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Cousino v. Berryhill

United States District Court, N.D. Indiana, Fort Wayne Division

March 8, 2018




         Plaintiff Barbara Cousino seeks review of the final decision of the Acting Commissioner of the Social Security Administration (Commissioner) denying her application for disability insurance benefits and for supplemental security income. The Plaintiff puts forth one basis for remand. For the reasons that follow, the Court affirms the final decision of the Acting Commissioner.


         On June 20, 2011, the Plaintiff filed applications for Title II and Title XVI benefits. (R. 19.) The applications resulted in an unfavorable determination on September 15, 2011, and the Plaintiff did not request reconsideration within the stated time period. (Id.)

         On September 13, 2012, the Plaintiff filed a Title II application for a period of disability and disability insurance benefits, as well as a Title XVI application for supplemental security income. (Id.) In both applications, the Plaintiff alleged disability beginning September 15, 2009. (Id.) By alleging an onset of disability during the previously adjudicated period, the Plaintiff made an implied request for reopening the prior applications. (Id.) These applications were denied initially on December 27, 2012, and upon reconsideration on February 4, 2013. (R. 222- 69.) On January 31, 2014, the Plaintiff appeared with counsel before an Administrative Law Judge (ALJ), Cynthia Floyd, who rendered an unfavorable decision. (R. 270-84.) The Plaintiff requested that the Appeals Council review the ALJ's decision, and the Appeals Council granted this request. (R. 292-96.)

         Thereafter, the Plaintiff appeared with counsel at another hearing in Fort Wayne, Indiana, in front of a different ALJ on August 5, 2015. (R. 19.) Robert S. Barkhaus, Ph.D., an impartial vocational expert (VE), also appeared and testified at the hearing by telephone. (Id.) On September 2, 2015, the ALJ denied the Plaintiff's application, finding she was not disabled through the date of the decision.[1] (R. 16-34.) The ALJ's decision became the final decision of the Commissioner on December 2, 2016, when the Appeals Council denied the Plaintiff's request for review. (R. 1-4.) On January 31, 2017, the Plaintiff filed this claim [ECF No. 1] in federal court against the Acting Commissioner of the Social Security Administration.


         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), 1382c(a)(3)(A). To be found disabled, a claimant must demonstrate that her physical or mental limitations prevent her from doing not only her previous work, but also any other kind of gainful employment that exists in the national economy, considering her age, education, and work experience. §§ 423(d)(2)(A), 1382c(a)(3)(B).

         An ALJ conducts a five-step inquiry in deciding whether to grant or deny benefits. 20 C.F.R. §§ 404.1520, 416.920. The first step is to determine whether the claimant no longer engages in substantial gainful activity. Id. In the case at hand, the ALJ found that the claimant has not engaged in substantial gainful activity since the alleged onset date, September 15, 2009. (R. 22.)

         In step two, the ALJ determines whether the claimant has a severe impairment limiting her ability to do basic work activities under §§ 404.1520(c), 416.920(c). In this case, the ALJ determined that the Plaintiff has the following severe impairments: lower back pain/lumbago/lumbar radiculopathy; leg spasticity, primarily on the left side, with left leg sciatica and peripheral neuropathy; left shoulder dysfunction; Raynaud's phenomenon; history of migraine headaches; depression/bipolar disorder; and anxiety/panic disorder. (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), 416.920(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), 416.920(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 she can still do, despite her limitations-to determine whether she can perform “past relevant work” (§§ 404.1520(a)(4)(iv), 416.920(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), 416.920(a)(4)(v)).

         The ALJ determined that the Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairs in 20 C.F.R. Part 404, Subpart P, Appendix 1, and that she had the RFC to perform sedentary work as defined in 20 C.F.R. §§ 404.1567(a), 416.967(a), except that:

[S]he needs a sit/stand option (which allows for alternating between sitting and standing up to every 30 minutes, if needed, but the positional change will not render the individual off task); only occasional climbing of ramps and stairs, balancing, stooping, kneeling, crouching, and crawling; never climbing ladders, ropes, or scaffolds; only occasional overhead reaching with the non-dominant left arm; no forceful grasping or gripping with the bilateral hands; avoid concentrated exposure to extreme cold, wetness, loud noise, vibration, pulmonary irritants (i.e. fumes, odors, dust, gases, poorly ventilated areas, and chemicals); and hazards (i.e. operational control of dangerous moving machinery, unprotected heights, and slippery/uneven/moving surfaces). Mentally, the claimant cannot understand, remember, or carry out detailed or complex job instructions, but can perform simple repetitive tasks on a sustained basis (meaning eight hours a day/five days a week, or an equivalent work schedule); no sudden or unpredictable workplace changes; needs ...

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