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Cannon v. Berryhill

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

March 4, 2019

LAURA CANNON, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          William C. Lee, Judge

         This matter is before the court for judicial review of a final decision of the defendant Commissioner of Social Security Administration denying Plaintiff's application for Disability Insurance Benefits (DIB), as provided for in the Social Security Act. Section 205(g) of the Act provides, inter alia, "[a]s part of his answer, the [Commissioner] shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based. The court shall have the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the [Commissioner], with or without remanding the case for a rehearing." It also provides, "[t]he findings of the [Commissioner] as to any fact, if supported by substantial evidence, shall be conclusive. . . ." 42 U.S.C. §405(g).

         The law provides that an applicant for DIB must establish an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to last for a continuous period of no less than 12 months. . . ." 42 U.S.C. §416(i)(1); 42 U.S.C. §423(d)(1)(A). A physical or mental impairment is "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. §423(d)(3). It is not enough for a plaintiff to establish that an impairment exists. It must be shown that the impairment is severe enough to preclude the plaintiff from engaging in substantial gainful activity. Gotshaw v. Ribicoff, 307 F.2d 840 (7th Cir. 1962), cert. denied, 372 U.S. 945 (1963); Garcia v. Califano, 463 F.Supp. 1098 (N.D.Ill. 1979). It is well established that the burden of proving entitlement to disability insurance benefits is on the plaintiff. See Jeralds v. Richardson, 445 F.2d 36 (7th Cir. 1971); Kutchman v. Cohen, 425 F.2d 20 (7th Cir. 1970).

         Given the foregoing framework, "[t]he question before [this court] is whether the record as a whole contains substantial evidence to support the [Commissioner's] findings." Garfield v. Schweiker, 732 F.2d 605, 607 (7th Cir. 1984) citing Whitney v. Schweiker, 695 F.2d 784, 786 (7th Cir. 1982); 42 U.S.C. §405(g). "Substantial evidence is defined as 'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Rhoderick v. Heckler, 737 F.2d 714, 715 (7th Cir. 1984) quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1410, 1427 (1971); see Allen v. Weinberger, 552 F.2d 781, 784 (7th Cir. 1977). "If the record contains such support [it] must [be] affirmed, 42 U.S.C. §405(g), unless there has been an error of law." Garfield, supra at 607; see also Schnoll v. Harris, 636 F.2d 1146, 1150 (7th Cir. 1980).

         In the present matter, after consideration of the entire record, the Administrative Law Judge (“ALJ”) made the following findings:

1. The claimant last met the insured status requirements of the Social Security Act on December 31, 2013.
2. The claimant did not engage in substantial gainful activity during the period from her alleged onset date of April 21, 2008, through her date last insured of December 31, 2013 (20 CFR 404.1571 et seq.).
3. Through the date last insured, the claimant had the following severe impairments: fibromyalgia, a back condition, a neck condition and obesity (Exhibits 1F to 36F)(20 CFR 404.1520(c)).
4. Through the date last insured, the claimant 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 (20 CFR 404.1520(d). 404.1525 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to perform the full range of sedentary work as defined in 20 CFR 404.1567(a).
6. Through the date last insured, the claimant was unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on October 1, 1965, and was 48 years old, which is defined as a younger individual age 18-44, on the date last insured. The claimant subsequently changed age category to younger individual age 45-49 (20 CFR 404.1563).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564).
9. Transferability of job skills is not material to the determination of disability because applying the Medical-Vocational Rules directly supports a finding of “not disabled, ” whether or not the claimant has transferable job skills (See SSR 82-41 and CFR Part 404, Subpart P, Appendix 2).
10. Through the date last insured, considering the claimant's age education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed (20 CFR 404.1569 and 404.1569(a)).
11. The claimant was not under a disability, as defined in the Social Security Act, at any time from April 21, 2008, the alleged onset date, through December 31, 2013, the date last insured (20 CFR 404.1520(g)).

(Tr. 17- 29).

         Based upon these findings, the ALJ determined that Plaintiff was not entitled to disability insurance benefits. The ALJ's decision became the final agency decision when the Appeals Council denied review. This appeal followed.

         Plaintiff filed her opening brief on November 5, 2018. On January 9, 2019, the defendant filed a memorandum in support of the Commissioner's decision, to which Plaintiff replied on January 24, 2019. Upon full review of the record in this cause, this court is of the view that the ALJ's decision should be remanded.

