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, 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
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),
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).
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 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
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
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).)
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.
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
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.)
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).
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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) ...