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Yvonne S. v. Berryhill

United States District Court, N.D. Indiana

August 30, 2019

YVONNE S.[1], Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         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 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 U.S.C. §405(g).

         The law 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).

         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 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 416.963).
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 416.969(a)).
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).

         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 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.

         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 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.)

         Plaintiff 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. 360.)

         Plaintiff 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.)

         Dr. 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.)

         By May 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.)

         Throughout 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.)

         At 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.)

         Plaintiff 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. 497.)

         A 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 ...

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