Asberry-Whitt v. Barnhart, IP 02-0377-C-T/L (S.D. Ind. 7/5/2003), IP 02-0377-C-T/L.

• Decision Date: 05 July 2003
• Docket Number: IP 02-0377-C-T/L.
• Parties: DIANA ASBERRY-WHITT, Plaintiff, v. JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Southern District of Indiana

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DIANA ASBERRY-WHITT, Plaintiff, v. JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.

IP 02-0377-C-T/L.

United States District Court, S.D. Indiana, Indianapolis Division.

July 5, 2003.

ENTRY REVIEWING COMMISSIONER'S DECISION¹

JOHN TINDER, District Judge.

The Plaintiff, Diana Asberry-Whitt, brings this action pursuant to 42 U.S.C. § 405(g) seeking review of the final decision of the Commissioner of Social Security ("Commissioner") denying her application for Disability Insurance Benefits ("DIB"). The court rules as follows.

I. Background

The Plaintiff filed a first application for DIB on November 29, 1995, alleging a period of disability beginning April 30, 1995. That application was denied by an Administrative Law Judge ("ALJ") on February 26, 1998 (R. at 14), which decision was subsequently affirmed by Asberry-Whitt v. Apfel, Cause No. IP99-C-1516-H/G (S.D. Ind. Nov. 15, 2000). Then, in the matter currently before the court, the Plaintiff applied for DIB a second time on September 21, 1999, claiming inability to work beginning February 27, 1998. (R. at 440.) The Social Security Administration denied her application initially and on reconsideration. (Id. at 425-27.) ALJ Albert J. Velasquez held a hearing on July 5, 2000, and on July 26, 2000, issued a decision denying benefits. (Id. at 375-382.)² The Appeals Council declined review, making the ALJ's denial of benefits the Commissioner's final decision. (Id. at 366.)

A. Medical Examinations

The Plaintiff was 45 years old at the time of the ALJ's decision. (R. at 375.) She has a ninth grade education and prior work experience as a cashier and factory laborer. (Id.) She claims disability on the basis of chronic back problems, loss of bladder/bowel control, severe back and neck pain, and depression. She has had three lower back surgeries (microdiskectomies), the first in 1989 and two in 1995. (Id. at 494.) As a result of her last surgery in 1995, she suffers from bladder incontinence every half hour to forty-five minutes, and bowel incontinence around twice a week. (Id. at 515.) A neurological exam by Dr. Kristi George on November 18, 1998, reported "tenderness to palpitation diffusely in the lumbar paraspinous muscles. . . . Forward flexion is good. Lateral bending is markedly limited both to the right and the left." (Id. at 496.) She had numbness along her upper and lower left leg, and she ambulated slowly with an antalgic gait. (Id.) Dr. George also noted that the Plaintiff was "alert and oriented times three with no aphasia, apraxia, agnosia or right/left disorientation. Recent and remote memory, attention span and concentration are intact." (Id.)

A consultative examination performed by Dr. Bilal Ansari on November 2, 1999, reported the following with respect to her musculo-skeletal system: "[g]ait is lurching, patient bending more towards her left side. Unable to walk on her heels and toes, unable to do tandem walking, hopping or squatting secondary to pain in her lower back. She had decreased range of motion at the cervical spine, dorsolumbar spine, hips and knees. . . Patient walked without any assistance. No joint swelling or effusion." (R. at 517.) Her neurological systems were largely intact, although areas of hyperstesia in her right lower extremity were observed. (Id.) Dr. Ansari remarked that a recent MRI showed degenerative disc disease and cervical spondylosis.³ The Impression paragraph of the report stated that the Plaintiff's chronic back and neck pain were controlled by her current medication, though it was also noted that she felt tired and depressed as a result of her chronic pain. (Id.)

On November 16, 1999, the Plaintiff was examined in a neurosurgical consultation by Dr. Peter Hall. According to Dr. Hall, a motor exam revealed "no atrophy or fasciculation in the upper extremities. She had normal strength in all muscle groups of the uppers. She had normal tone and strength in the lowers." (R. at 520.) He observed that the Plaintiff had diffuse cervical tenderness with a diminished range of motion in all directions. (Id.) However, her cervical spondylosis was not of a significant degree. (Id. at 521). He described the Plaintiff as "a very pleasant, mildly obese woman who tends to be rather excited and at times histrionic" (id. at 520) and opined that "there is certainly some degree of emotional component to her symptoms." (Id. at 521.) Dr. Hall referred the Plaintiff to physical therapy. (Id.)

