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Palmore v. Berryhill

United States District Court, S.D. Indiana, Indianapolis Division

November 14, 2017

NANCY A. BERRYHILL, [1] Acting Commissioner of the Social Security Administration, Defendant.



         Plaintiff Joanne S. Palmore (“Palmore”) requests judicial review of the final decision of the Commissioner of the Social Security Administration (the “Commissioner”), denying her application for Social Security Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (the “Act”). For the following reasons, the Court AFFIRMS the decision of the Commissioner.

         I. BACKGROUND

         A. Procedural History

         On September 13, 2013, Palmore filed an application for DIB, alleging a disability onset date of January 1, 2009[2]. (Filing No. 13-2 at 23-25.) Her claim was initially denied on October 18, 2013, and again upon reconsideration on January 16, 2014. Id. at 23. Palmore's date of last insured was December 31, 2013. Id. She filed a timely written request for a hearing, which was held on April 17, 2015, before Administrative Law Judge Blanca B. de la Torre (the “ALJ”). Id. On May 26, 2015, the ALJ denied Palmore's application for DIB. Id. at 35. Following this decision, Palmore requested review by the Appeals Council on July 24, 2015. Id. at 2. On September 30, 2016, the Appeals Council denied her request for review of the ALJ's decision, thereby making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. Id. at 7. On December 2, 2016, Palmore filed this action for judicial review of the ALJ's decision pursuant to 42 U.S.C. § 405(g). (Filing No. 1 at 1.)

         B. Factual Background

         Palmore alleges the following impairments: obesity, asthma, degenerative disc disease of the lumbosacral spine, high blood pressure, anemia, and acid reflux. (Filing No. 13-2 at 25-26.) The ALJ found that Palmore's high blood pressure, anemia, and acid reflux were not severe impairments, but listed her asthma as a severe impairment. (Filing No. 13-2 at 28.) The ALJ also found that her degenerative disc disease did not meet or medically equal the requirements of Listing 1.04 at step three of the sequential evaluation. Palmore raises one issue as to whether the ALJ's determination regarding her back pain was supported by substantial evidence; therefore, the Court focuses on the issues involving Palmore's degenerative disc disease of the lumbosacral spine.

         Palmore was born in 1963 and at the time of her amended alleged disability onset date in 2009, she was 49 years old. (Filing No. 17 at 4.) She was 51 years old at the time of the ALJ's decision and she is currently 54 years old. Palmore graduated from high school. She had an employment history of working in fast food service and package delivery service. Palmore is 5'2” tall and in October 2013, Palmore weighed 169.5 pounds with a calculated body mass index (BMI) of 33.10. (Filing No. 13-2 at 28.) A BMI of 30.0 or above reflects obesity. Id.

         On May 16, 2012, Palmore presented to Mushkbar Khan, M.D. (“Dr. Khan”) for a physical disability evaluation. (Filing No. 13-7 at 85.) Palmore reported to Dr. Khan that she was unable to work because she falls often, has back pain and headaches that occur 4-5 times per week. Id. She described her lower back pain as sharp muscle spasms that have been present for six years and that rest and Advil relieved the pain. Id. In September 2012, Palmore underwent physical therapy and her back pain improved a little. (Filing No. 13-7 at 57.)

         On May 23, 2013, a lumbosacral x-ray was unremarkable. Id. On April 14, 2013, Dr. Khan noted that a thoracic x-ray showed minimal multilevel degenerative disc disease and minimal anterior spurring at the T6-T10 levels. (Filing No. 13-7 at 70.) In August 2013, neurological findings were normal. Id. Dr. Khan performed a lumbar magnetic resonance image (MRI) on July 17, 2014, which showed mild disc bulging, facet hypertrophy with ligamentum flavum hypertrophy, and mild bilateral neural foraminal stenosis at various levels. (Filing No. 13-7 at 7.) The thoracic spine was unremarkable and the spinal cord had a normal signal. Id. There was no evidence of severe central canal stenosis or neural foraminal stenosis. Id.

         Palmore attended a consultative examination with Wallace J. Gasiewicz, M.D. (“Dr. Gasiewicz”) on October 11, 2013. (Filing No. 13-8 at 4.) Dr. Gasiewicz reported that Palmore had good range of motion in the cervical, thoracic, and lumbar spine. Id. at 5. She could climb on and off the examination table, had full strength in all major muscle groups, and had normal reflexes. Id. She had normal coordination and could perform normal movements, such as walking, sitting, squatting, bending, hand movements, manipulative movements, and grasping objects. (Filing No. 13-8 at 6.)

         Two state agency medical consultants, Dr. David Everetts, M.D. (“Dr. Everetts”) and Dr. J.V. Corcoran, M.D. (“Dr. Corcoran”), reviewed Palmore's medical records and specifically considered her degenerative disc disease, but both opined that it was not a severe impairment sufficient to support a decision on her claim. (Filing No. 13-3 at 5, 12.)


         Under the Act, a claimant may be entitled to DIB only after he establishes that he is disabled. 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). In order to be found disabled, a claimant must demonstrate that his physical or mental limitations prevent him from doing not only his previous work but any other kind of gainful employment which exists in the national economy, considering his age, education, and work experience. 42 U.S.C. § 423(d)(2)(A).

         The Commissioner employs a five-step sequential analysis to determine whether a claimant is disabled. At step one, if the claimant is engaged in substantial gainful activity, he is not disabled despite his medical condition and other factors. 20 C.F.R. § 416.920(a)(4)(i). At step two, if the claimant does not have a “severe” impairment that meets the durational requirement, he is not disabled. 20 C.F.R. § 416.920(a)(4)(ii). A severe impairment is one that “significantly limits [a claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). At step three, the Commissioner determines whether the claimant's impairment or combination of impairments meets or medically equals any impairment that appears in the Listing ...

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