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Zenner v. Berryhill

United States District Court, N.D. Indiana

January 16, 2018

JOSEPH F. ZENNER, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.

          OPINION AND ORDER

          THERESA L. SPRINGMANN, CHIEF JUDGE.

         The Plaintiff, Joseph F. Zenner, seeks review of the final decision of the Commissioner of the Social Security Administration (“the Commissioner”) denying his application for disability insurance benefits and for supplemental security income. The Plaintiff argues that the Commissioner wrongfully denied him disability benefits and supplemental security income and erred by failing to provide “good reasons” for discrediting the opinions of treating physicians; making a “patently wrong” adverse credibility determination; failing to adequately account for limitations in concentration, persistence, and pace; failing to evaluate new and material evidence; and failing to consult a medical expert regarding whether the Plaintiff's limitations medically equaled the relevant listings.

         BACKGROUND

         On February 12, 2013, the Plaintiff filed his Title II application for a period of disability and disability insurance benefits, as well as a Title XVI application for supplemental security income, alleging disability beginning on April 11, 2011. (R. 26.) His claims were denied initially on April 11, 2013, and upon reconsideration on June 6, 2013. (Id.) On December 3, 2014, the Plaintiff appeared with counsel and testified at a video hearing before an administrative law judge (ALJ). (Id.) Leonard M. Fisher, a vocational expert, also appeared and testified at the hearing. (Id.) On December 22, 2014, the ALJ denied the Plaintiff's application, finding he was not disabled prior to his date last insured, June 30, 2013. (R. 26-40.) On April 28, 2016, the ALJ's decision became the final decision of the Commissioner when the Appeals Council denied the Plaintiff's request for review of the ALJ's decision. (R. 1-3.)

         On June 27, 2016, the Plaintiff filed this claim [ECF No. 1] in federal court against the Acting Commissioner of the Social Security Administration.

         THE ALJ'S FINDINGS

         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 his physical or mental limitations prevent him from doing not only his previous work, but also any other kind of gainful employment that exists in the national economy, considering his 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 ALJ found that the Plaintiff has been unable to engage in SGA from his alleged onset date, April 11, 2011, to his date last insured, June 30, 2013. (R. 29.)

         In step two, the ALJ determines whether the claimant has a severe impairment limiting his ability to do basic work activities under § 404.1520(c). In this case, the ALJ determined that the Plaintiff had multiple severe impairments, including cervical degenerative disc disease status post fusion, remote fracture of tibia, remote left hip injury, diabetes mellitus, hypertension, and cognitive dysfunction. (Id.) The ALJ found that these impairments caused more than minimal limitations in the Plaintiff's ability to perform the basic mental and physical demands of work and had lasted for at least twelve months as required under the statute. (Id.) The ALJ found that the Plaintiff's medically determinable impairment of mood disorder was not a severe impairment because it did not cause more than minimal functional limitations. (Id.)

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

         The ALJ determined that the Plaintiff's impairments did not meet or equal any of the listings in Appendix 1 and that he had the RFC to perform medium work, as defined in 20 C.F.R. § 404.1567(c) and 416.967(c) except that:

[H]e can never climb ladders, ropes, or scaffolds. He is limited to occasional rotation of the neck, and he is limited to jobs that require no more than occasional exposure to vibration and to hazards, such as dangerous moving mechanical parts or unprotected heights. The claimant is able to understand, remember, and carry out simple instructions; to make judgments on simple work-related decisions; to interact appropriately with supervisors and coworkers in a routine work setting; and to respond to usual changes in a routine work-setting.

         (R. 32.)

         After analyzing the record, the ALJ concluded that the Plaintiff was not disabled from his alleged onset date to his date last insured. The ALJ found that the Plaintiff's medically determinable impairments could reasonably be expected to cause some of the alleged symptoms. (R. 33.) But, the ALJ found that the Plaintiff's testimony and prior statements regarding the intensity, persistence, and limiting effects of these symptoms were “not entirely credible.” (Id.) The Plaintiff testified, and his ex-wife filed a third-party report, regarding his level of pain and the functional restrictions on the Plaintiff's daily activities. The Plaintiff described lingering effects from three surgeries, including back pain when he “gets up and moves.” (R. 32.) The Plaintiff also reported that “he has to sit down and recline to take the pressure off his neck, and described the pain as the weight of his head shooting pains down into his back, arms, and fingers, necessitating that he lie down.” (Id.) He testified that he could lift and carry only ten pounds comfortably, “sit for 1 hour, and stand for 1 ½ to 2 hours as long as he is moving around.” (Id.) However, he indicated that “he has to lie down for two hours after standing and that after sitting for one hour, he has to recline for one hour to take pressure off his neck.” (Id.) He further testified that his neck and shoulder pain requires him to lie down for three quarters of the day. (Id.) He also ...


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