United States District Court, N.D. Indiana, Hammond Division
MARK G. MACEK, 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, Mark
Macek, on June 7, 2016. For the following reasons, the
decision of the Commissioner is REMANDED.
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).
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).
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).
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
(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).
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).
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).
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).
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).
then assessed Macek's residual functional capacity (RFC)
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).
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 ...