United States District Court, N.D. Indiana, Fort Wayne Division
MELISSA M. PITMAN, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, sued as Nancy A. Berryhill, Acting Commissioner of SSA, Defendant.
OPINION AND ORDER
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.
I.
FACTUAL AND PROCEDURAL HISTORY
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).
II.
STANDARD OF REVIEW
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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