Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Daugherty v. Berryhill

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

May 13, 2019

SARITA DAUGHERTY, 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, 2015 (Ex. B-10D).
2. The claimant engaged in substantial gainful activity but not at all times after the alleged onset date (20 CFR 404.1520(b), 404.1571 et seq., 416.920(b) and 416.971 et seq.).
3. The claimant has the following severe impairments: fibromyalgia, morbid obesity, diabetes mellitus, diabetic neuropathy, obstructive sleep apnea, arthritis in the knees and feet/ankles, disorders of the back (including retrolisthesis of L5 to S1, a hemangioma at ¶ 3, and degenerative and discogenic changes at multiple levels of the lumbar spine with foraminal stenosis at ¶ 4-5 and L5-S1 and lower extremity radiculopathy), anxiety/panic disorder, and depression (20 CFR 404.1520(c) and 416.920(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, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except that she needs a sit/stand option and she is not able to climb ladders, ropes, or scaffolds or crawl at all. She can occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and reach overhead with either of her upper extremities. She can frequently handle and finger and she must avoid exposure to extreme heat and cold, wetness, humidity, noise, vibrations, fumes, odors, dust, gases, poorly ventilated areas, and hazards, such as dangerous machinery and unprotected heights. She is also limited to simple, routine, repetitive tasks and instructions that do not involve more than occasional changes (and these changes must be gradually introduced). She cannot work at assembly-line pace. She can have frequent interactions with co-workers and only occasional interactions with the general public.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on January 31, 1969 and was 41 years old, which is defined as a younger individual age 18-44, on the alleged disability onset date. The claimant subsequently changed age category to a younger individual age 45-49 (20 CFR 404.1563 and 416.963).
8. The claimant has at least a high school education (GED) and is able to communicate in English (20 CFR 404.1564 and 416.964).
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, 404.1569(a), and 416.969(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from June 1, 2010, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

(Tr. 12- 21).

         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 January 16, 2019. On February 26, 2019 the defendant filed a memorandum in support of the Commissioner's decision to which Plaintiff replied on March 13, 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.

         The following facts are relevant to the issues presented in this case. In 2009, Plaintiff was seen at the emergency room (“ER”) on 10 occasions for multiple complaints. (See Tr. 768-79 (on 01/10/09 for cough and sore throat), Tr. 781-93 (on 03/11/09 for vaginal pressure and pain), Tr. 797-804 (on 04/06/09 for ear and sinus pain), Tr. 808-18 (on 05/23/09 for headache), Tr. 821-30 (on 06/05/09 for back pain), Tr. 833-41 (on 07/14/09 for neck pain), Tr. 844-54 (on 08/02/09 for headaches, weakness, dizziness, and swelling in her lower extremities), Tr. 862-70 (on 08/10/09 for dizziness and headache), Tr. 605-12 (on 08/30/09 for bilateral lower extremity swelling and shortness of breath), and Tr. 613-20 (on 11/30/09 for low back pain).)

         In addition to these ER visits, throughout 2009, Plaintiff also sought treatment from Dr. Cara Connors at Family Physicians, Sevierville. (Tr. 646-57.) During these sessions, Dr. Connors diagnosed Plaintiff with (1) vertigo, (2) headache, (3) edema, (4) arthralgia, (5) anxiety, (6) depression, (7) asthma, and (8) bursitis of the hip, among other conditions. (Id.) Abnormalities were noted on exam (Tr. 648, 650, 653) and Dr. Connors often prescribed medication and referred Plaintiff for additional treatment or testing (Tr. 646-57).

         On December 2, 2009, Plaintiff underwent a whole-body bone scan. (Tr. 878.) This demonstrated possible degenerative changes in the lumbar spine and other findings which required additional consideration. (Id.)

         A lumbar spine MRI taken on December 30, 2009 revealed mild grade 1 retrolisthesis of the L5 relative to the S1 (degenerative in nature), with associated posterior disc bulge, and post element degenerative changes resulting in bilateral neural foraminal narrowing. (Tr. 885.)

         In 2010, Plaintiff was seen at the ER on eight occasions for multiple complaints. (See Tr. 720-25 (on 02/14/10 for respiratory complaints), Tr. 726-30 (on 02/16/10 for laryngitis), Tr. 731-34 (on 03/16/10 for a sore throat), Tr. 735-39 (on 04/14/10 for neck pain), Tr. 740-46 (on 05/10/10 for pain after a fall), Tr. 747-53 (on 07/06/10 for abdominal pain), Tr. 754-58 (on 09/17/10 for leg and hip pain), and Tr. 759-63 (on 10/18/10 for body pain).) During this time, Ms. Daugherty also continued her primary care treatment sessions with Dr. Connors. (Tr. 622-45.) In addition to Dr. Connor's previous diagnoses, Dr. Connor also diagnosed Plaintiff with (1) back pain, (2) obesity, (3) degenerative disc disease, (4) nausea, (5) insomnia, and (6) fibromyalgia, among other conditions. (Id.) Abnormalities were noted on exam (Tr. 626, 629, 632, 638, 641, 644, ) and Dr. Connors continued Plaintiff's medication management and treatment referrals (Tr. 622-45).

