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Thomas v. Berryhill

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

October 18, 2018




         The Plaintiff, Denise Thomas, 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) making an arbitrary finding regarding the Plaintiff's residual functional capacity; and (2) failing to meet the requisite burden of proof at step five with regard to the conclusion that the Plaintiff could perform other work available in the national economy. For the reasons set forth below, the Court REVERSES and REMANDS this case for further proceedings in accordance with this Opinion and Order.


         In May 2013, the Plaintiff filed 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 13, 2012. (R. 182-194.) Her claims were denied initially on August 15, 2013, and upon reconsideration on November 12, 2013. (R. 100-07, 110-15.) An administrative law judge (ALJ) conducted a video hearing on April 9, 2015, at which the Plaintiff-who was represented by an attorney-and a vocational expert (VE) testified. (R. 31- 57.) On April 29, 2015, the ALJ denied the Plaintiff's application, finding she was not disabled as of her alleged onset date. (R. 16-25.) On September 16, 2016, the ALJ's decision became the final decision of the Commissioner when the Appeals Council denied the Plaintiff's request for review. (R. 1-3.) The Plaintiff filed this claim in federal court against the Acting Commissioner of the Social Security Administration on November 17, 2016 [ECF No. 1].


         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 13, 2012. (R. 17.)

         At 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 diabetes mellitus with neuropathy. (R. 18.) The ALJ found that this impairment 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 hypertension, hyperlipidemia, left hip pain, left carpal tunnel syndrome, and back pain 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), but modified as follows:

The claimant has the residual functional capacity to lift/carry 20 pounds occasionally and 10 pounds frequently; stand/walk 2 hours in an 8-hour workday; and sit 6 hours in an 8-hour workday. The claimant is capable of occasional postural activities, except no climbing of ladders. The claimant is limited to frequent handling.

(R. 20.)

         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 but that her statements concerning the intensity, persistence, and limiting effects of the symptoms were not entirely credible for the reasons explained in the decision. (R. 21.) For example, the ALJ noted that the Plaintiff testified she has some limitation in her activities of daily living but concluded that they are “not indicative of a totally disabled individual.” (Id.) The ALJ took issue with the fact that the Plaintiff alleged disabling lower extremity pain and problems walking but had “never been prescribed an ambulatory device, such as a cane, brace, or walker. She stated that her mother gave her a cane to use, but a cane was not prescribed by a medical source.” (Id.)[1] The ALJ classified the Plaintiff's allegations of pain and limitations as “out of proportion to the objective and clinical evidence of record and her treatment history.” (Id.) After touching on the relevant medical evidence, the ALJ stated:

Undoubtedly, the claimant has ongoing issues with her lower extremities as a result of neuropathy as seen on her physical examinations showing decreased strength and sensation and loss of modality and reflexes in her feet. However, generally her gait has been normal and she has had some relief of symptoms from Neurontin. Her EMG/NCS testing has shown no more than a mild degree of neuropathy. To account for her neuropathy, the claimant has been limited to work where she could sit for most of the day and would be limited to occasional postural activities, except no climbing of ladders. In terms of her lifting/carrying capabilities, the medical evidence does not support the claimant's contention that she can lift no more than 5 pounds. Other than some mild left upper extremity carpal tunnel, the claimant's upper extremity examinations have been generally normal. Her back pain is mild as well and would not significantly limit her lifting. She would be able to lift/carry 20 pounds occasionally and 10 pounds frequently. To account for her upper extremity symptoms, the claimant has also been limited to frequent, as opposed to constant, handling. This limitation is supported by the clinical findings showing normal fine finger movements, but positive Tinel's.

(R. 23.)

         With regard to the opinion evidence, the ALJ afforded the opinions of the State Agency medical consultants-who opined that the Plaintiff was capable of medium exertional level work with frequent postural activities but only occasional climbing of ladders/ropes/scaffolds/and balancing-“limited weight” because the evidence showed the Plaintiff was “more limited than the consultants found.” (Id.) The ALJ noted that the record did not contain any opinions from treating or examining physicians. (Id.)

         At step four, the ALJ must determine whether the claimant has the RFC to perform her past relevant work. §§ 404.1520(f), 416.920(f). In this case, the Plaintiff has past relevant work as a cosmetologist/hair dresser, which the ALJ found she was not able to perform. (R. 23-24.)

         Finally, at the last step of the sequential analysis, the ALJ must determine whether the claimant is able to make an adjustment to any other work. §§ 404.1520(g), 416.920(g). Relying on the VE's testimony, the ALJ concluded that “[considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform.” (R. 24.) The VE testified that the Plaintiff would be able to perform occupations in the positions of assembly, inspection, and clerking, specifically the following as defined in the Dictionary of Occupational Titles (DOT):

• Assembler (DOT 806.687-010, SVP 2, light, 2, 000 jobs in the State of Indiana, 350, 000 jobs in the national economy);
• Inspector (DOT 529.687-092, SVP 2, light, 1, 800 jobs in the State of Indiana, 325000 jobs in the national economy); and
• Information Clerk (DOT 237.367-018, SVP 2, light, 1, 200 jobs in the State of Indiana, 300, 000 jobs in the national economy).

(Id.) Thus, the ALJ found that the Plaintiff was not disabled as defined in the Social Security Act. (R. 25.)


         The decision of the ALJ is the final decision of the Commissioner when the Appeals Council denies a request for review. Liskowitz v. Astrue, 559 F.3d 736, 739 (7th Cir. 2009). The Social Security Act establishes that the Commissioner's findings as to any fact are conclusive if supported by substantial evidence. See Diaz v. Chater, 55 F.3d 300, 305 (7th Cir. 1995). Thus, the Court will affirm the Commissioner's finding of fact and denial of disability benefits if substantial evidence supports them. Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2009). Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Henderson v. Apfel, 179 F.3d 507, 512 (7th Cir. 1999).

         It is the duty of the ALJ to weigh the evidence, resolve material conflicts, make independent findings of fact, and dispose of the case accordingly. Richardson, 402 U.S. at 399- 400. The reviewing court reviews the entire record; however it does not substitute its judgment for that of the Commissioner by reconsidering facts, reweighing evidence, resolving conflicts in evidence, or deciding questions of credibility. See Diaz, 55 F.3d at 608. A court will “conduct a critical review of the evidence, ” considering both the evidence that supports, as well as the evidence that detracts from, the Commissioner's decision, and “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) (internal quotations omitted).

         When an ALJ recommends the denial of benefits, the ALJ must first “provide a logical bridge between the evidence and [his] conclusions.” Terry v. Astrue, 580 F.3d 471, 475 (7th Cir. 2009) (internal quotation marks and citation omitted). Though the ALJ is not required to address every piece of evidence or testimony presented, “as with any well-reasoned decision, the ALJ must rest its denial of benefits on adequate evidence contained in the record and must explain why contrary evidence does not persuade.” Berger v. Astrue, 516 F.3d 539, 544 (7th Cir. 2008). However, if substantial evidence supports the ALJ's determination, the ...

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