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Winter v. Berryhill

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

August 28, 2018

LINDA SUE WINTER, 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, Linda Sue Winter, on June 30, 2017. For the following reasons, the decision of the Commissioner is REMANDED.

         Background

         The plaintiff, Linda Sue Winter, filed an application for Disability Insurance Benefits on May 4, 2013, alleging a disability onset date of March 29, 2013. (Tr. 15). The Disability Determination Bureau denied Winter's application on July 19, 2013, and again upon reconsideration on October 31, 2013. (Tr. 15). Winter subsequently filed a timely request for a hearing on November 11, 2013. (Tr. 15). A hearing was held on July 7, 2015, before Administrative Law Judge (ALJ) Brian Saame, and the ALJ issued an unfavorable decision on August 14, 2015. (Tr. 15-23). Winter and Vocational Expert (VE) Jessica Christensen testified at the hearing. (Tr. 15). The Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. (Tr. 1-9). Winter met the insured status requirements of the Social Security Act through December 31, 2018. (Tr. 17).

         The ALJ issued an unfavorable decision and made findings as to each of the steps in the five-step sequential analysis. (Tr. 15-23). At step one of the five-step sequential analysis for determining whether an individual is disabled, the ALJ found that Winter had not engaged in substantial gainful activity since March 29, 2013, the alleged onset date. (Tr. 17).

         At step two, the ALJ determined that Winter had the following severe impairments: lumbar spinal stenosis with radiculopathy, status post lumbar fusion at ¶ 4/5, left foot fracture, and obesity. (Tr. 17). At step three, the ALJ concluded that Winter did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. (Tr. 18). The ALJ considered Winter's lumbar spinal stenosis with radiculopathy, status post lumbar fusion at ¶ 4/5, and left foot fracture under Listings 1.02 and 1.04. (Tr. 18). He found that the medical evidence did not document listing-level severity. (Tr. 18). Specifically, the ALJ indicated that the record was devoid of evidence of nerve root compression, spinal arachnoiditis, or lumbar spinal stenosis with accompanying ineffective ambulation. (Tr. 18). The ALJ noted that Winter's obesity seriously complicated her musculoskeletal and cardiovascular co-morbidities. (Tr. 18). Therefore, the ALJ indicated that the combined effects of Winter's impairments resulted in greater limitations than without her obesity. (Tr. 18). However, the ALJ found that Winter could ambulate effectively. (Tr. 18).

         After careful consideration of the entire record, the ALJ then assessed Winter's residual functional capacity (RFC) as follows:

[T]he claimant has the residual functional capacity (RFC) to perform restricted sedentary work as defined in 20 CFR 404.1567(a). The claimant can lift/carry and push/pull 10 lbs. occasionally. In an 8-hour workday, she can stand/walk 2 hours and sit 6 hours. She is unable to climb ladders, ropes, or scaffolds. She can occasionally stoop, balance, kneel, couch, crawl and climb ramps/stairs. She must be allowed an option to use a cane on the left for walking/balancing. The claimant should avoid all exposure to hazards such as slippery/uneven terrain, moving surfaces or unprotected heights.

(Tr. 18). The ALJ explained that in considering Winter's symptoms he followed a two-step process. (Tr. 19). 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 Winter's pain or other symptoms. (Tr. 19). Then, he evaluated the intensity, persistence, and limiting effects of the symptoms to determine the extent to which they limited Winter's functioning. (Tr. 19). The ALJ found that after careful consideration of the evidence, Winter's medically determinable impairments reasonably could be expected to cause the alleged symptoms. (Tr. 19). However, her statements concerning the intensity, persistence, and limiting effects of her symptoms were not entirely credible. (Tr. 19).

         At step four, the ALJ found that Winter was capable of performing her past relevant work as a secretary. (Tr. 22). The ALJ indicated that Winter's work as a secretary did not require the performance of work-related activities precluded by her residual functional capacity. (Tr. 22). Because the ALJ found that Winter was capable of performing her past relevant work, he did not proceed to step five. (Tr. 22). The ALJ found that Winter had not been under a disability, as defined in the Social Security Act, from March 29, 2013 through August 14, 2015, the date of this decision. (Tr. 23).

