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
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).
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 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
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).
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.
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.
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
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).
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).
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).
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 ...