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Mathias v. Berryhill

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

April 15, 2019

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


          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 meets the insured status requirements of the Social Security Act through December 31, 2019.
2. The claimant has not engaged in substantial gainful activity since September 12, 2014, the alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: fibromyalgia; chronic pain syndrome; lumbar spondylosis; spondylosis and degenerative disc disease in the cervical spine; cervical radiculopathy; status-post right C5-6 laminotomy and foraminotomy for decompression of the nerve root; right shoulder impingement syndrome; subacromial bursitis and SLAP tear; chrondromalacia of both patellae; obesity; major depressive disorder; and anxiety disorder (20 CFR 404.1529(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals 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 the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except no overhead reaching bilaterally. She is limited to frequent handling, fingering and feeling bilaterally. She is limited to occasional climbing of ramps and stairs, balancing, stooping, kneeling, crouching and crawling. She cannot climb ladders, ropes or scaffolds. She must avoid unprotected heights, moving mechanical parts and operating a motor vehicle. She can tolerate occasional exposure to extreme cold and heat, and humidity. She can tolerate exposure to moderate noise in the work environment. She is limited to performing simple, routine and repetitive tasks but not at a production-rate pace (e.g. assembly-line work). She is limited to simple work-related decisions. She is limited to occasional interaction with supervisors and coworkers. She cannot interact with the public but can be in proximity with the public. She is limited to tolerating occasional changes in a routine work setting.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on May 17, 1969 and was 45 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (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 using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled, ” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. 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 (20 CFR 404.1569 and 404.1569(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from September 12, 2014, through the date of this decision (20 CFR 404.1520(g)).

(Tr. 13-22).

         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 December 20, 2018. On February 7, 2019 the defendant filed a memorandum in support of the Commissioner's decision to which Plaintiff replied on March 11, 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.

         Plaintiff was born on May 17, 1969, and was considered a “younger person” as of the date she alleged her disability began. (Tr. 220). She has a bachelor's degree in accounting. (Tr. 160, 337). Ms. Ringenberg classified Plaintiff's past work as that of a paralegal, gas station cashier, press operator, and automobile assembler. (Tr. 195).

         Plaintiff testified that she had not worked or applied for work since September 12, 2014. (Tr. 160-161). She reported that earnings from TI Group received in the first quarter of 2015 were for short-term disability. (Tr. 160-161).

         On March 2015, state agency medical consultant, J.V. Corcoran, M.D. reviewed Plaintiff's claim at the initial level of review and projected a residual functional capacity for a limited range of light work with environmental, postural and manipulative limitations as of December 2015, which is 12 months after Plaintiff underwent surgery on her right shoulder. (Tr. 225- 229, 518-519). In April 2015, state agency psychological consultant, Kari Kennedy, Psy.D. reviewed Plaintiff's claim regarding her psychological impairments and concluded that her mental impairments were not severe and resulted in mild restriction of activities of daily living, social functioning, and in maintaining concentration, persistence or pace. (Tr. 223-224). Upon reconsideration, in July 2015, another state agency medical consultant, M. Brill, M.D., affirmed without change the prior projected residual functional capacity assessment. (Tr. 238-240). Another state agency psychological consultant, Joelle Larsen, Ph.D. affirmed without change the assessment and finding of Dr. Kennedy who indicated that the Plaintiff's mental impairments were not severe.

         On April 6, 2015, Plaintiff presented to Candace Martin, Psy.D. for a consultative psychological evaluation at the request of the Indiana DDB. (Tr. 596-600). At the exam, Plaintiff reported that she was filing for disability due to her physical complaints, though Dr. Martin noted that Plaintiff had an extensive mental health history and reported being molested by her father, raped by a boyfriend, and a history of inpatient treatment for an eating disorder and outpatient mental health treatment. (Tr. 596). Plaintiff reported that she had worked as a paralegal from 1997 to 2009 but quit that job because of the stress. (Tr. 597). She also reported working in a factory for three years. (Id.). Dr. Martin noted that Plaintiff seemed quite lethargic and uninterested in interacting in an appropriately social manner. She was slow to respond to questions, and her attention and concentration seemed marginal. (Tr. 597-598). Her mood seemed discouraged and apathetic. (Tr. 598).

