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Karger v. Berryhill

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

October 3, 2018

LESLIE ANN KARGER, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.

          OPINION AND ORDER

          THERESA L. SPRINGMANN CHIEF JUDGE

         The Plaintiff, Leslie Ann Karger, seeks review of the final decision of the Commissioner of the Social Security Administration denying her application for Disability Insurance Benefits and Supplemental Security Income. The Plaintiff argues that the Commissioner erred by: (1) crediting the testimony of a non-examining source over that of her treating specialist and/or examining physicians; (2) failing to adequately follow the directive of the Appeals Council to reevaluate her gait instability issues and carpal tunnel limitations; and (3) failing to build a logical bridge from the evidence to her conclusions regarding the Plaintiff's residual functional capacity due to a flawed credibility determination. For the reasons set forth below, the Court REVERSES and REMANDS this case for further proceedings in accordance with this Opinion and Order.

         BACKGROUND

         On January 3, 2012, the Plaintiff completed an application for Disability Insurance Benefits under Title II of the Social Security Act, 42 U.S.C. § 423(d), as well as an application for Supplemental Security Income under Title XVI of the Social Security Act, 42 U.S.C. § 1382c(a)(3), alleging disability beginning on October 1, 2010. (R. 325-337.) Her claims were denied initially on February 15, 2012, and upon reconsideration on April 12, 2012. (R. 137-38, 141-42.) An administrative law judge (ALJ) conducted a video hearing on April 30, 2013, at which the Plaintiff-who was represented by an attorney-and a vocational expert (VE) testified. (R. 109-136.) On May 31, 2013, the ALJ denied the Plaintiff's application, finding she was not disabled as of her alleged onset date. (R. 146-56.) On October 17, 2014, the Appeals Council vacated the decision and remanded the case back to the ALJ for consideration of new and material evidence related to the Plaintiff's limitations. (R. 163-64.) Specifically, the Appeals Council directed the ALJ to resolve the following issues:

An electromyography report dated July 3, 2013, approximately one month after the decision date, indicates that the claimant has severe right carpal tunnel syndrome and moderate to severe left carpal tunnel syndrome. The decision's residual functional capacity found that the claimant can frequently handle or finger with her right upper extremity and can frequently reach (except overhead) with her left upper extremity. The residual functional capacity did not include any fingering limitations with the left upper extremity (Finding 5). The new electromyography report suggests that greater limitations may be appropriate with both the right and left upper extremities. In addition, the new records from treating source Dr. Lee indicate the claimant has gait unsteadiness, which may affect her ability to stand and/or walk for six hours in an eight-hour workday. Treatment records reflect she has been complaining of episodes of weakness and falling. Recent EEG testing has been mostly abnormal. Further consideration is necessary.

(R. 163.) The ALJ was instructed to gather additional evidence regarding the Plaintiff's gait disturbances and carpal tunnel syndrome, consider her residual functional capacity, and obtain evidence from a VE to clarify the effect of any new limitations. (R. 163-64.) Another hearing was held on September 9, 2015, at which the Plaintiff-this time appearing in person and represented by a different attorney-and a VE testified. (R. 37-108.) In addition, Jack Lebeau, M.D. (Dr. Lebeau), a physician who is board certified in cardiology and internal medicine, testified as an impartial medical expert (ME). (R. 71-94, 1400.) In a decision dated February 29, 2016, the ALJ determined that the Plaintiff was not disabled from October 1, 2010, through the date of the decision. (R. 16-29.) On November 4, 2016, the ALJ's decision became the final decision of the Commissioner when the Appeals Council denied the Plaintiff's request for review. (R. 1-4.) The Plaintiff filed this claim in federal court against the Acting Commissioner of the Social Security Administration on January 8, 2017 [ECF No. 1].

         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), 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 (SGA). Id. In the case at hand, the ALJ found that the Plaintiff has not engaged in SGA since her alleged onset date, October 1, 2010. (R. 18.)

         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) and 416.920(c). In this case, the ALJ determined that the Plaintiff has multiple severe impairments, including hearing loss, fibromyalgia, degenerative disc disease, carpal tunnel syndrome, a seizure disorder, bipolar disorder, anxiety, and a panic disorder. (R. 19.) The ALJ found that these impairments caused more than minimal limitations in the Plaintiff's ability to perform basic work activities. (Id.) However, the ALJ found that the Plaintiff's other alleged or diagnosed impairments, including a blood clotting disorder, a history of pulmonary embolism, dyspnea, restless leg syndrome, a hiatal hernia, acid reflux, ulcers, sleep apnea, occipital neuralgia, a history of kidney stones, and gastroesophageal reflux disease (GERD) were non-severe. (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] 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 he can still do physically, despite his limitations-to determine whether he 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). Here, the ALJ determined that the Plaintiff's impairments did not meet or equal any of the listings in Appendix 1 and that she had the RFC to perform light work, as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except:

[S]he is limited to occasional stooping, crouching, crawling, kneeling, balance, and climbing of ramps and stairs, no climbing of ladders, ropes, or scaffolding; no exposure to hazards including slippery, wet, uneven surfaces, moving machinery, or unprotected heights; frequent handling and fingering bilaterally; she is limited to occasional overhead reach bilaterally and frequent reaching in all other directions; she should avoid work with excessive background noise, and the work should not require precise hearing or the need to distinguish or discern small or minute sounds; she is capable of conversation either in person or by phone and can avoid hazards in the workplace; she can understand, remember, and carry out simple, routine tasks and can maintain adequate attention and concentration for those tasks; she can interact on an ongoing basis, but superficially, with coworkers and supervisors; she is limited to infrequent and superficial contact with the general public; the work can involve no fast paced production or quota; and she can manage the changes associated within a routine work setting.

