Daugherty v. Berryhill

• Decision Date: 13 May 2019
• Docket Number: CIVIL NO. 1:18cv256
• Parties: SARITA DAUGHERTY, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Northern District of Indiana

SARITA DAUGHERTY, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

CIVIL NO. 1:18cv256

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA FORT WAYNE DIVISION

May 13, 2019

OPINION AND ORDER

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. 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 DIB 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 last met the insured status requirements of the Social Security Act on December 31, 2015 (Ex. B-10D).

2. The claimant engaged in substantial gainful activity but not at all times after the alleged onset date (20 CFR 404.1520(b), 404.1571 et seq., 416.920(b) and 416.971 et seq.).

3. The claimant has the following severe impairments: fibromyalgia, morbid obesity, diabetes mellitus, diabetic neuropathy, obstructive sleep apnea, arthritis in the knees and feet/ankles, disorders of the back (including retrolisthesis of L5 to S1, a hemangioma at L3, and degenerative and discogenic changes at multiple levels of the lumbar spine with foraminal stenosis at L4-5 and L5-S1 and lower extremity radiculopathy), anxiety/panic disorder, 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) and 416.967(a) except that she needs a sit/stand option and she is not able to climb ladders, ropes, or scaffolds or crawl at all. She can occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and reach overhead with either of her upper extremities. She can frequently handle and finger and she must avoid exposure to extreme heat and cold, wetness, humidity, noise, vibrations, fumes, odors, dust, gases, poorly ventilated areas, and hazards, such as dangerous machinery and unprotected heights. She is also limited to simple, routine, repetitive tasks and instructions that do not involve more than occasional changes (and these changes must be gradually introduced). She cannot work at assembly-line pace. She can have frequent interactions with co-workers and only occasional interactions with the general public.

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

7. The claimant was born on January 31, 1969 and was 41 years old, which is defined as a younger individual age 18-44, on the alleged disability onset date. The claimant subsequently changed age category to a younger individual age 45-49 (20 CFR 404.1563 and 416.963).

8. The claimant has at least a high school education (GED) 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 disabilitybecause 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, 404.1569(a), and 416.969(a)).

11. The claimant has not been under a disability, as defined in the Social Security Act, from June 1, 2010, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

(Tr. 12- 21).

Based upon these findings, the ALJ determined that Plaintiff was not entitled to disability insurance 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 January 16, 2019. On February 26, 2019 the defendant filed a memorandum in support of the Commissioner's decision to which Plaintiff replied on March 13, 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 tothe 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.

The following facts are relevant to the issues presented in this case. In 2009, Plaintiff was seen at the emergency room ("ER") on 10 occasions for multiple complaints. (See Tr. 768-79 (on 01/10/09 for cough and sore throat), Tr. 781-93 (on 03/11/09 for vaginal pressure and pain), Tr. 797-804 (on 04/06/09 for ear and sinus pain), Tr. 808-18 (on 05/23/09 for headache), Tr. 821-30 (on 06/05/09 for back pain), Tr. 833-41 (on 07/14/09 for neck pain), Tr. 844-54 (on 08/02/09 for headaches, weakness, dizziness, and swelling in her lower extremities), Tr. 862-70 (on 08/10/09 for dizziness and headache), Tr. 605-12 (on 08/30/09 for bilateral lower extremity swelling and shortness of breath), and Tr. 613-20 (on 11/30/09 for low back pain).)

In addition to these ER visits, throughout 2009, Plaintiff also sought treatment from Dr. Cara Connors at Family Physicians, Sevierville. (Tr. 646-57.) During these sessions, Dr. Connors diagnosed Plaintiff with (1) vertigo, (2) headache, (3) edema, (4) arthralgia, (5) anxiety, (6) depression, (7) asthma, and (8) bursitis of the hip, among other conditions. (Id.) Abnormalities were noted on exam (Tr. 648, 650, 653) and Dr. Connors often prescribed medication and referred Plaintiff for additional treatment or testing (Tr. 646-57).

On December 2, 2009, Plaintiff underwent a whole-body bone scan. (Tr. 878.) This demonstrated possible degenerative changes in the lumbar spine and other findings whichrequired additional consideration. (Id.)

A lumbar spine MRI taken on December 30, 2009 revealed mild grade 1 retrolisthesis of the L5 relative to the S1 (degenerative in nature), with associated posterior disc bulge, and post element degenerative changes resulting in...