Dogan v. Astrue, Civil No. 2:09cv207.

• Decision Date: 03 June 2010
• Docket Number: Civil No. 2:09cv207.
• Citation: 751 F.Supp.2d 1029
• Parties: Danny DOGAN, Plaintiff,v.Michael ASTRUE, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Northern District of Indiana

751 F.Supp.2d 1029

Danny DOGAN, Plaintiff,

v.Michael ASTRUE, Commissioner of Social Security, Defendant.

Civil No. 2:09cv207.

United States District Court, N.D. Indiana, Fort Wayne Division.

June 3, 2010.

Barry A. Schultz, Law Offices of Barry A. Schultz P.C., Evanston, IL, for Plaintiff.Wayne T. Ault, AUSA, U.S. Attorney's Office, Hammond, IN, for Defendant.

OPINION AND ORDER

WILLIAM C. LEE, 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) and Supplemental Security Income (SSI) as provided for in the Social Security Act. 42 U.S.C. § 416(I); 42 U.S.C. § 423; 42 U.S.C. §§ 1382, 1382c(a)(3). 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 disability insurance benefits must establish an “inability to engage in any substantial gainful activity by reason of any medically determinable 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. 1420, 1427, 28 L.Ed.2d 842 (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 Schmoll 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 on December 31, 2002.

2. The claimant has not engaged in substantial gainful activity since April 1, 1997, the alleged onset date (20 CFR 404.1520(b), 404.1571 et seq. , 416.920(b) and 416.971 et seq.).

3. Since the alleged onset date of disability, the claimant has had the following severe impairments: Morbid obesity and degenerative joint disease of the left knee (20 CFR 404.1520(c) and 416.920(c)).

4. Since the alleged onset date of disability, the claimant has not had an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d) and 416.920(d)).

5. After careful consideration of the entire record, I find that, prior to April 21, 2008, the date the claimant became disabled, the claimant had the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except that he is limited to sitting for 1 1/2 hours at a time and standing/or walking for 30 minutes at a time. However, he has been able to sit for a total of six hours in an eight-hour workday and stand and/or walk for a total of two hours in an eight-hour workday. He can occasionally lift up to twenty pounds from knee to chest level and can frequently lift ten pounds for the same range. He can carry such weights. He has been able to occasionally use the feet for operation of foot controls. He can occasionally climb stairs or ramps, but cannot climb ropes, scaffolds or ladders. He can infrequently (i.e. less than 1/3 of a typical workday) engage in activities that involve balancing, stooping, kneeling, crouching and crawling. He should avoid activities that involve unprotected heights, dangerous machinery and loud noises.

6. There have been no changes in the claimant's residual functional capacity since April 21, 2008.

7. Since the alleged onset date of disability, the claimant has been unable to perform past relevant work (20 CFR 404.1565 and 416.965).

8. The claimant was born on October 21, 1958 and was 38 years old, which is defined as a younger individual age 18–44, on the alleged disability onset date (20 CFR 404.1563 and 416.963). He will not technically attain the age of 50 until October 21, 2008. However, for reasons stated below, I will consider him to have been “closely approaching advanced age” (i.e., ages 50 through 54), since April 21, 2008.

9. Although the claimant graduated from high school, he attended special education classes and testified that he has some difficulty with reading and mathematics. Therefore, I find that the claimant has no more than a limited education and is able to communicate in English (20 CFR 404.1564 and 416.964).

10. Prior to April 21, 2008, 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. Beginning on April 21, 2008, the claimant has not been able to transfer any job skills to other occupations (See SSR 82–41 and 20 CFR Part 404, Subpart P, Appendix 2).

11. Prior to April 21, 2008, considering the claimant's age, education, work experience, and residual functional capacity, there were a significant number of jobs in the national economy that the claimant could have performed (20 CFR 404.1560(c), 404.1566, 416.960(c), and 416.966).

12. Beginning on April 21, 2008, considering the claimant's age, education, work experience, and residual functional capacity, there are not a significant number of jobs in the national economy that the claimant could perform (20 CFR 404.1560(c), 404.1566, 416.960(c), and 416.966).

13. The claimant was not disabled prior to April 21, 2008, but became disabled on that date and has continued to be disabled through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

14. The claimant was not under a disability within the meaning of the Social Security Act at any time through December 31, 2002, the date last insured (20 CFR 404.315(a) and 404.320(b)).

(Tr. 13–18).

Based upon these findings, the ALJ determined that Dogan 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.

Dogan filed his opening brief on January 1, 2010. On April 28, 2010, the defendant filed a memorandum in support of the Commissioner's decision, and on May 10, 2010, Dogan filed his reply. Upon full review of the record in this cause, this court is of the view that the ALJ's decision should be reversed and 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, 482 U.S. 137, 107 S.Ct. 2287, 2290–91, 96 L.Ed.2d 119 (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.

On July 20, 2006, Dogan applied for Disability Insurance (DI) and Supplemental Security Income (SSI) disability benefits alleging that he became unable to work on April 1, 1997. His date last insured was December 31, 2002. Dogan's claims were denied initially and on reconsideration. A request for hearing was filed on May 29, 2007. Administrative Law Judge Dennis Kramer held a hearing on August 4, 2008 and issued a partially favorable decision on September 3, 2008. The ALJ found Dogan disabled as of April 21, 2008, but not prior thereto. Dogan filed a Request for Review regarding the unfavorable portion of the decision and the Appeals Council denied this request on May 22, 2009, leaving the ALJ's decision as the final decision of the Commissioner. Dogan now seeks judicial review of defendant's denial of his disability claims.

Dogan testified as follows: He weighed approximately 425 pounds; he had problems with his knees for approximately 10 years and was told by a specialist that he needed a bilateral knee replacement. (AR. at 31, 36, 38.) He could not stand for long periods. (AR. at 27.) He had difficulty bending because of his bad knees and his weight. (AR. at 38.) He could not put on his socks and would have a difficult time getting out of the bathtub. (AR. at 42–43.) He could only walk 10 to 20 feet and used the electric carts in the grocery store. (AR. at 43.) He could only stand about 10 to 15 minutes without pain and would then need to sit down for 30 minutes before being able to stand up...