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Michelle O. v. Berryhill

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

June 13, 2019

Michelle O[1]., 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 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 404.1569(a)).
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 404.1520(g)).

(Tr. 576- 586).

         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 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 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.

         Plaintiff 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.)

         In 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.

         Dr. 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.

         In 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.)

         Plaintiff 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.)

         In 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.)

         Dr. 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.)

         Psychiatrist 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.)

         Dr. 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. Id.

         Dr. 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.

         The ALJ 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.)

         As 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.)

         In 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 ...


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