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Pittenger v. Berryhill

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

August 23, 2018

DEAN OWEN PITTENGER, Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner for Operations, Social Security Administration, 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, Dean Owen Pittenger, on May 24, 2017. For the following reasons, the decision of Commissioner is REMANDED.

         Background

         The plaintiff, Dean Owen Pittenger, filed an application for Disability Insurance Benefits on November 18, 2013, alleging a disability onset date of August 31, 2009. (Tr. 24). The Disability Determination Bureau denied Pittenger's application on February 21, 2014, and again upon reconsideration on June 26, 2014. (Tr. 24). Pittenger subsequently filed a timely request for a hearing on August 27, 2014. (Tr. 24). A video hearing was held on April 7, 2016, before Administrative Law Judge (ALJ) Shane McGovern, and the ALJ issued an unfavorable decision on May 4, 2016. (Tr. 24-33). Vocational Expert (VE) Carrie E. Anderson appeared and testified by telephone at the hearing. (Tr. 24). The Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. (Tr. 1-6).

         Pittenger also filed an application for Supplemental Security Income on November 18, 2013. (Tr. 24). In an initial determination, Pittenger was found disabled as of February 12, 2014. (Tr. 24). The ALJ concurred with the determination and concluded that Pittenger is disabled under §1614(a)(3)(A) of the Social Security Act as of February 12, 2014. (Tr. 24).

         Pittenger last met the insured status requirements of the Social Security Act on September 30, 2013. (Tr. 26). On May 4, 2016, the ALJ issued an unfavorable decision and made findings as to each of the steps in the five-step sequential analysis. (Tr. 24-33). At step one of the five-step sequential analysis for determining whether an individual is disabled, the ALJ found that Pittenger had not engaged in substantial gainful activity during the period from his alleged onset date of August 31, 2009 through his date last insured of September 30, 2013. (Tr. 26).

         At step two, the ALJ determined that through the date last insured Pittenger had the following severe impairments: hypertensive cardiovascular disease, hypertension, obesity, lumbar spine spurring, sleep apnea, and asthma. (Tr. 26). Pittenger reported that he had four bleeding ulcers as of July of 2014, but the impairment was diagnosed and treated after the date last insured. (Tr. 26). At the hearing, Pittenger testified to numerous other medical complaints including blindness in his left eye; hearing loss; three herniated discs; arthritis in his knee, hands, and hip; and severe neck problems. (Tr. 27). The ALJ indicated that the existence of a medically determinable physical or mental impairment cannot be established without objective medical abnormalities. (Tr. 27). The ALJ concluded that the above complaints were not supported by objective medical evidence and therefore were not medically determinable. (Tr. 27). After the date last insured, Pittenger attended a mental status evaluation with Irene M. Walters, Psy.D., on February 4, 2014. (Tr. 27). The ALJ determined that there was no evidence of a mental impairment prior to the date last insured and that after the date last insured the evidence only established mild limitations. (Tr. 27).

         At step three, the ALJ concluded that Pittenger did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 27). The ALJ indicated that the medical evidence did not document listing-level severity. (Tr. 27). Moreover, the ALJ found that no acceptable medical source had mentioned findings equivalent in severity to the criteria of any listed impairment, individually or in combination, specifically Listings 1.02, 3.02, 3.03, 3.10, and 4.04. (Tr. 28). The ALJ also considered Pittenger's obesity in relation to the musculoskeletal, respiratory, and cardiovascular body systems listings, as required. (Tr. 28).

         After careful consideration of the entire record, the ALJ then assessed Pittenger's residual functional capacity (RFC), through the date last insured, as follows:

[T]he claimant has the residual functional capacity to lift and/or carry up to 20 pounds occasionally and 10 pounds frequently, stand and/or walk for about 4 hours of an 8 hour workday, and sit for a total of about 6 hours in an 8 hour workday. The claimant was able to occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl, but he was unable to climb ladders, ropes, or scaffolds. The claimant needed to avoid concentrated exposure to extreme cold, extreme heat, humidity, fumes, odors, dusts, gases, and poor ventilation, and hazards.

(Tr. 28). The ALJ explained that in considering Pittenger's symptoms he followed a two-step process. (Tr. 28). 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 Pittenger's pain or other symptoms. (Tr. 28). Then, he evaluated the intensity, persistence, and limiting effects of the symptoms to determine the extent to which they limited Pittenger's functioning. (Tr. 28). The ALJ determined that Pittenger's medically determinable impairments reasonably could have been expected to cause some of the alleged symptoms. (Tr. 29). However, Pittenger's statements concerning the intensity, persistence, and limiting effects of his symptoms were not entirely consistent with the medical evidence and other evidence in the record. (Tr. 29).

         At step four, the ALJ found that through the date last insured Pittenger was unable to perform any past relevant work. (Tr. 31). Pittenger was born on February 12, 1964 and was 49 years old, which was defined as a younger individual age 45-49 on the date last insured. (Tr. 31). The ALJ considered whether the instant matter justified applying the age-categories non-mechanically, but he found that any additional vocational adversities were fully considered by the medical-vocational rules. (Tr. 31). The ALJ noted that Pittenger had at least a high school education and was able to communicate in English. (Tr. 31). The ALJ did not account for the transferability of job skills to determine disability because the medical-vocational rules supported a finding that the Pittenger was not disabled. (Tr. 31).

         Considering Pittenger's age, education, work experience, and RFC, the ALJ concluded that there were jobs in the national economy that he could perform, including system surveillance monitor (98, 600 jobs nationally), order clerk (109, 200 jobs nationally), and sorter (102, 400 jobs nationally reduced by 20 percent). (Tr. 32). The ALJ found that Pittenger had not been under a disability, ...


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