         Discussion

         The standard for judicial review of an ALJ's finding that a claimant is not disabled within the meaning of the Social Security Act is limited to a determination of whether those findings are supported by substantial evidence. 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security, as to any fact, if supported by substantial evidence, shall be conclusive.”); Moore v. Colvin, 743 F.3d 1118, 1120-21 (7th Cir. 2014); Bates v. Colvin, 736 F.3d 1093, 1097 (7th Cir. 2013) (“We will uphold the Commissioner's final decision if the ALJ applied the correct legal standards and supported his decision with substantial evidence.”). Courts have defined substantial evidence as “such relevant evidence as a reasonable mind might accept to support such a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 852 (1972) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed.2d 140 (1938)); see Bates, 736 F.3d at 1098. A court must affirm an ALJ's decision if the ALJ supported his findings with substantial evidence and if there have been no errors of law. Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013) (citations omitted). However, “the decision cannot stand if it lacks evidentiary support or an adequate discussion of the issues.” Lopez ex rel Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003).

         Disability insurance benefits are available only to those individuals who can establish “disability” under the terms of the Social Security Act. The claimant must show that she is unable “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). The Social Security regulations enumerate the five-step sequential evaluation to be followed when determining whether a claimant has met the burden of establishing disability. 20 C.F.R. §§ 404.1520. The ALJ first considers whether the claimant is presently employed and “doing . . . substantial gainful activity.” 20 C.F.R. §§ 404.1520(b). If she is, the claimant is not disabled and the evaluation process is over. If she is not, the ALJ next addresses whether the claimant has a severe impairment or combination of impairments that “significantly limits . . . physical or mental ability to do basic work activities.” 20 C.F.R. §§ 404.1520(c); see Williams v. Colvin, 757 F.3d 610, 613 (7th Cir. 2014) (discussing that the ALJ must consider the combined effects of the claimant's impairments). Third, the ALJ determines whether that severe impairment meets any of the impairments listed in the regulations. 20 C.F.R. § 401, pt. 404, subpt. P, app. 1. If it does, then the impairment is acknowledged by the Commissioner to be conclusively disabling. However, if the impairment does not so limit the claimant's remaining capabilities, the ALJ reviews the claimant's “residual functional capacity” and the physical and mental demands of her past work. If, at this fourth step, the claimant can perform her past relevant work, she will be found not disabled. 20 C.F.R. § 404.1520(e). However, if the claimant shows that her impairment is so severe that she is unable to engage in her past relevant work, then the burden of proof shifts to the Commissioner to establish that the claimant, in light of her age, education, job experience, and functional capacity to work, is capable of performing other work and that such work exists in the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1520(f).

         Winter has requested that the court reverse the ALJ's decision and award benefits, or in the alternative remand for additional proceedings. In her appeal, Winter has argued that the ALJ: (1) arrived at an unsupported conclusion at step three; (2) provided an RFC that was not supported by substantial evidence; and (3) improperly addressed her subjective complaints.

         First, Winter has argued that the ALJ failed to properly support his finding at step three. At step three, the ALJ concluded that Winter 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. (Tr. 18). The ALJ specifically considered Listings 1.02 and 1.04. However, he determined that the medical evidence did not document listing-level severity. (Tr. 18). The ALJ indicated that the record was devoid of evidence of nerve root compression, spinal arachnoiditis, or lumbar spinal stenosis with accompanying ineffective ambulation. (Tr. 18).

         Winter has argued that the ALJ arrived at his conclusion without support from a medical expert. Winter has indicated that the ALJ cannot rely on the State agency review to support his finding that Winter did not meet Listing 1.02. The State agency review did not reference Listing 1.02, major dysfunction of a joint. Moreover, Winter contends that at the time of the review the State agency did not have records of her knee surgery and that the review was prior to the vast ...


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