(R. 19, 22.)

         In doing, so, the ALJ evaluated the objective medical evidence and the Plaintiff's subjective symptoms and found that the Plaintiff's medically determinable impairments could reasonably be expected to cause some of the alleged symptoms. (R. 23.) For example, as is relevant to this order, the ALJ noted that the Plaintiff reported and testified as to weakness in her legs, swelling, tingling, and burning of her hands, staring spells, loss of consciousness, passing out, headaches, dizziness, and balance problems. (R. 22-23.) She also claimed she has trouble sitting, standing, or walking for long periods of time and sometimes requires the use of a cane. (R. 23.) Yet, the ALJ found that the Plaintiff's testimony and statements regarding the intensity, persistence, and limiting effects of these symptoms were “not entirely credible for the reasons explained in [the] decision.” (Id.) The ALJ acknowledged that EMG and nerve conduction studies of the Plaintiff's upper extremities have been consistent with bilateral carpal tunnel syndrome-severe on the right and moderate-severe on the left-and that she was noted to have “decreased fine manipulation at the most recent consultative medical examination, where she demonstrated trouble manipulating objects in her fingers, buttoning a shirt, or picking up a coin.” (R. 23-24.) However, her grip strength was still at 4/5 at that time, and she demonstrated a full range of motion in both wrists. (R. 24.) The Plaintiff also testified that “she can button, zip, open jars, turn doorknobs, reach forward, and reach overhead.” (Id.)

         The ALJ further noted that the Plaintiff has had “complaints of dizziness, disequilibrium, vertigo, syncope, nausea, vomiting, and headaches for many years” and that “some EEG's have been abnormal, with sharp wave discharges.” (Id.) Conversely, “some EEG's have been essentially normal, with no epileptiform discharges, electrographic seizures, abnormal slowing, or any other abnormalities to account for the claimant's symptoms, ” and “MRI's of her brain have revealed only minimal/mild deep white matter degeneration that is within the expected range.” (Id.) Specifically as to the Plaintiff's gait and station, the ALJ recognized that it had been documented as unsteady at times and that she had been observed to use a cane to assist with balance. (Id.) But, at other times, her gait, station, and posture had been documented as normal and her coordination as intact. (Id.) The ALJ made note that the Plaintiff “did not have, or require, a cane at the hearing.” (Id.)

         With regard to the medical expert and physician opinions, the ALJ afforded the testimony of Dr. Lebeau substantial evidentiary weight, stating-in full-that “[h]is opinion is within the purview of his expertise and consistent with the record as a whole. As Dr. Lebeau correctly pointed out, there is simply insufficient objective evidence to support the claimant's contentions.” (R. 25-26.) After touching briefly on what he referred to as “a series of non-disabling diagnoses, ” Dr. Lebeau testified to his opinion as follows:[1]

Well there's certainly no question that no listings are met here. This is however a woman with a lot of medical condition which I've tried to go through and so forth. Strictly in combination be [inaudible] is an interesting question. I don't think that, you know, whether you take the objective meter that have that the objective lead that it adds up to a disability situation. I think she should be able to sit for hours if she had to. Maybe accommodation being a special chair. Something that supports your back.
That she should be able walk, she should be able to stand. She should be able to handle things and if her carpal tunnel syndrome were severe and her fingers got to the point where they couldn't do delicate things in a work situation then they should be prepared.
That's the way I put it together but I certainly grant everybody here that this is a very complicated matter and I'm giving you my understanding based up the hard evidence that I've got here. . . .
Here's what I put down. I believe that she could sit for two hours in a session and she'd get up and stretch her back and so forth, but she should be able to do six hours a day or even seven of that, you know, restful sort of thing. Standing I put one hour at a time or four hours in a day. Walking I put one hour there and only two hours a day.
And then I put down and under environmental I don't believe that she needs any special accommodation although obviously she should be at height or unprotected height around ladders or the like since after all she does have epilepsy and you never know. You don't want any stress situation or something. I have to bring out a problem and get her perched.
Let me think. I put down as far as daytime activities that they describe like getting on a bus, dressing, or cooking a small meal, or that sort of think I don't see especially when I listen to her she is an intelligent person, you know, why that should be any particular problem. Pain could make it difficult but that's something she's got to get through.
Q:[2] So in terms of posturals, you know, balancing, stooping, kneeling, crouching, and crawling, climbing ramps and stairs do you have an opinion there?
A: Yes. I think that, again she doesn't have any severe limitation of joint movements and so forth and she should be able to do, I'm trying to pick the category after occasional is?
Q: Frequent.
A: Concept?
Q: Frequent, occasional, none.
A: I would say she probably could do if those things if a job demanded it frequently not just occasionally if it was the ...

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