         Because of her continued complaints of back pain, on February 10, 2010, Plaintiff underwent a therapy evaluation. (Tr. 715-19.) She was very tender bilaterally to palpations in the low back area. (Tr. 717.) She had a positive straight leg raise test on the left. (Id.) She had reduced strength and increased pain upon testing. (Tr. 716.) Plaintiff's short- and long-term goals were assessed, and a treatment plan was prepared. (Tr. 718.) Unfortunately, Plaintiff was unable to maintain her appointments, and she was discharged after two “no shows.” (Tr. 712-14.)

         In late 2010, Plaintiff was seen at Grant Blackford Mental Health for her (1) major depressive disorder, recurrent, severe without psychotic features, and (2) generalized anxiety disorder. (Tr. 990-97, 1013-15.) She had marked deficits in: worthlessness or guilt, fatigue, insomnia or hypersomnia, depressed mood, decreased concentration, and lack of interest. (Tr. 990.) She also had excessive anxiety and worry, difficult to control anxiety, restlessness, poor concentration, muscle tension, and irritability. (Id.) Part of her stressors were her inability to pay for treatment and inability to access healthcare resources. (Tr. 993.) She was assigned a Global Assessment of Functioning (GAF) score of 50, indicating serious symptoms or serious impairment in functioning. (Tr. 994.) A treatment plan was created to target Plaintiff's symptoms. (Id.) At her first session on November 30, 2010, Plaintiff did not have insurance and her providers were “limited as far as what kind of medication to put her on.” (Tr. 997.) Plaintiff returned one month later, without any improvement. (Tr. 1013-15.)

         In late 2010, and then throughout 2011, 2012, and 2013, Plaintiff sought treatment with Dr. Julie Utendorf at Family Practice Associates, LLP. (Tr. 1050-54, 1104-06.) During this time, Plaintiff was treated for (1) fibromyalgia, (2) depression with anxiety features, (3) right arm swelling and edema with carpal tunnel syndrome, (4) history of osteoporosis, (5) history of chronic obstructive pulmonary disease (“COPD”), (6) weight gain, (7) morbid obesity, (8) history of probable sleep apnea, (9) chronic pain, and (10) chronic depression, among other conditions. (Tr. 1050-54, 1104-06.) Examinations revealed abnormalities, including: (1) “exquisitely” (Tr. 1104, 1106) tender to touch (Tr. 1104, 1105, 1106); (2) swelling on the distal forearm and hands with abnormal sensation (Tr. 1105); (3) limited grip strength (Tr. 1105); (4) obesity (Tr. 1101, 1104, 1105, 1106); (5) peripheral trace edema (Tr. 1105, 1106); and, (6) limited range of motion (Tr. 1104). Plaintiff was prescribed medication management and provided referrals for additional testing and treatment. (Tr. 1050-54, 1104-06.)

         On January 20, 2011, at the request of the State Agency, Plaintiff presented herself for a consultative psychological examination with Ceola Berry, Ph.D., HSPP. (Tr. 1016-18.) On exam, Plaintiff's mood was dysthymic with congruent, weepy, affective expressions. (Tr.1017.) While she was cooperative, she had a subdued interpersonal energy and reported depressive periods as chronic and often debilitating. (Id.) Plaintiff's “energy level waned considerably throughout the examination with appearance of frozen tears.” (Tr. 1018.) Dr. Berry diagnosed Plaintiff with major depressive disorder, recurrent, severe. (Id.) Dr. Berry assigned a GAF score of 59 (id.), indicating moderate symptoms or moderate impairment in functioning. Dr. Berry opined that Plaintiff's ability to work would be primarily affected by her perceived physical limitations and secondarily by mood states. (Tr. 1018.)

