United States District Court, N.D. Indiana
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
Supplemental Security Income (SSI), 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 SSI 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 has not engaged in substantial gainful
activity since February 13, 2015, the application date (20
CFR 416.971 et seq.)
2. The claimant has the following severe impairments:
degenerative disc disease of the lumbar and cervical spine,
and obesity (20 CFR 416.920(c)).
3. 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 416.920(d), 416.925 and 416.926).
4. 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 416.967(b) except she can never climb ladders, ropes or
scaffolds. She can occasionally climb ramps and stairs,
balance, stoop, kneel, crouch and crawl. She can have
occasional exposure to unprotected heights, dangerous heavy
moving machinery and wet slippery surfaces.
5. The claimant has no past relevant work (20 CFR 416.965).
6. The claimant was born on January 8, 1965 and was 50 years
old, which is defined as an individual closely approaching
advanced age, on the date the application was filed (20 CFR
7. The claimant has at least a high school education and is
able to communicate in English (20 CFR 416.964).
8. Transferability of job skills is not an issue because the
claimant does not have past relevant work (20 CFR 416.968).
9. 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 416.969 and
10. The claimant has not been under a disability, as defined
in the Social Security Act, since February 13, 2015, the date
the application was filed (20 CFR 416.920(g)).
(Tr. 12- 19).
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 June 27, 2019. On July 17, 2019,
the defendant filed a memorandum in support of the
Commissioner's decision to which Plaintiff replied on
August 12, 2019. Upon full review of the record in this
cause, this court is of the view that the ALJ's decision
should be remanded.
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
began having musculosketal problems following a motor vehicle
accident in March 2009. (Tr. 329.) At that time, Plaintiff
complained of both neck and low back pain. She began treating
with Dr. Peter Carney, a neurosurgeon who has since retired.
MRI imaging showed “degenerate disc disease changes
C5-C6 of a moderate nature. Moderate facet arthopathy.”
(Tr. 356.) In August 2009, Plaintiff underwent a sensory
nerve conduction test of the cervical spine which revealed
“very severe impairment of her C5 nerve root on the
left, very severe impairment of her S1 nerve root on the
right.” (Tr. 356. See also Tr. 387.)
underwent sensory conduction tests of the lumbar spine in May
2010 which revealed impaired nerve conduction of the left L1,
L2, L3 and right L4, S1. (Tr. 383.) MRI imaging of the lower
back in May 2010 showed minimal degenerative disc disease
with no canal stenosis or neural foraminal narrowing. (Tr.
378.) Dr. Carney tracked Plaintiff's limitations using
the Oswestry disability index. Her indexes ranged from 62 to
76. (Tr. 346, 352, 359). Dr. Carney treated her with several
transforaminal epidural steroid injections, (Tr. 358)
Vicodin, a narcotic, and Flexeril, a muscle relaxant.
(See, e.g., Tr. 361.) Dr. Carney endorsed a 10-pound
weight lifting limit for Plaintiff on March 25, 2010. (Tr.
transitioned care from Dr. Carney to Dr. Kevin Drew in
September 2010. On physical exam, Dr. Drew noted a limited
range of motion of both the lumbar spine and the cervical
spine. (Tr. 410.) On November 4, 2010 Dr. Drew performed a
provocative lumbar discography. The discography showed
“internal disc disruption at ¶ 3-4 with partial
concordant pain in the low back and medial right leg
radiating down to the right anterior knee.” (Tr. 405.)
Dr. Drew charted recommendations for treatment, including a
single level fusion, medication management, spinal cord
stimulation or aggressive physical treatments. (Tr. 406.)
Drew also ordered a new MRI of Plaintiff's cervical spine
and a CT of her lower back. The MRI of the cervical spine
showed “mild cervical spondylosis and small central
disc protrusion C5-6 which mildly narrows the spinal canal
and left neural foramen.” (Tr. 414.) The MRI also
showed a congenital fusion of C2-3 and mild facet arthrosis
at ¶ 3-4. (Tr. 414.) The lumbar spine CT impression
showed a “[r]ight posterolateral annular tear extending
for greater than 30 degrees spread around the circumference
of the annulus. This represents a grade 4 tear by the
Modified Dallas Discogram description. There is mild diffuse
disk bulging as well.” (Tr. 413.) Dr. Drew performed a
series of epidural steroid injections in Plaintiff's
cervical spine. (See Tr. 403, 404.) Plaintiff
informed Dr. Drew that she had experienced some relief, but
only for a short period of time. (Tr. 401, 403.)
2011, Dr. Drew noted that Plaintiff had subjective complaints
of “numbness and tingling in her left hand involving
the fourth and fifth digits with dropping a lot of things as
well as dropping things from the right hand.” (Tr.
401.) Dr. Drew performed an upper extremity EMG which
revealed a left ulnar neuropathy most localizable to the
medial epicondyle as well as chronic non-active right C6-7
cervical radiculopathy. (Tr. 400.) Dr. Drew referred
Plaintiff to South Bend Orthopedics for a left ulnar
transposition surgery. (Tr. 400.)
his charting, Dr. Drew noted Plaintiff had a limited range of
motion in the lumbar spine. (Tr. 456, 458, 460, 462, 464.)
Dr. Drew consistently prescribed Norco, a narcotic,
Gabapentin (for nerve pain), Zanaflex (a muscle relaxant),
and Cymbalta (for depression). (Id.) Shortly before
Plaintiff applied for disability benefits on February 19,
2015, Dr. Drew performed a second provocative lumbar
discography. This showed, “internal disc disruption of
the L3-L4 disc with partial concordant pain the low back and
medial right leg radiating down to the right anterior
knee.” (Tr. 580.)
Social Security's request, Plaintiff underwent two
consultative exams by Dr. Ralph Inabnit. In the March 31,
2015 exam, Dr. Inabnit noted normal range of motion in the
cervical and lumbar spine, (Tr. 482) as well as normal (5/5)
strength in the upper and lower extremities. (Tr. 483.) His
conclusion included, “She cannot stand or sit for
prolonged periods of time.” (Tr. 483.)
saw Dr. Inabnit again on August 4, 2015. She reported
worsening back pain. (Tr. 491.) On this exam Plaintiff showed
decreased range of motion of the lumbar spine in forward
flexion, extension, lateral flexion and rotation. (Tr. 494,
496.) In his conclusions, Dr. Inabnit said he would
“refer to Orthopedics or neurosurgeon regarding her
musculoskeletal complaints, which have been longstanding and
certainly needs further workup and evaluation.” (Tr.
follow up MRI on September 11, 2015, confirmed the presence
of annular tears: “At L4-5 level…There is a
possible annular tear of the disc posteriorly on the right.
…”At L3-4 there is a mild annular tear and mild
disc bulging posteriorly on the right which slightly
encroaches upon the right neural ...