Also on November 16, 1999, Dr. A. Dobson performed a review of the Plaintiff's medical records at the request of the Social Security Administration, and completed a Physical Residual Functional Capacity Assessment ("PRFCA"). (R. at 541.) The PRFCA stated that the Plaintiff could lift up to ten pounds occasionally, stand or walk for up to six hours, and sit for a total of six hours; and could occasionally climb a ramp or stairs, balance, stoop, kneel, crouch, and crawl. (Id. at 543.) Dr. Dobson recommended that she avoid wet floors. (Id.)

B. Plaintiff's Testimony

The Plaintiff testified that she takes care of her pets (two dogs and three cats) (R. at 400) and regularly engages in light exercise (walking, low-impact water exercises) (id. at 401). The Plaintiff also claimed that she could only stand for two minutes without movement, pace five to ten minutes, and sit down for five to ten minutes; although she described herself as active roughly three to four hours a day, depending on the day. (Id. at 414-16.) She said she has to take muscle relaxants to sit without pain. (Id. at 402.) She experiences alternatively numbness and burning in her left leg, as well as severe back pain. (Id. at 407-408.) The Plaintiff suffers from urinary incontinence every 30 minutes or so, and fecal incontinence roughly twice a week. (Id. at 407.) She expressed feelings of hopelessness because of her pain and diminished physical capacity, but admits that "[g]ranted, I could probably work a job. I could give a job exactly the same activity level that I give myself with exercising and walking and riding a bike. I have approximately a one to four hour activity level." (Id. at 410.) As for her depression, she informed the ALJ that she periodically took antidepressants, but has not had any for "several years." As she summed up: "Of course, I'm depressed. I'm, I'm losing my marriage, I've lost my ability to support myself. . . . Take away the pain, and I won't be depressed." (Id. at 417.)

C. Vocational Expert's Opinion

Vocational expert ("VE") Michael Blankenship was asked by the ALJ at the July 5, 2000, hearing to estimate the number of jobs in the state economy available to a hypothetical person of the Plaintiff's age, education and work experience with a residual functional capacity ("RFC") to lift and carry ten pounds occasionally and five pounds frequently; and sit for six hours and stand for two hours in an eight-hour day, with the opportunity to alternate from a sitting to standing position at her option one or two minutes out of every half hour. The job must not require more than occasional bending, squatting, climbing of stairs or ramps; and involve no kneeling, crawling, climbing of ropes, ladders or scaffolds, walking on uneven surfaces, working at unprotected heights or around dangerous moving machinery, or operating a motor vehicle. (R. at 419.) The person would need to have access to a bathroom with opportunity to change protective undergarments every two hours, accommodated by scheduled breaks. (Id. at 421.) Under questioning by counsel for the Plaintiff, the VE confirmed that the additional requirement of taking unscheduled breaks in order to recline would preclude all work, as would the need to frequently withdraw from tasks due to pain. (Id. at 422-23.) The ALJ adopted in his findings the VE's opinion that a person with the above RFC could perform a significant number of jobs in the state economy, such as: cashier, 3,270; bookkeeping, accounting and auditing clerks, 1,736; information clerks, 318. (Id. at 382.)

III. Standard of Review

To be eligible for disability benefits, a claimant must establish that she suffers from an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A) (defining "disability" for purposes of Social Security Act). In determining whether a claimant is disabled, the ALJ engages in a five-step inquiry. Rucker v. Chater, 92 F.3d 492, 494 (7th Cir. 1996) (summarizing the agency regulations set forth in 20 C.F.R. § 404.1520). The ALJ decided this case at step five, where the burden shifts to the ALJ to show that a significant number jobs in the national economy could be performed by a person with the Plaintiff's age, experience, education and RFC. Zalewski v. Heckler, 760 F.2d 160, 162 n. 2 (7th Cir. 1985); see also 20 C.F.R. § 404.1520(f) ("If you cannot do any work you have done in the past because you have a severe impairment(s), we will consider your residual functional capacity and your age, education, and past work experience to see if you can do other work.") The denial of review by the Appeals Council made the ALJ decision the Commissioner's final determination on the Plaintiff's claim for disability.

In reviewing the Commissioner's final decision, the court must accept the ALJ's findings of fact as conclusive if they are supported by substantial evidence and there has been no error of law. Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). Substantial evidence means such relevant evidence that a reasonable mind could accept as adequate to support a conclusion. Id.; Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001). The court may not reconsider the facts, reweigh the evidence, or substitute its judgment for that of the ALJ. Kepple v. Massanari, 268 F.3d 513,...