         On January 25, 2011, at the request of the State Agency, Plaintiff presented herself for a consultative physical examination with Dr. Melanie Gatewood. (Tr. 1019-23.) Plaintiff's height was measured at 64 inches and she weighed 299 pounds. (Tr. 1020.) Dr. Gatewood noted that Plaintiff was “obese, very tearful, and in lots of pain during the exam.” (Id.) On exam, Plaintiff was very painful to the touch due to presence of tender points. (Tr. 1021.) Her gait was slow; she did not have the ability to stand on heels or toes and she refused to attempt the toe-walk. (Id.) Although she did the heel-walk, it was poor, and she was very unbalanced and needed support to complete the tandem walk. (Id.) Plaintiff was unable to lie flat on her back on the exam table. (Id.) She got on and off the exam table slowly. (Id.) Motor strength was decreased 4/5 in the upper and lower extremities. (Tr. 1021.) Dr. Gatewood noted: “Clinical evidence does possibly support the need for an ambulatory aid….” (Id.) There was an abnormal, very achy sensation in the upper and lower extremities. (Id.) She had a limited range of motion in her knees and hip exam could not be formally tested. (Id.) Dr. Gatewood diagnosed fibromyalgia, peripheral neuropathy, and multi-articular arthritis. (Tr. 1021-22.)

         On January 27, 2011, a psychological consultant for the State Agency opined that Plaintiff's major depression and generalized anxiety disorder were severe impairments, but would not preclude the ability to perform simple tasks and superficial interactions with co-workers and supervisors. (Tr. 1024-40.) This assessment was affirmed by another State Agency psychological consultant. (Tr. 1056.)

         On February 8, 2011, a medical consultant for the State Agency opined that Plaintiff's obesity and osteoarthritis were severe impairments, but that she could lift 20 pounds occasionally, 10 pounds frequently; stand/walk at least two hours in an 8-hour workday; and, sit for six hours in an 8-hour workday. (Tr. 1042-49.) This assessment was affirmed by another State Agency medical consultant. (Tr. 1055.)

         In 2012, Plaintiff sought treatment at the Centers for Pain Relief, mostly with Sara Nevil, NP. (Tr. 1109-87.) Between August 2012 and December 2013, Plaintiff was seen on 15 occasions, during which time she was diagnosed with: (1) pain neck/cervicalgia, (2) cervical spondylosis/arthropathy, (3) cervical syndrome/occipital neuralgia, (4) spasm of muscle, (5) myalgia and myositis, (6) pain, thoracic, (7) pain in joint, (8) radiculopathy, lumbar/thoracic, (9) sacroiliitis, (10) pain, lumbar, (11) lumbar spondylosis/arthropathy, (12) Von Willebrand's Disease (i.e., a bleeding disorder), (13) chronic pain syndrome, (14) cervical dystonia (spasmodic torticollis), and (15) chronic daily headache, among other conditions. (Id.) Multiple examinations were performed during these visits. (Id.)

         Abnormal findings from lumbar spine and lower extremity testing included: (1) pain (Tr. 1112, 1118, 1133); (2) tenderness (Tr. 1112, 1118, 1123, 1128, 1133, 1138, 1144, 1149, 1154, 1159, 1164, 1169, 1174, 1180, 1186); (3) positive straight leg raise (Tr. 1112, 1128, 1133, 1138, 1154, 1164, 1174, 1180, 1186); (4) abnormal torque bilaterally (Tr. 1112, 1118, 1123, 1128, 1133, 1138, 1144, 1149, 1154, 1159, 1164, 1169, 1174, 1180, 1186); (5) abnormal Patrick (or FABER) test (i.e., a test helpful in detecting limited hip motion and distinguishing hip pain from sacroiliac disease) results bilaterally, largely with radicular symptoms present (Tr. 1112, 1118, 1123, 1128, 1133, 1138, 1144, 1149, 1154, 1159, 1164, 1169, 1174, 1180, 1186); and positive flip's test (i.e., a test to determine nerve irritation related to the spine) bilaterally (Tr. 1118). Abnormal findings from cervical and thoracic testing included: (1) tenderness (Tr. 1112, 1118, 1123, 1133, 1138, 1144, 1149, 1154, 1159, 1164, 1174, 1180, 1185-86); limited range of motion (Tr. 1112, 1133, 1138, 1144, 1149, 1159, 1164, 1169, 1174, 1180, 1186); positive Spurling's test indicating radicular pain (Tr. 1123, 1133, 1180); and positive occipital Tinel's sign indicating nerve tingling (Tr. 1118, 1144, 1149, 1154, 1169, 1180, 1185-86). Cranial exams noted positive Tinel's sign or occipital tenderness. (Tr. 1118, 1180, 1185.) Plaintiff was often prescribed medication for her conditions. (Tr. 1109-87.) Additionally, she was prescribed a cane. (Tr. 1134.)

         A polysomnography taken on August 23, 2013 demonstrated (1) moderate obstructive sleep apnea, (2) obesity hypoventilation syndrome, and (3) moderate periodic limb movement disorder with significant arousals. (Tr. 1067-68.) Plaintiff needed a CPAP (i.e., Continuous Positive Airway Pressure used as a treatment for breathing problems such as sleep apnea) and clinical follow-up was strongly recommended. (Id.) Weight loss and other lifestyle measures were also recommended. (Id.)