         Dr. Martin concluded that Plaintiff evidenced signs of depression in the form of disturbance in sleep, appetite, anhedonia, and lethargy. Her weakness in cognitive functioning seemed to be evidence of her depression and social withdrawal rather than intellectual deficit. (Tr. 599). Dr. Martin diagnosed Plaintiff with major depressive disorder. (Id.).

         Records before the state agency included an October 2012 psychiatric evaluation from the Bowen Center. Plaintiff's diagnoses included major depressive disorder, recurrent, and “rule-out” diagnoses of post-traumatic stress disorder and eating disorder. (Tr. 429-434). At a follow-up appointment in November she was instructed to continue Celexa and to start therapy.

         Parkview Health Physician Group records reflect that Plaintiff presented to the office of Phillip Corbin, M.D. in 2014 regarding anxiety and depression. (Tr. 436-443). On August 25, 2014, she presented to her doctor's office with excessive worry, irritability, muscle tension and nervous/anxious behavior and was diagnosed with anxiety and given a prescription for Ativan and Prozac (Tr. 436-437). She felt a great deal of her tension and muscle pain was related to stress and anxiety. (Tr. 436). She was placed on leave from work through August 29, 2014. (Tr. 438). At a follow-up appointment in September 2014, Plaintiff reported that her anxiety and stress were slowly improving with medication. (Tr. 440).

         On September 17, 2014, Plaintiff presented to Dr. Corbin's office regarding neck and shoulder numbness radiating down her right arm after presenting to the emergency room with arm pain on September 12, 2014. (Tr. 444, 462-466). She was tearful, anxious, worried about her job, and in obvious discomfort. (Id.). An examination showed decreased right grip strength with weakness and strength reduced to 3/5 in the right upper extremity. (Tr. 445). She was instructed to take Tylenol #3 for severe pain and placed on leave from work. (Tr. 446). A September 2014 MRI of the cervical spine showed small disc protrusions at ¶ 5-6 and C6-7. (Tr. 447). Dr. Corbin diagnosed shoulder strain and paresthesia secondary to nerve irritation and recommended prednisone, a muscle relaxer, and therapy. (Tr. 451). Plaintiff returned in October and reported that she was experiencing no significant improvement of her symptoms with therapy and medication. (Tr. 454). She was instructed to remain off work. (Tr. 455).

         A right shoulder MRI from November 2014 showed mild cystic degeneration of the humeral head and fraying or rounding of the anterior labrum. (Tr. 469). Jason Hanna, M.D. with Fort Wayne Orthopaedics diagnosed right shoulder impingement syndrome and possible bicep tendinopathy. (Tr. 548-549). On December 24, 2014, Plaintiff underwent a right shoulder subacromial decompression and debridement. (Tr. 518-519). Following surgery she participated in occupational therapy with a goal of returning to work. (Tr. 493).

         In February 2015, Plaintiff presented as a new patient to Kevin Rahn, M.D. at Fort Wayne Orthopaedics and reported numbness and tingling in the arms and hands. (Tr. 544). Dr. Rahn noted that a MRI of the cervical spine from September 2014 showed a C5-6 disc bulge and C6-7 stenosis. (Id.). Dr. Rahn also noted that an EMG from Dr. Mark Zolman in December 2014 showed radiculopathy of C6. (Tr. 487, 544).

         In March 2015, Plaintiff presented to Dr. Corbin and reported that she was doing worse and had fallen on ice. (Tr. 528). In March 2015, Plaintiff also presented for a consultation with T.J. Curfman, M.D., and his impression was carpal tunnel, weakness, and depression. (Tr. 587-589). Dr. Curfman noted in April 2015 that ...

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