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Michael M. v. Saul

United States District Court, N.D. Indiana

January 6, 2020

MICHAEL M.[1], Plaintiff,
ANDREW SAUL, Commissioner of Social Security, Defendant.


          William C. Lee, Judge United States District 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. 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 U.S.C. §405(g).

         The law 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 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, 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 404.1563).
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 3, 2016, through the date of this decision (20 CFR 404.1520(g)).

(Tr. 14 - 22).

         Based 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.

         Plaintiff 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.

         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 five was the determinative inquiry.

         In 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.)

         On 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.)

         On 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.)

         Plaintiff 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.)

         On 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.)

         On 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.)

         On 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.)

         Plaintiff 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.)

         Plaintiff 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.)

         On 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. (Tr. 397.)

         Plaintiff 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 ...

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