United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
William C. Lee, Judge
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
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).
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.
present matter, after consideration of the entire record, the
Administrative Law Judge (“ALJ”) made the
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
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
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).
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.
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.
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
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
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.)
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.)
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.)
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.)
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.