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Pitman v. Commissioner of Social Security

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

May 30, 2019

COMMISSIONER OF SOCIAL SECURITY, sued as Nancy A. Berryhill, Acting Commissioner of SSA, Defendant.


          Susan Collins United States Magistrate Judge

         Plaintiff Melissa M. Pitman appeals to the district court from a final decision of the Commissioner of Social Security (“Commissioner”) denying her application under the Social Security Act (the “Act”) for disability insurance benefits (“DIB”).[1] (DE 1). For the following reasons, the Commissioner's decision will be AFFIRMED.


         Pitman initially applied for DIB in January 2009, alleging disability as of July 24, 2007. (DE 10; DE 22; DE 23 Administrative Record (“AR”) 862). After an administrative hearing (AR 108-34), Pitman's application was denied by administrative law judge Jennifer Fisher in a decision dated December 13, 2010 (AR 139-47).

         In April 2012, Pitman filed a new application for DIB, alleging disability as of January 8, 2008. (AR 213-14). Pitman's claim was denied initially and upon reconsideration. (AR 159-66). A hearing was held on October 1, 2013, before administrative law judge William D. Pierson (the “ALJ”), at which Pitman, who was represented by counsel, and a vocational expert (“VE”) testified. (AR 54-106). On April 22, 2014, the ALJ rendered another unfavorable decision to Pitman, concluding that she was not disabled because despite the limitations caused by her impairments, she could perform a significant number of jobs in the economy. (AR 23-46). Pitman's request for review was denied by the Appeals Council (AR 1-6), at which point the ALJ's decision became the final decision of the Commissioner. See 20 C.F.R. § 404.981.

         Pitman filed a complaint with this Court in November 2015, seeking relief from the Commissioner's decision.[2] (AR 982-83). In March 2017, the Court entered an Opinion and Order reversing the Commissioner's decision and remanding the case for further proceedings. (AR 1001-25). In August 2017, the Appeals Council remanded the case to the ALJ (AR 1027-30), and the ALJ conducted a new hearing (AR 908-50). On June 14, 2018, the ALJ issued another unfavorable decision to Pitman. (AR 862-92). Pitman opted not to seek review by the Appeals Council, and the ALJ's decision dated June 14, 2018, became the Commissioner's final decision. (AR 859-61).

         On August 17, 2018, Pitman filed suit here, appealing the Commissioner's final decision. (DE 1). In the appeal, Pitman alleges that the ALJ: (1) improperly discounted the opinion of Dr. Julian Freeman, who reviewed Pitman's record more than five years after her date last insured and issued a report dated January 22, 2018; (2) improperly evaluated whether Pitman met Listing 14.09B, inflammatory arthritis, as of her date last insured; (3) improperly found that Pitman did not equal Listing 3.02A, chronic respiratory disorders, as of her date last insured; (4) failed to adequately account for Pitman's deficits in concentration, persistence, or pace in the residual functional capacity (“RFC”) assessment and the hypothetical posed to the VE; and (5) improperly discounted Pitman's symptom testimony. (DE 18 at 9-25).

         At the time of the ALJ's decision, Pitman was 52 years old (AR 156, 892); had a high school education (AR 247); and had work experience as a nursery school attendant, a housekeeping cleaner, a woodworking machine offbearer, a general inspector, and a store laborer (AR 353). Pitman alleges disability due to: cervical and lumbar degenerative disc disease, a history of asthma and bronchitis, chronic obstructive pulmonary disease (“COPD”), a history of right (dominant hand) carpal tunnel release surgery, left carpal tunnel syndrome, left shoulder pain, fibromyalgia, insomnia, sleep apnea, obesity, inflammatory arthritis, major depressive disorder, and post-traumatic stress disorder (“PTSD”). (DE 18 at 3).


         Section 405(g) of the Act grants this Court “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 cause for a rehearing.” 42 U.S.C. § 405(g). The Court's task is limited to determining whether the ALJ's factual findings are supported by substantial evidence, which means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005) (citation omitted). The decision will be reversed only if it is not supported by substantial evidence or if the ALJ applied an erroneous legal standard. Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000) (citation omitted).

         To determine if substantial evidence exists, the Court reviews the entire administrative record but does not reweigh the evidence, resolve conflicts, decide questions of credibility, or substitute its judgment for the Commissioner's. Id. Rather, if the findings of the Commissioner are supported by substantial evidence, they are conclusive. Jens v. Barnhart, 347 F.3d 209, 212 (7th Cir. 2003) (citation omitted). “In other words, so long as, in light of all the evidence, reasonable minds could differ concerning whether [the claimant] is disabled, we must affirm the ALJ's decision denying benefits.” Books v. Chater, 91 F.3d 972, 978 (7th Cir. 1996).

         III. ANALYSIS

         A. The Law

         Under the Act, a claimant is entitled to DIB if she establishes 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 not less than 12 months.” 42 U.S.C. §§ 416(i)(1), 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).

         The Commissioner evaluates disability claims pursuant to a five-step evaluation process, requiring consideration of the following issues, in sequence: (1) whether the claimant is currently unemployed; (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment or combination of impairments meets or equals one of the impairments listed by the Commissioner, see 20 C.F.R. Pt. 404, Subpt. P, App'x 1; (4) whether the claimant is unable to perform her past work; and (5) whether the claimant is incapable of performing work in the national economy.[3] See Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001) (citations omitted); 20 C.F.R. § 404.1520. An affirmative answer leads either to the next step or, on steps three and five, to a finding that the claimant is disabled. Zurawski v. Halter, 245 F.3d 881, 886 (7th Cir. 2001) (citation omitted). A negative answer at any point other than step three stops the inquiry and leads to a finding that the claimant is not disabled. Id. (citation omitted). The burden of proof lies with the claimant at every step except the fifth, where it shifts to the Commissioner. Clifford, 227 F.3d at 868 (citation omitted).

