United States District Court, N.D. Indiana
OPINION AND ORDER
William C. Lee, Judge United States District 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. 42 U.S.C. § 423(a), §
1382c(a)(3). Section 405(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 disability insurance benefits
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 not 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
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, 2021. (Exhibit 5D).
2. The claimant has not engaged in substantial gainful
activity since March 3, 2016, the alleged onset date (20 CFR
404.1571 et seq.).
3. The claimant has the following severe impairments:
osteoarthritis of bilateral knees, lumbar degenerative disc
disease with a history of a lumbar laminectomy, 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 with never climbing ladders, ropes, or
scaffolds; the claimant can occasionally climb ramps and
stairs, balance, stoop, kneel, crouch, and crawl; the
claimant can frequently handle and finger; the claimant must
avoid unprotected heights; the claimant must have the option
to sit or stand after 30 minutes.
6. The claimant is unable to perform any past relevant work
(20 CFR 404.1565).
7. The claimant was born on July 14, 1965 and was 50 years
old, which is defined as an individual closely approaching
advanced age, on the alleged disability onset date (20 CFR
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 3, 2016, through the
date of this decision (20 CFR 404.1520(g)).
(Tr. 14 - 22).
upon these findings, the ALJ determined that Plaintiff was
not entitled to disability benefits. The ALJ's decision
became the final agency decision when the Appeals Council
denied review. This appeal followed.
filed his opening brief on October 11, 2019. On November 21,
2019, the defendant filed a memorandum in support of the
Commissioner's decision, to which Plaintiff replied on
December 5, 2019. Upon full review of the record in this
cause, this court is of the view that the ALJ's decision
must be remanded.
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
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 five was the
November 2014, Plaintiff underwent a left L4-L5, L5-S1
discectomy. (Tr. 305.) He returned for follow up on January
7, 2015. (Id.) He was having some residual back
discomfort largely controlled with two to three narcotics
(Norco) a day; however, he also had intermittent leg
numbness, although it was improved since surgery.
(Id.) At that time, Plaintiff was putting in 10-hour
days at work. (Id.) He was counseled on the
potential for recurrent disc herniations and told to increase
his medications if his leg pain progresses. (Id.)
August 5, 2015, Plaintiff was seen at the Emergency Room for
a possible peripheral ischemia; they detected a right lower
extremity embolus, along with other abnormalities, and
Plaintiff was admitted that day and underwent a right femoral
artery exploration and embolectomy. (See, e.g., Tr.
247-48, 261-63, 266.) Although he still required treatment
after nearly one week of inpatient treatment, his providers
adjusted his treatment so that he could be discharged in
order to spend time with family members who were going
overseas. (Id.) Plaintiff was discharged on August
12, 2015 with the following diagnoses: (1) acute right foot
ischemia, status-post catheter-directed thrombolysis, (2)
anticoagulation with Xarelto, (3) Heparin-induced
thrombocytopenia, and (4) acute kidney injury, resolved, (5)
transaminitis, resolved, (6) hyponatremia, resolved, (7)
hypertension, and (8) mild rhabdomyolysis, resolved. (Tr.
247.) Plaintiff also had a noted history of depression with
antidepressants. (Tr. 247, 261, 264.) Two weeks following his
discharge, Plaintiff followed up with his providers from the
ER at the hematology/oncology clinic, at which time he was
counseled on the risks of recurring venous thromboembolism
and treatment. (Tr. 294-96.)
October 30, 2015, Plaintiff sought treatment at Pain
Management for his back pain. (Tr. 297-302.) At this initial
visit, Plaintiff complained of lower back pain with
radiation, that had been slowly worsening over time, which
was now constant. (Tr. 297.) Although he had had
“excellent relief” from his radicular symptoms
post lumbar laminectomy, he still had persistent back pain
and bilateral knee pain, secondary to osteoarthritis.
(Id.) His Oswestry Disability Index score was 42,
reflecting severe disability. (Tr. 298.) At that time,
psychiatric review was positive for depression. (Tr. 299.)
Musculoskeletal, knee, and buttock testing was abnormal. (Tr.
300.) Plaintiff was diagnosed with: (1) chronic knee pain,
bilaterally, (2) osteoarthritis of both knees, (3) facet
arthropathy, lumbar, (4) lumbago syndrome, and (5) lumbar
degenerative disc disease. (Tr. 300-01.) Dr. Madupu
prescribed medication, including Norco, and other treatment
options and testing were recommended. (Tr. 301.)
underwent a lumber spine MRI on February 15, 2016. (Tr.
308-09.) This MRI demonstrated that the L4-L5 and L5-S1 discs
were desiccated with a moderate circumferential bulge and
posterocentral and left paracentral disc extrusion indenting
the thecal sac and compressing the left L5 and S1 nerve
roots. (Tr. 309.) There was moderate to severe narrowing of
the left lateral recess and neural foramen abutting the
exiting L4 and L5 nerve root. (Id.) There was mild
to moderate narrowing of the right lateral recess and
foramina, and mild leftsided canal narrowing at the L4-L5,
and moderate narrowing at the L5-S1. (Id.) Follow-up
was recommended. (Id.)