         A five step test has been established to determine whether a claimant is disabled. See Singleton v. Bowen, 841 F.2d 710, 711 (7th Cir. 1988); Bowen v. Yuckert, 107 S.Ct. 2287, 2290-91 (1987). The United States Court of Appeals for the Seventh Circuit has summarized that test as follows:

The following steps are addressed in order: (1) Is the claimant presently unemployed? (2) Is the claimant's impairment "severe"? (3) Does the impairment meet or exceed one of a list of specific impairments? (4) Is the claimant unable to perform his or her former occupation? (5) Is the claimant unable to perform any other work within the economy? An affirmative answer leads either to the next step or, on steps 3 and 5, to a finding that the claimant is disabled. A negative answer at any point, other than step 3, stops the inquiry and leads to a determination that the claimant is not disabled.

Nelson v. Bowen, 855 F.2d 503, 504 n.2 (7th Cir. 1988); Zalewski v. Heckler, 760 F.2d 160, 162 n.2 (7th Cir. 1985); accord Halvorsen v. Heckler, 743 F.2d 1221 (7th Cir. 1984). From the nature of the ALJ's decision to deny benefits, it is clear that Step 5 was the determinative inquiry.

         Between mid 2007 and December 2016, Plaintiff sought primary care treatment at Marion Family Practice, primarily with Dr. James Orrell. (Tr. 415-54, 703-06, 1038-51.) Over the course of eight years, Dr. Orrell saw Plaintiff for fibromyalgia, chronic pain syndrome, migraines, nausea, chronic medication use, irritable bowel syndrome, hypersomnia, and anxiety, among other conditions. (Id.) Additionally, during this time, Dr. Orrell documented Plaintiff's obesity. (Id.) Dr Orrell would often prescribed medication management and refer Plaintiff for additional testing or treatment. (Tr. 415-54, 703-06, 1038-51.) In 2011, Dr. Orrell “confirmed that [Plaintiff] is permanently disabled and can not engage in any substantial gainful activity because of physical condition…[which] began on 4-21-2008.” (Tr. 427.) In December 2016, Dr. Orrell opined that Plaintiff “should qualify for full disability. She is incapable because of her chronic pain, fibromyalgia and spine abnormalities to work in any capacity.” (Tr. 1039.)

         Plaintiff sought pain management treatment with Eric Schreier, D.O., at the Neuro Spine & Pain Center. (Tr. 308-84.) Between May 2007 and July 1, 2008, Plaintiff saw Dr. Schreier on 12 occasions. (Tr. 323, 330, 334, 341, 345, 353, 362, 366, 371, 373, 380.) After prescription medication was unsuccessful, Plaintiff underwent cervical injections in September 2007. (Tr. 359-60.) Unfortunately, there was no improvement in her conditions. (Tr. 353, 362.) Dr. Schreier continued prescription management treatment (see e.g., Tr. 321, 330, 334, 341, 345, 353), and recommended additional testing (Tr. 318, 321-22). Plaintiff was discharged after she was unable to appear for a pill count the same day as Dr. Schreier requested. (Tr. 314-15.)

         In 2008, Plaintiff underwent mental health treatment at Howard Regional Health System for her depression and anxiety. (Tr. 1052-56.) She had four counseling sessions and was prescribed medication management. (Id.)

         On June 23, 2008, Plaintiff sought treatment with K. Chandrasekhar, M.D., a board certified rheumatologist. (Tr. 385-89.) On exam, Plaintiff's neck movements were very limited; she had severe muscle spasms present in the cervical spine and tenderness in her neck and shoulder. (Tr. 388.) Multiple fibromyalgia tender points were noted. (Id.) Dr. Chandrasekhar diagnosed Plaintiff with fibromyalgia, chronic pain syndrome, and chronic neck pain. (Id.) Dr. Chandrasekhar recommended medication management and hoped that, under less stress, Plaintiff's symptoms might improve. (Tr. 389.) Plaintiff returned in September and October 2008. (Tr. 385-86.) On those occasions, Dr. Chandrasekhar noted that Plaintiff was mildly/ severely depressed. (Id.) Examination demonstrated a decreased range of motion in the neck and “severe” tenderness. (Id.) She had multiple positive fibromyalgia tender points. (Id.) She also had “extreme” tenderness with a limited range of motion in her lumbar spine and a positive straight leg raising test. (Id.) On these two sessions, Dr. Chandrasekhar affirmed his previous diagnoses. (Tr. 385-86.) Dr. Chandrasekhar opined that despite medication, Plaintiff was not getting enough pain relief. (Tr. 385.)

         On June 23, 2009, at the request of the State Agency, Plaintiff presented herself for a consultative psychological examination with Ceola Berry, Ph.D., HSPP. (Tr. 390-92.) Examination was largely unremarkable. (Id.) However, Dr. Berry opined that Plaintiff's judgment “presented as constrained due to morbid obesity with diagnosis of degenerative disc disease and s/p herniated disc surgeries.” (Tr. 392.) Dr. Berry noted that Plaintiff's ability to work would primarily be affected by her perceived physical limitations. (Id.) Dr. ...


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