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 meets the insured status requirements of the
Social Security Act through September 30, 2018.
2. The claimant has not engaged in substantial gainful
activity since March 4, 2013, the alleged onset date (20 CFR
404.1571 et seq.).
3. The claimant has the following severe impairments: bipolar
disorder, anxiety, degenerative disc disease of the cervical
spine, and obesity (20 CFR 404.1520(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 lifting/carrying 20 pounds
occasionally and 10 pounds frequently. The Claimant could
stand/walk approximately 6 hours per 8hour workday and sit
approximately 6 hours. Claimant could never climb ladders,
ropes, or scaffolds. She could perform postural activities
(i.e. climbing ramps/stairs, balancing, stooping, crouching,
kneeling, crawling) on a frequent basis. Claimant is to avoid
concentrated exposure to dangerous moving machinery and all
exposure to unprotected heights. Claimant is limited to
simple and routine work. Claimant is limited to work
performed at an average pace with no fast paced production
requirements involving only end of day production
requirements, with no hourly or other periodic production
quotas. Claimant can have only occasional contact with the
public in the work setting and only occasional contact with
co-workers and supervisors.
6. The claimant is unable to perform any past relevant work
(20 CFR 404.1565).
7. The claimant was born on November 13, 1964 and was 48
years old, which is defined as a younger individual age
18-49, on the alleged onset date (20 CFR 404.1563). Upon
reaching 50 years of age claimant was classified as an
individual closely approaching advanced age.
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
11. The claimant has not been under a disability, as defined
in the Social Security Act, from March 4, 2013, the alleged
onset date, through the date of this decision (20 CFR
(Tr. 576- 586).
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 February 18, 2018. On March 22,
2019 the defendant filed a memorandum in support of the
Commissioner's decision, to which Plaintiff replied on
April 16, 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
was born on November 13, 1964 and was 53 years old on the
date that the ALJ issued his decision. Treating psychiatrist
Dr. Ara Yeretsian, M.D. diagnosed Plaintiff with bipolar
disorder in 2006 after Plaintiff demonstrated paranoid
ideation, flight of ideas, and over reactivity. (AR 521-22.)
Dr. Yeretsian continued to treat Plaintiff through the
alleged disability onset date, at which time Plaintiff
averred that she was unable to perform household chores,
suffered anhedonia, and did not desire to socialize with
others. (AR 545.) Dr. Yeretsian noted that Plaintiff
frequently changed the subject of the discussion to
anxiety-related topics, demonstrated a distressed and tearful
affect, and manifested excited and apprehensive speech. (AR
546.) Dr. Yeretsian noted that Plaintiff suffered cyclical
mood change that included periods of mania and periods of
depression. Id. Dr. Yeretsian prescribed the
antimanic medication Lithium. Id. At a subsequent
medical appointment in March 2013, Dr. Yeretsian prescribed
the bipolar disorder medication Lamictal and the
antipsychotic Geodon. (AR 546.) In late March 2013, Dr.
Yeretsian observed depressed mood and flat affect. (AR 547.)
In April 2013, Plaintiff affirmed that she continued to lack
motivation and that she spent a considerable portion of the
day lying down. (AR 548.) She described poor concentration
and attention that was interrupted by
“…intrusive feelings of anxiety.” (AR
549.) Dr. Yeretsian again noted depressed mood and flat
affect. Id. At a subsequent April treatment session,
Plaintiff manifested tearful affect. (AR 550.) Dr. Yeretsian
opined that Plaintiff continued to suffer depression.
Id. In late April 2013, Plaintiff admitted to
paranoid ideation, decreased motivation, and anxiety.
Id. Dr. Yeretsian observed depressed mood and flat
and tearful affect. (AR 551.) He opined that she was very
depressed and anxious. Id. In June 2013, Plaintiff
related to Dr. Yeretsian that she was shaky, upset, and edgy.
(AR 553.) Dr. Yeretsian noted “clear-cut switches in
disposition” and that Plaintiff was “into frank
withdrawal and depression.” (AR 554.) He prescribed the
bipolar disorder medication Depakote. Id. She was
tearful at a subsequent June 2013 treatment session and Dr.
Yeretsian prescribed the antidepressant Wellbutrin. (AR
554-55.) Plaintiff admitted to hallucinations and poor sleep
in July 2013. (AR 555.) Dr. Yeretsian noted that she changed
subjects frequently, that her focus on the conversation was
short, and that her demeanor ranged from calm to agitation.
Id. At a subsequent July 2013 treatment session,
Plaintiff acknowledged that she recently had experienced a
single good day but that the rest of her days had all been
bad due to her nerves. (AR 556.) Dr. Yeretsian noted that she
manifested ideas of reference, that she changed subjects
frequently because she was distracted by anxiety, that her
focus on conversation was short, and that she demonstrated
mood changes. Id. He opined that Plaintiff was not
doing well. (AR 557.) Plaintiff was noted to be irritable in
Dr. Yeretsian's waiting room in August 2013. Id.
