Lynn A. v. Saul

          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) and 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 meets the insured status requirements of the Social Security Act through March 31, 2017.

2. The claimant has not engaged in substantial gainful activity since June 27, 2015, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).

3. The claimant has the following severe impairments: degenerative disc disease of the lumbar and cervical spine; residual effects of acute pneumonia and respiratory distress; right knee degenerative joint disease; obesity; migraine headaches; bilateral carpel tunnel syndrome; anxiety and depression (20 CFR 404.1520(c) and 416.920(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, 404.1526, 416.920(d), 416.925 and 416.926).

5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) except the claimant can never climb ladders, ropes or scaffolds and no more than occasionally climb ramps, stairs, balance and stoop, kneel, crouch, crawl or reach overhead. The claimant requires the use of a cane for ambulation. She can frequently but not constantly use the upper extremities bilaterally for reaching, handling and fingering. She can never be exposed to unprotected heights and must avoid concentrated exposure to wet, slippery and/or uneven surfaces and to hazards such as dangerous moving, mechanical parts. She can have no more than occasional exposure to no more than moderate levels of environmental irritants such as fumes, odors, dusts or gases. The claimant is limited to unskilled work but is able to understand, remember and carry out simple instructions, can make judgments on simple work-related decisions, and can interact appropriately with the general public, supervisors and co-workers in a routine work setting, with simple tasks.

6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).

7. The claimant was born on June 17, 1969 and was 46 years old, which is defined as a younger individual age 45-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963).

8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964).

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 82041 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, 404.1569(a), 416.969, and 416.969(a)).

11. The claimant has not been under a disability, as defined in the Social Security Act, from June 27, 2105, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

(Tr. 12- 26).

         Based upon these findings, the ALJ determined that Plaintiff was not entitled to 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 October 15, 2019. On November 25, 2019, the defendant filed a memorandum in support of the Commissioner's decision to which Plaintiff replied on December 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.

         On March 2, 2013, the Social Security Administration's consultative examining psychologist, Dr. Durak, conducted a psychological evaluation of Plaintiff. Dr. Durak noted Plaintiff's activities "lead to increased pain and increased fatigue, and she has to do things in a slow and methodical way so as not to aggravate her pain." (Tr. p. 363). Dr. Durak further noted, "... she has to constantly change positions in order to minimize her pain." (Tr. p. 365). Dr. Durak made an Axis IV diagnosis of "severe: chronic pain." (Tr. p. 365).

         On July 24, 2015, Ms. Lori Krol, Plaintiff's treating primary care nurse practitioner, noted "joint stiffness," "joint pain," and "back problems." (Tr. p. 509). On July 29, 2015, Plaintiff had a CT scan of her lumbar spine. Plaintiff had a bulging disc at 1 4-15, and spondylolysis at ¶ 5-Sl. (Tr. p. 450).

         In an office visit on October 19, 2015, Dr. Ungar-Sargon, Plaintiff's treating board certified neurologist, examined Plaintiff and observed spasms and tenderness in the cervical spine, the thoracic spine, and the lumbar spine. In addition, the clinical tests, the Ober's test, Thomas test, Pace's sign, FABER test, straight leg raising test, and Trendelenburg's test, were all positive. Plaintiff also had left hip tenderness. Dr. Ungar-Sargon diagnosed Plaintiff with bilateral hip pain, cervical disc displacement, and lumbar disc displacement. Dr. Ungar-Sargon's treatment plan for Plaintiff included medication, orthopedic bracing, and spinal injections. (Tr. p. 395-396). On November 3, 2015, Dr. Ungar-Sargon, indicated Plaintiff's functional limitations: frequently lift and or carry less than 10 pounds; stand or walk less than 2 hours of an 8 hour day; sit less than 6 hours of an 8 hour day; limited in the upper and lower extremities; never climb, balance, stoop, kneel, crouch, or crawl; Limited reaching, handling, fingering, and feeling; and avoid all exposure to cold, heat, wetness, humidity, noise, vibration, fumes, and hazards. (Tr. p. 386-389).

         On January 8, 2016, Dr. Jao, the Social Security Administration's consultative examining physician, noted Plaintiff "is unable to bend or squat and has a limited range of motion in her arms." (Tr. p. 549). Dr. Jao's physical examination revealed tenderness and decreased range of motion in the lumbar and cervical spine, with a positive straight leg raising test bilaterally. (Tr. p. 551). Dr. Jao further observed Plaintiff has an antalgic gait, is unable to ...