February 25, 2016, Plaintiff sought treatment with Dr. Julius
Silvidi at Goodman Campbell Brain & Spine for his low
back pain and his medications were reviewed. (Tr. 306-07.)
Plaintiff returned to Dr. Silvidi on April 6, 2016 (Tr.
312-14), complaining that while he had improvement in his
left leg pain, it was incomplete relief. (Tr. 316.) Plaintiff
returned to work, where he was involved in heavy physical
labor, and his back and bilateral leg pain continued.
(Id.) His pain was aggravated with bending and
standing. (Id.) On exam, he had a restricted range
of motion in his lumbar spine. (Id.) His gait was
slow and guarded. (Id.) Dr. Silvidi diagnosed
chronic back and leg pain and L4-L5 and L5-S1 spondylosis
status post discectomy. (Tr. 316.) Dr. Silvidi opined that
Plaintiff required sedentary work. (Id.)
March 3, 2016, Plaintiff returned to Pain Management for a
follow-up appointment. (Tr. 329-35.) Despite the medication
management treatment, his symptoms, pain, functioning, and
interaction with others were all unchanged. (Tr. 330.) His
Oswestry score was 68 (Tr. 330), indicating that his back
pain impinges on all aspects of his life. His February 2016
MRI was reviewed, as were his bilateral positive straight leg
raises. (Id.) Plaintiff also complained of
depression. (Tr. 331.) Musculoskeletal, knee, and buttock
testing were abnormal. (Tr. 332.) Plaintiff's previous
diagnoses were affirmed (compare Tr. 333, with Tr. 300-01),
and additional treatment was recommended, including
increasing his narcotics, undergoing injections, and a
rhizotomy (i.e., severing the nerve roots in the
spinal cord). (Tr. 333.)
March 29, 2016, Plaintiff sought treatment at American Health
Network for his many conditions. (Tr. 324-27.) Plaintiff
complained of decreased activity, fatigue, generalized
weakness, low back pain, and weight gain. (Tr. 326.) On exam,
Plaintiff's appearance was found to be “ill
appearing.” (Id.) He has tenderness and
moderately reduced range of motion in his lumbar spine. (Tr.
326.) His lumbar curvature was flat (i.e., abnormal)
and his thoracic curvature had kyphosis (i.e.,
abnormal). (Id.) It appears that examination
findings were positive for anxiety and depression, but it was
not “unusual.” (Id.) Plaintiff was
diagnosed with (1) chronic bilateral low back pain with
bilateral sciatica, (2) other chronic pain, (3) obstructive
sleep apnea, (4) obesity, and (5) moderate episode of
recurrent major depressive disorder, among others. (Tr. 326.)
A treatment plan was implemented with both medications and
referrals for treatment. (Id.)
returned to Pain Management on May 16, 2016, and his
condition was unchanged. (Tr. 337.) His Oswestry score was 50
(Tr. 337), indicating severe disability. After examination,
many of his previous diagnoses were affirmed. (Compare Tr.
340, with Tr. 300-01.) His treatment plan was updated, given
that Dr. Silvidi did not recommend surgery. (Tr. 340.)
Plaintiff returned in August, and his Oswestry score (Tr.
353) still indicated severe disability. After exam, his
previous diagnoses were affirmed. (Compare Tr. 356, with Tr.
300-01.) His treatment plan was updated with the goal of
decreasing his pain and improving his functional mobility and
activities. (Tr. 356.)
returned to American Health Network on August 15, 2016 for
management of his uncontrolled type 2 diabetes, a new
diagnosis. (Tr. 344-46.) Plaintiff returned to Pain
Management on August 29, 2016. (Tr. 503-08.) His Oswestry
score was 44 (Tr. 504), indicating severe disability. He
reported that standing, walking, squatting, lifting, and
daily activities exacerbated his pain. (Tr. 504.) After exam,
his diagnoses were affirmed, his medications were adjusted,
and he was counseled on his conditions. (Tr. 507-08.)
October 20, 2016, Plaintiff returned to American Health
Network. (Tr. 399- 403.) At this visit, he appeared
“chronically ill.” (Tr. 401.) He was anxious.
(Tr. 402.) Of note, his major depressive disorder, recurrent,
moderate, was chronic as was his bilateral low back pain with
bilateral sciatica. (Id.) Medications were
recommended. (Tr. 403.) Plaintiff returned on November 10,
2016 (Tr. 393-97), and similar examinations findings were
noted. (Compare Tr. 395-96, with Tr. 401-02.) He also had
abnormal findings on thoracic spine testing. (Tr. 396.) His
diagnoses were affirmed, and his medications were adjusted.
returned to Pain Management on January 9, 2017. (Tr. 475-80.)
His Oswestry score was 52 (Tr. 476), indicating severe
disability. He complained that the pain in his hands had been
getting worse lately and he was having a hard time gripping
due to pain. (Tr. 476.) After exam, his condition was
assessed as unchanged. (Tr. 479.) He was ...