         On September 6, 2013, Plaintiff underwent another sleep study (Tr. 1062-64.) Testing noted that Plaintiff required Adaptive Servo Ventilation (ASV) titration (i.e., a noninvasive ventilatory treatment option created specifically for the treatment of adults who have obstructive sleep apnea and central and/or complex sleep apnea). (Tr. 1064.) On this occasion, interventions were not able to correct her central sleep apnea. (Id.) Weight loss and other lifestyle measures were recommended. (Id.)

         On April 18, 2014, Plaintiff was seen at the ER for back and muscle pain after climbing a few stairs. (Tr. 1234-35.) She had tenderness on exam. (Tr. 1235.) She was diagnosed with chronic back pain and fibromyalgia, given care instructions, and discharged home. (Id.)

         On July 24, 2014, Plaintiff was seen at the ER for abdominal pain, radiating to her back. (Tr. 1193-97.) Plaintiff was admitted for inpatient treatment. (Tr. 1196.) She stayed for seven days. (Tr. 1203.) Discharge diagnoses from July 30, 2014 included acute pancreatitis with secondary diagnoses including hypertension, gastroesophageal reflux disease (“GERD”), degenerative disc disease, and fibromyalgia. (Tr. 1203.)

         In October 2014, a medical consultant for the State Agency determined that Plaintiff's conditions were not severe; a psychological consultant determined that Plaintiff did not have a mental medically determinable impairment. (Tr. 82-83.)

         Plaintiff was seen on two occasions at the ER in late 2014. (Tr. 1238-42, 1273-75.) On the first, she complained of a cough and pain, and testing demonstrated pneumonia in the left lung. (Tr. 1248.) She returned, with similar complaints, but testing showed no active disease. (Tr. 1275.) On both occasions, she was discharged the same day with medications. (Tr. 1242, 1275.)

         Plaintiff continued to seek treatment with Dr. Utendorf throughout 2015. (Tr. 1370- 1423.) Dr. Utendorf saw Plaintiff on eight occasions that year for treatment of her (1) uncontrolled diabetes with associated autonomic neuropathy, (2) sinusitis, (3) fibromyalgia, (4) asthma, (5) anxiety, (6) depression (major recurrent), and (7) pain, among other conditions. (Id.) Examinations noted the following abnormalities: (1) slow gait (Tr. 1370); (2) tenderness to touch (Tr. 1370, 1377, 1391, 1396); (3) absent filaments in the feet (Tr. 1370, 1391, 1399); (4) diminished pulses in the feet (Tr. 1399); and, (5) obesity (Tr. 1382, 1390-91). Dr. Utendorf often prescribed medication management and referrals for treatment or testing. (Tr. 1370-1423.)

         At the request of the State Agency, on February 22, 2015, Plaintiff presented herself for a consultative physical examination with Dr. H.M. Bacchus, Jr. (Tr. 1284.) On exam, Plaintiff had a flat affect and mildly depressed mood. (Tr. 1285.) Plaintiff had a slightly antalgic gait favoring the left lower extremity; she was unable to hop and had difficulty squatting. (Id.) She had tenderness to palpation and range of motion in the lumbosacral spine. (Id.) Range of motion was limited in her neck, lower back, shoulders, knees, hips, and ankles. (Tr. 1285, 1289.) She had positive trigger point tenderness across the upper back and posterior shoulders. (Tr. 1285.) She had reduced grip strength bilaterally. (Id.) Her fine and gross dexterity were slow. (Id.) An xray of the lumbar spine taken at this exam demonstrated multilevel degenerative changes in the lower lumbar spine. (Tr. 1287.)

         Dr. Bacchus diagnosed Plaintiff with (1) fibromyalgia, (2) chronic lower back pain with lower extremity radiculopathy left greater than right, (3) non-insulin dependent diabetes mellitus, (4) depression/anxiety, (5) history of acute pancreatitis with NASH (i.e., nonalcoholic steatohepatitis) and early cirrhosis, (6) hypertension, (7) history of GERD, (8) hyperlipidemia, and (9) history of moderate obstructive sleep apnea. (Tr. 1286.) Dr. Bacchus opined that Plaintiff appeared to have some generalized joint and muscle pain which caused a limitation in regard to prolonged standing and walking, repetitive bending, squatting, overhead reaching, climbing, and walking on uneven ground. (Id.)

         At the request of the State Agency, on February 24, 2015, Plaintiff presented herself for a consultative psychological examination with Paula Neuman, Ed.D., Psy. D., HSPP. (Tr. 1291.) Dr. Neuman noted that Plaintiff's mood was very flat and that she was tearful throughout the examination. (Tr. 1294.) Dr. Neuman diagnosed (1) persistent depressive disorder with anxious distress, (2) ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.