In December 2013, Dr. Yeretsian observed that Plaintiff was
frustrated, tearful, and anxious. (AR 561.)
January 2014, Dr. Yeretsian noted that Plaintiff sat forward
in her chair, was tearful, and sighed frequently. (AR 562.)
She admitted to paranoid ideation in March 2014. (AR 563.)
Dr. Yeretsian prescribed the antipsychotic Latuda in place of
Geodon. (AR 564.) In May 2014, Dr. Yeretsian noted labile
mood and that Plaintiff burst into tears at times.
Id. Plaintiff was again tearful during a June 2014
treatment session and Dr. Yeretsian noted that she was very
scared of medications, highly somatic, depressed, and that
she felt cognitively overwhelmed in conversation. (AR 565.)
He prescribed the antianxiety medication Xanax. Id.
In July 2014, she was tearful and manifested flat mood. (AR
566.) Dr. Yeretsian prescribed the antipsychotic Abilify.
Id. At that time, she began counseling with Joan
Wolford, L.C.S.W. (AR 461.) She affirmed that she suffered
from a lack of motivation to perform any task, as well as
severe anxiety. Id.
Yeretsian opined that Plaintiff operated in high anxiety and
that she continuously worried and doubted. (AR 567.) He noted
that she was very depressed in August 2014 and prescribed the
antidepressant Pristiq. (AR 567.) In late August 2014, he
noted that Plaintiff manifested labile mood and tearful
affect and that she appeared to be agitated and experienced
difficulty maintaining composure. (AR 567-68.) In September
2014, she admitted paranoid ideation and fear of relapsing
into psychosis to Ms. Wofford. (AR 459.) She reopened an
account on Facebook which increased her paranoid thoughts.
(AR 450.) She easily became mentally and physically
exhausted. Id. Dr. Yeretsian observed labile mood
that month. (AR 568.) Plaintiff informed Ms. Wofford that she
became easily overwhelmed and suffered persistent lack of
energy. (AR 449.) In late September 2014, Dr. Yeretsian
opined that, since April 2014, he had made “mild
inroads” with Plaintiff but that Plaintiff continued to
suffer emotional lability, periodic hopeless depression,
agitation, and delusional moods. (AR 569.) Despite the use of
numerous psychotropic medications, Plaintiff's
depression, impaired attention span, and tendency to focus on
reducing her fears interfered with her ability to perform
work tasks. Id.
October 2014, Ms. Wofford noted that Plaintiff became tearful
when she described her biggest fear as suffering another
nervous breakdown. (AR 1401.) Plaintiff described impaired
concentration and a desire to socially isolate. Id.
She described frequent fatigue, a lack of motivation, and a
need to lie down because she tired easily. (AR 1408.) She
infrequently did laundry and showered only every
three-to-four days. Id. In February and March 2015,
she experienced paranoid ideation. (AR 1413, 1415, 1417.)
began treating with psychiatrist Dr. Darnika Graham, M.D. in
April 2015. (AR 1397-99.) Plaintiff described symptomatology
that included fatigue, anhedonia, lack of motivation,
hopelessness, and impaired focus. (AR 1397-99.) Dr. Graham
observed depressed mood and diagnosed bipolar disorder. (AR
1399.) Plaintiff informed Ms. Wofford that she believed her
mental health had deteriorated over time in April 2015. (AR
1424.) She continued to suffer poor attention and
concentration. (AR 1428.) Dr. Graham prescribed the
antidepressant Brintellix in July 2015 after Plaintiff
continued to suffer poor motivation, interest, and focus. (AR
1506.) Dr. Graham noted depressed mood in August 2015. (AR
1509, 1511.) Plaintiff reported no improvement in mental
health symptomatology in October 2015. (AR 1516, 1522.)
January 2016, she suffered a panic attack that prompted her
to seek treatment at the emergency department. (AR 1531.) She
resumed psychotherapy with Ms. Wofford in February 2016 at
which time she endorsed poor concentration and low energy.
(AR 1436.) She felt overwhelmed when she attempted to perform
household chores. (AR 1439.) She suffered illogical ideation
and racing thoughts throughout spring and summer 2016. (AR
1446, 1452, 1540.)
Graham observed tearful affect and depressed mood in
September 2016. (AR 1061.) Plaintiff suffered a manic episode
in October 2016. (AR 1466.) She was tearful when she met with
Ms. Wofford in November 2016. (AR 1471.) Dr. Graham's
January 2017 mental status examination reflected depressed
mood, tearful and dysphoric affect, and poor memory. (AR
1073.) Plaintiff suffered forgetfulness and experienced
difficulty finding words in March 2017. (AR 1479.) She noted
impairment in short-term memory in June 2017. (AR 1483.) Dr.
Graham noted that Plaintiff's mood was terrible in August
2017. (AR 1583.)
Dr. Rana Embar, M.D., began treating Plaintiff in October
2017, at which time she observed that Plaintiff demonstrated
anxious and tearful affect and depressed mood. (AR 1585.)
