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Bernarducci v. Berryhill

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

March 13, 2019

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff Lisa Marie Bernarducci seeks review of the final decision of the Commissioner of the Social Security Administration denying her application for disability insurance benefits. The Plaintiff claims that the Administrative Law Judge (ALJ) incorrectly considered evidence related to the Plaintiff's fibromyalgia, obstructive sleep apnea, and obesity in assessing the Plaintiff's Residual Functional Capacity (RFC). The Plaintiff also argues that the ALJ overemphasized the Plaintiff's daily activities in the determination of whether the Plaintiff was disabled.


         The Plaintiff filed an application for disability insurance benefits under Title II of the Social Security Act on August 21, 2014, and supplemental security income benefits under Title XVI of the Act on October 13, 2014. (R. at 19, ECF No. 11.) She alleged disability beginning on January 1, 2011. (Id.) After her claim was denied initially, as well as upon reconsideration, the Plaintiff requested a hearing before an ALJ. (Id.) The Plaintiff, who was represented by a non-attorney representative, participated in a hearing before the ALJ on August 22, 2016. (Id.) A vocational expert, Scott B. Silver, also appeared at the hearing. On December 16, 2016, the ALJ issued a written decision applying the five-step sequential evaluation process. See 20 C.F.R. §§ 404.1520(a), 416.920(a). (R 20.)

         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 and 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 had not engaged in substantial gainful activity (SGA) since January 1, 2011, the alleged onset date. (R. 21.)

         In step two, the ALJ determines whether the claimant has a severe impairment limiting the ability to do basic work activities pursuant to § 404.1520(c) and 416.920(c). Here, the ALJ determined that the Plaintiff's impairments-including right degenerative osteoarthritis in the lateral cuneiform cuboid joint; right mid-foot primary osteoarthritis; left plantar fasciitis; right pes planus and peroneal tendinitis; obesity; cervical degenerative disc disease (DDD)/spondylosis; fibromyalgia, occipital neuralgia and myalgia/myositis-were severe impairments because they significantly limited the Plaintiff's ability to perform basic work activities. (R. 21-22.) The ALJ determined that the Plaintiff's obstructive sleep apnea (OSA), vision problems, hypertension, and cubital/carpal tunnel syndrome did not give rise to the level of severe impairments. (R. 22.)

         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, rises to this level, she earns a presumption of disability “without considering her age, education, and work experience.” § 404.1520(d); § 416.920(d). But, if the impairment(s), either singly or in combination, falls short, an ALJ must move to step four and examine the claimant's RFC-the types of things she can still do physically, despite her limitations-to determine whether she can perform this “past relevant work, ” § 404.1520(a)(4)(iv) and § 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) and § 416.920(a)(4)(v).

         In the instant case, upon review of the medical evidence, the ALJ concluded at step three that the Plaintiff's impairments, either singly or in combination, do not meet or equal any of the listings in Appendix 1 (R. 24), and, at step four, that the Plaintiff has the RFC to perform light work, as defined by § 404.1567(b) and 416.967(b),

except: prior to July 2013, the claimant was limited to lifting, carrying, pushing and pulling 10 pounds frequently 20 pounds occasionally. The claimants could sit at least six hours in an eight-hour workday, and stand and/or walk six hours in an eight-hour workday. The claimant could not climb ropes, ladders, or scaffolds, but could occasionally kneel, crouch, crawl, balance, could occasionally bend and stoop in addition to what is required to sit, and could occasionally use ramps and stairs. Aside from the use of ramps and stairs on an occasional basis, the claimant could not work upon uneven surfaces. The claimant would need to avoid work within close proximity to very loud noises such as a fire alarm or very bright flashing lights such as a strobe more than occasionally, and need to alternate postural positions every 20 minutes. Since July 2013, the claimant had all the above but is also limited to standing and/or waiting two hours in an eight-hour workday.

(R. 25.)

         At the final step of the evaluation, the ALJ determined that the Plaintiff is not disabled because the Plaintiff is capable of performing past relevant work consistent with the Plaintiff's RFC. (R. 33-34.)

         The Plaintiff sought review of the ALJ's decision by the Appeals Council. (R. 1.) The Appeals Council subsequently denied review (R. 1), making the ALJ's decision the final decision of the Commissioner. Liskowitz v. Astrue, 559 F.3d 736, 739 (7th Cir. 2009). The Plaintiff now seeks judicial review under 42 U.S.C. § 405(g).

         STANDARD ...

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