.04 and 12.09. (Tr. 581). In finding that Macek did not meet the above listings, the ALJ considered the paragraph B criteria for mental impairments, 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. 581). 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. 581).

         The ALJ determined that Macek had moderate restrictions in daily living activities. (Tr. 581). The Function Report indicated that Macek's depression limited his motivation to engage in normal activities of daily living. (Tr. 581). The psychological records noted that at times Macek appeared disheveled and unshaven, but usually he appeared appropriately dressed and hygienically within functional limits. (Tr. 581). The ALJ indicated that Macek remained capable of living independently. (Tr. 581). The State agency psychological consultants found that Macek had mild limitations in daily living activities, while the medical expert opined that he had moderate limitations. (Tr. 581). The ALJ afforded significant weight to the medical expert, and therefore adopted moderate limitations in daily living activities. (Tr. 581).

         The ALJ found that Macek had moderate difficulties in social functioning. (Tr. 581). The Function Report indicated that Macek hated people in general, yet the record stated that he behaved appropriately with his clinicians and their staff. (Tr. 581). Also, the ALJ noted that Macek drove and interacted with friends in a fantasy sports league. (Tr. 581). Again, the ALJ adopted the finding of the medical expert. (Tr. 582).

         The ALJ concluded that Macek had moderate difficulties in concentration, persistence, or pace. (Tr. 582). Macek had alleged memory loss, poor focus, and cognitive limitations. (Tr. 582). However, the ALJ indicated that the record failed to reflect greater limitations than simple, routine, and repetitive tasks in a non-production type environment. (Tr. 582). The ALJ indicated that all of Macek's GAF scores, ranging from 30 to 70, were considered when assessing his RFC. (Tr. 582). The Function Reports represented that Macek read history books, played video games, and watched an extensive amount of television. (Tr. 582). Further, the ALJ gave the finding that Macek had the psychological and cognitive ability to manage his own funds great weight. (Tr. 583). The ALJ noted that at all times Macek was found alert and oriented to persons, places, and time. (Tr. 583). However, despite having some short-term memory issues, he was a historian and his judgment, insight, and abstract thought processes were intact. (Tr. 583). The ALJ indicated that when he assessed the severity of Macek's allegations regarding his mental disorder he considered Macek's cognitive ability to engage in such complex tasks like driving a motor vehicle. (Tr. 583).

         The ALJ found that Macek had not experienced any episodes of decompensation which were of extended duration. (Tr. 583). Because Macek did not have two marked limitations or one marked limitation and repeated episodes of decompensation, the ALJ determined that he did not satisfy the paragraph B criteria. (Tr. 584). Additionally, the ALJ found that Macek did not satisfy the paragraph C criteria. (Tr. 584).

         The ALJ then assessed Macek's residual functional capacity (RFC) as follows:

through the date last insured, claimant had the residual functional capacity to lift and carry up to 10 pounds; at one time, the claimant could have sat for 2 hours, and stood and or/walked for 30 minutes; in an 8-hour workday, the claimant could have sat for 6 hours, and for the remaining 2 hours, the claimant could have stood and/or walked; the claimant could have never climbed ladders, ropes, or scaffolds, kneel, crouch, or crawled; the claimant could have occasionally climbed ramps and stairs, balance and or stooped; the claimant would have had to avoid all exposure to work at unprotected heights and around dangerous moving machinery; the claimant could not operate a commercial motor vehicle; the claimant could have tolerated occasional exposure to humidity and wetness, and pulmonary irritants such as fumes, odors, dusts, gases, and area of poor ventilation, as well as extreme temperatures, and vibrations; the claimant was limited to simple, routine and repetitive tasks with no fast-paced production quotas; the claimant was further limited to occasional interaction with co-workers, supervisors, and the general public; lastly, the claimant would have been able to understand, remember, and carry out simple instructions, make judgments on simple work related decisions, and respond to usual work situations and changes in a routine work setting.

(Tr. 584). The ALJ explained that in considering Macek's symptoms he followed a two-step process. (Tr. 585). First, he determined whether there was an underlying medically determinable physical or mental impairment that was shown by a medically acceptable clinical or laboratory diagnostic technique that reasonably could be expected to produce Macek's pain or other symptoms. (Tr. 585). Then, he evaluated the intensity, persistence, and limiting effects of the symptoms to determine the extent to which they limited Macek's functioning. (Tr. 585). The ALJ found that Macek's statements concerning the intensity, persistence, and limiting effects of his symptoms were not entirely credible. (Tr. 585).

         First, regarding Macek's diabetes mellitus/obesity the ALJ found that the record was clear that Macek had elevated blood sugar levels. (Tr. 585). Macek had sought follow-up care from Dr. Jones. (Tr. 585). However, the ALJ noted that when Macek controlled his dietary intake and complied with his insulin regimen no diabetic complications were objectively documented. (Tr. 585). Therefore, the ALJ concluded that Macek's failure to ...


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