That month, Ms. Wofford noted anxious and depressed mood and
that Plaintiff appeared to be disheveled and unkempt. (AR
1353.) In November 2017, Plaintiff was unable to perform
activities of daily living due to absent motivation. (AR
1490.) Dr. Embar again affirmed that Plaintiff presented with
tearful and anxious affect in December 2017. (AR 1587.)
Plaintiff's anxiety and the frequency with which she
suffered panic attacks increased in January 2018. (AR 1492.)
She no longer followed through with medical appointments.
Id. Dr. Embar observed anxious affect and depressed
mood in February 2018. (AR 1590-91.)
Yeretsian submitted an assessment of Plaintiff's mental
functional capacity (AR 382-87) in which he opined that
Plaintiff demonstrated frequent deficits in the ability to
maintain regular attendance and to be punctual within usual
strict tolerances (AR 384), to maintain socially appropriate
behavior, to adhere to basic standards of neatness and
cleanliness, to travel in unfamiliar places, and to use
public transportation. (AR 385.) Plaintiff found speed,
precision, complexity, deadlines, work within a schedule,
decision making, exercising independent judgment, completing
tasks, working with others, interacting with the public and
supervisors, accepting criticism, working under supervision,
remaining at work for a full day, and fear of failure to be
stressful. (AR 386.) Plaintiff's impairments would cause
her to be absent from work more than four days each month.
Graham submitted an assessment of Plaintiff's mental
functional capacity (AR 980-85) in which she opined that
Plaintiff was unable to meet competitive standards with
regard to completing a normal workday or workweek without
interruptions from psychologically- based symptoms, to
responding appropriately to changes in a work routine, to
dealing with normal work stress (AR 982), and to dealing with
the stress of skilled and semiskilled work. (AR 983.)
Plaintiff found speed, precision, complexity, deadlines, work
within a schedule, decision making, exercising independent
judgment, completing tasks, working with others, interacting
with the public and supervisors, accepting criticism, working
under supervision, remaining at work for a full day, and
getting to work regularly to be stressful. (AR 984.) Her
impairments would cause her to be absent from work more than
four days each month. Id.
questioned the VE about the availability of jobs to a
hypothetical individual who retained Plaintiff's residual
functional capacity (RFC). (AR 634-35.) The VE testified
that, while the hypothetical individual could not perform
Plaintiff's past relevant work (AR 635), she retained the
RFC to perform the jobs of office helper, mail clerk, and
hand packager. (AR 636.) If the individual was absent from
work more than ten-to-twelve days each year or was off-task
for more than 15 percent of the workday, she would be
precluded from competitive employment. (AR 637.)
noted above, the ALJ made the following findings: Plaintiff
met the insured status requirement through September 30, 2018
(AR 576); to be eligible for Disability Insurance Benefits,
she needed to establish that she became disabled before this
date. She suffered from medically determinable severe
impairments of bipolar disorder, anxiety, degenerative disc
disease of the cervical spine, and obesity. Id. Her
mental impairments produced moderate restrictions in
understanding, remembering, and applying information; social
functioning, concentration, persistence, or pace; and
adapting or managing oneself. (AR 578-79.) She retained the
RFC to perform work at the light exertional level but could
never climb ladders, ropes or scaffolds; could occasionally
climb ramps and stairs, balance, stoop, kneel, crouch, and
crawl; needed to avoid all exposure to unprotected heights;
needed to avoid concentrated exposure to dangerous machinery;
could perform simple and routine work; could perform work at
an average pace with no fast-paced production requirements or
hourly or other periodic production quotas; and could
tolerate occasional contact with the public, coworkers, and
supervisors. (AR 580.) The ALJ held that while
Plaintiff's impairments could have been expected to
produce the symptoms that she alleged, any statements that
addressed the intensity, persistence, or limiting effects of
those symptoms were not entirely consistent with evidence.
(AR 581.) The psychological expert's medical opinion
merited significant weight (AR 584), Dr. Graham's medical
opinion merited some weight, Dr. Embar did not provide
treatment notes that supported her opinion that Plaintiff
would be absent from work four days each month (AR 582), and
Dr. Yeretsian's medical opinion was not supported by his
treatment notes. (AR 583.) While Plaintiff was unable to
perform any past relevant work (AR 584), she retained the RFC
to perform the jobs of office helper, mail clerk, and hand
packager. (AR 586.)
support of remand, Plaintiff first argues that the ALJ erred
in weighing medical opinion evidence. More specifically,
Plaintiff claims that the ALJ erred in rejecting medical
opinion evidence provided by treating psychiatrists Drs.
Yeretsian and Graham. Plaintiff argues that the ALJ did not
explicitly state the weight that Dr. Yeretsian's medical
opinion merited and found that Dr. Graham's opinion
merited only some weight. (AR 582-83.) The ALJ found that Dr.
Yeretsian's medical opinions were not supported by his
treatment notes and that his clinical observations included
comments about Plaintiff's need to look for work and her
lack of memory impairment. (AR 583.) In finding that Dr.
Graham's medical opinion merited only some weight, the
ALJ found that Plaintiff's ...