         B. The Commissioner's Final Decision

         On June 14, 2018, the ALJ issued a decision that ultimately became the Commissioner's final decision. (AR 862-92). At step one, the ALJ concluded that Pitman had not engaged in substantial gainful activity after her alleged onset date of January 8, 2008, through her date last insured of June 30, 2012. (AR 865). At step two, the ALJ found that Pitman had the following severe impairments through her date last insured: mild degenerative disc disease and spondylosis of the cervical spine with cervical radiculopathy, mild thoracic and lumbar degenerative disc disease, a history of asthma and bronchitis, COPD, a history of right (dominant hand) carpal tunnel release surgery, left carpal tunnel syndrome, left shoulder pain, fibromyalgia, insomnia, obstructive sleep apnea, obesity, inflammatory arthritis, major depressive disorder, PTSD, and attention deficit disorder. (AR 866).

         At step three, the ALJ concluded that Pitman did not have an impairment or combination of impairments severe enough to meet or equal a listing. (AR 867-83). Before proceeding to step four, the ALJ determined that Pitman's symptom testimony was not entirely consistent with the medical evidence and other evidence of record with respect to her limitations as of her date last insured. (AR 888-89). The ALJ assigned Pitman the following RFC:

[T]hrough the date last insured, the claimant has the [RFC] to perform sedentary work as defined in 20 CFR 404.1567(a). She could lift, carry, push and pull ten pounds frequently and occasionally. She could not use her upper extremities (hands/arms) to reach and perform fine and gross manipulati[on] on a constant basis, but could use them for frequent fingering; feeling; gripping; fine manipulation of small objects such as a pen, computer mouse, or paperclip; gross manipulation with handling, grasping, turning, and gripping of larger objects; and reaching in all directions. The claimant could sit for at least six hours in an eight-hour workday and stand and/or walk for two hours in an eight-hour workday. As to postural changes, the claimant could occasionally crouch, kneel, balance, use ramps and stairs, and bend and stoop, in addition to what is required to sit, but could not crawl or climb ladders, ropes, or scaffolds. The claimant could tolerate less than occasional exposure to excessive/concentrated airborne particulate, dusts, fumes and gases and excessive heat, humidity and cold such as when working outside or within a sawmill, boiler room, chemical plant, green house, refrigerator or sewage plant. The claimant had the mental [RFC to] perform tasks that involved simple instructions, defined as tasks and instructions that can be learned through short demonstration, or when beyond short demonstration, up to and including one month, or in other words, special vocational preparation (SVP) levels 1 and 2. The claimant could make the judgments and apply the common sense understanding required to carry out such instructions and tasks with both tasks and instructions falling within the realm of reasoning levels 1, 2 and 3. The claimant could remember the associated work like procedures. The claimant could maintain the focus, persistence, concentration, pace and attention required to engage in such tasks for two hour increments, and for eight hour work days, and with the confines of normal work breaks and lunch periods.

(AR 883-84). Based on the assigned RFC and the VE's testimony, the ALJ found at step four that Pitman was unable to perform her past relevant work through her date last insured. (AR 890). However, at step five the ALJ found that through her date last insured Pitman could perform a significant number of unskilled, sedentary jobs in the economy, including addresser, table worker, document preparer, compact assembler, and call out operator. (AR 891). Therefore, Pitman's application for DIB was denied. (AR 891-92).

         C. Dr. Freeman's Opinion

         Several of Pitman's arguments raised on appeal rely on the opinion of Dr. Freeman, a non-examining physician who reviewed Pitman's record and issued a retrospective 15-page report on January 22, 2018-more than five years after Pitman's date last insured. (AR 2629-43). The Court will begin with Pitman's argument that the ALJ improperly discounted the limitations assigned by Dr. Freeman.

         In his report, Dr. Freeman opined that as of June 5, 2010, through his report date, Pitman: (1) could lift, carry, push, or pull five pounds with extreme rarity for only a few seconds at a time, a few times a day, with at least an hour of rest thereafter; (2) could lift, carry, push, or pull less than frequently; (3) could walk or stand one to two minutes at a time with at least 30 minutes rest thereafter, and walk or stand no more than 20 minutes in total per day; (4) could rarely (less than five percent of the time) perform position changes; (5) had a “slow and delayed (long lag time) initiation of any movements”; (6) could rarely use hands and fingers for all activities, “at approximately 1/4 normal rate”; (7) could climb only a few steps at a reduced rate, on a very rare basis (a few times a day); (8) must avoid any exposure to respiratory irritants, cold, or very dry air; and (9) had a “general rate of physical activities approximately 1/3-1/4 normal for all activities.” (AR 2638).

         The ALJ considered these limitations penned by Dr. Freeman, but assigned them little weight, explaining as follows:

Dr. Freeman opined the claimant had very extreme limitations of function allegedly existing since June 5, 2010. Dr. Freeman reported the claimant could change position rarely or less then 5% of the time, and could only lift, carry, push and pull 5 pounds only with “extreme rarity” and only for a “few seconds at a time” and only a “few times a day” requiring a rest break for at least one hour thereafter. First, outside of noting diagnoses, he offers little explanation. Second, these are extreme work limitations and are unsupported by the treatment notes as of 2010 or as of 2012. The objective medical ...

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