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Barnett v. Berryhill

United States District Court, N.D. Indiana, South Bend Division

March 15, 2019

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



         On January 30, 2018, Plaintiff Scott Barnett filed a complaint in this Court seeking review of the final decision of the Defendant Commissioner of Social Security denying his applications for social security disability benefits [DE 1]. Although Barnett filed applications for both disability insurance benefits and supplemental security income, this appeal only concerns the denial of Barnett's application for disability insurance benefits based on the determination that Barnett was not disabled on or before December 31, 2013 (which represents the date that Barnett was last insured). The matter is briefed and ripe for decision [DEs 17-19]. For the reasons stated below, the Court remands this matter to the Commissioner for further proceedings.

         I. FACTS

         Barnett alleges that as of October 28, 2013, he has been rendered disabled on account of a host of physical issues, including a reflux/esophageal impairment, bilateral hip avascular necrosis (this is, death of bone tissue due to a lack of blood supply), bilateral knee arthritis, and degenerative disc disease. Most relevant to this appeal is Barnett's reflux/esophageal impairment and the Administrative Law Judge's (“ALJ”) discounting its claimed severity. Interestingly, the ALJ's version of Barnett's medical history with respect to his reflux/esophageal problem [DE 12 at 23-24] stands in contrast to the Commissioner's summary [DE 18-1 at 2] and the actual evidence of record.

         More specifically, the ALJ explained that, “[t]he record indicates the claimant also began to have complaints of regurgitation and reflux in 2014.” Diagnostic tests revealed that Barnett suffered from gastroesophageal reflux and a hiatal hernia, for which Barnett underwent a laparoscopic fundoplication in October of 2014. Following the surgery, Barnett was noted as “doing well.” According to the ALJ, it wasn't until 2016, when Barnett developed worsening dysphagia and endured significant weight loss due to difficulties with swallowing. The ALJ then wrote: “As a result, the claimant underwent nine dilations and two stents. (Exhibit B19F). However, a CT scan of his chest in September of 2016 revealed [that] the second stent was grossly patent, and the claimant reported [that] his dysphagia had improved after the last stenting procedure (Exhibit B19F/6).” The ALJ further noted that since Barnett's alleged onset date, his records showed that his abdomen was making normal bowl sounds and his neck appeared normal.

         On the other hand, the Commissioner's brief medical summary of Barnett's reflux/esophageal impairment states: “Plaintiff had no vomiting as of April 18, 2013 and June 5, 2014 (Tr. 436, 468). The record documents ‘worsening reflux' as of July 7, 2014, with multiple surgeries thereafter, and even more worsening of symptoms in 2016 (Tr. 23, 540, 772-86).”

         Clearly then, the ALJ's version indicates that Barnett's reflux/esophageal problems only started in 2014, but was treated by October 2014 to the point that Barnett was “doing well” up until 2016. On the other hand, the Commissioner's version indicates that Barnett's reflux/esophageal impairment became “worse” by July 2014, and that despite continual treatment (including “multiple” surgeries), the condition continued to become progressively worse.

         The actual record evidence concerning Barnett's gastroesophageal reflux disease and esophageal stricture indicates that Barnett quit working in October 2013 as a limo driver because he could not handle his back pain, hip pain, and leg numbness which was caused from too much sitting and lifting of luggage (R. at 42). Barnett also testified[1] that he could not have handled a fulltime job that required mostly sitting, with a sit-stand option, because his reflux/esophageal problems caused him to unpredictably vomit three or four times every day for no apparent reason (R. at 44). In fact, when he was chauffeuring passengers, he tried to vomit in a cup. Barnett's testimony was consistent with the complaints that he made to his treating doctors in June through September 2014 (R. at 535, 540, 600, 619, 693). An esophagogram from July 24, 2014, evidenced that Barnett suffered from gastroesophageal reflux (R. at 599). Barnett's symptoms served as the basis for his undergoing a laparoscopic fundoplication in October 2014 (R. at 688-93). However, Barnett indicated that the surgery didn't help (and this fact was repeatedly documented in his medical records). Rather than vomiting food, he began vomiting bile and lost forty pounds after not being able to eat for almost a year (R. at 47-52, 709-70).

         Barnett's medical records also reveal that since 2014, he has had approximately ten procedures to dilate or stretch his esophagus, including the placement of two esophageal stents and a five-day hospitalization wherein he was diagnosed with dysphagia, epigastric abdominal pain, vomiting, unintentional weight loss, and a history of gastroesophageal reflux disease. The placement of the second stent allowed him to at least eat soft foods, but he still vomited. By late 2016, Barnett had suffered from several years of chronic vomiting (up to eight times a day) and was scheduled to have an esophago-gastrectomy with reconstruction (or as Barnett put it, a “rebuild[ing]” of his esophagus) (R. at 46-47, 777). Because of Barnett's esophageal problem and inability to eat, he continually has very little energy (R. at 59-63, 774). These symptoms, in addition to his ongoing pain, have caused Barnett to rest up to eighteen hours a day in a recliner (R. at 59). Barnett confirmed for the ALJ that he intended to go through with the esophago-gastrectomy with reconstruction, as scheduled (R. at 47).

         On July 24 and September 27, 2014, reviewing state agents opined that Barnett's projected residual functional capacity (“RFC”)[2] as of October 27, 2014 (or, twelve months after Barnett's onset date) would indicate that Barnett could perform sedentary work (R. at 91-108, 111-30). Accordingly, Barnett's applications were denied initially and on reconsideration.

         At the hearing before the ALJ, the VE's testimony was based strictly on the (relevant) hypothetical posed to him, which offered an assigned RFC of sedentary work, limited by various exertional and environmental limitations (none of which pertained to additional time for breaks or being off-task) (R. at 64-71). Per the VE, with this RFC in mind, Barnett would be able to perform work as an ampoule sealer, telephone quote clerk, and charge account clerk.

         The ALJ issued a decision on December 21, 2016, denying Barnett disability benefits and concluding that he was not disabled under the Social Security Act because he was able to perform other work in the economy. However, because the ALJ determined that Barnett was capable of performing only sedentary work, once Barnett turned fifty years old on August 4, 2015, the ALJ recognized that Barnett was automatically deemed disabled by reason of his age and the direct application of Medical-Vocational Rule 201.14.

         The Appeals Council then denied Barnett's request for review which made the ALJ's decision the final determination of the Commissioner. Schomas v. Colvin, 732 F.3d 702, 707 (7th Cir. 2013). Barnett seeks review of the Commissioner's decision that he was not disabled on or before December 31, 2013 (and until his fiftieth birthday), thereby invoking this Court's jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3).

         II. ...

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