Ernestine L. v. Kijakazi

• Docket Number: CIVIL 1:21cv139
• Decision Date: 12 January 2022
• Parties: ERNESTINE L.[1], Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Northern District of Indiana

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ERNESTINE L.^[1], Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.

CIVIL No. 1:21cv139

United States District Court, N.D. Indiana

January 12, 2022

OPINION AND ORDER

William C. Lee, Judge United States District Court

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) under Title II of the Social Security Act, 42 U.S.C. § 423(d), and for Supplemental Security Income under Title XVI of the Act. 42 U.S.C. § 1383(c)(3). Section 405(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 benefits 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 a hearing, 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. (Exhibit C8D).

2. The claimant has not engaged in substantial gainful activity since February 18, 2016, 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 spine, mild scoliosis/degenerative disc disease of the thoracic spine, status post left shoulder fracture/mild osteoarthritis of the left shoulder, osteoarthritis of the right knee, and obesity. (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 light work as defined in 20 CFR 404.1567(b) and 416.967(b) except that the claimant can occasionally climb ramps and stairs, she can never climb ladders, ropes, or scaffolds, she can occasionally balance, stoop, kneel, crouch and crawl, and she cannot reach overhead with the bilateral upper extremities.

6. The claimant is capable of performing past relevant work as a housekeeper DOT 301.137-010, SVP 3, light as she performed it; and bus driver DOT 913.463-010, SVP 4, light as she performed it. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565 and 416.965). (Exhibit C5E-C7E, C14E).

7. The claimant has not been under a disability, as defined in the Social Security Act, from February 18, 2016, through the date of this decision (20 CFR 404.1520(f) and 416.920(f)).

(Tr. 14-19).

Based upon these findings, the ALJ determined that Plaintiff was not entitled to benefits, leading to the present appeal.

Plaintiff filed her opening brief on September 24, 2021. On December 8, 2021 the defendant filed a memorandum in support of the Commissioner's decision to which Plaintiff replied on December 22, 2021. Upon full review of the record in this cause, this court is of the view that the Commissioner'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). In the present case, Step 4 was the determinative inquiry.

Plaintiff was born on May 15, 1960 (Tr. 285, 294). She was fifty-five years old on her alleged onset date and considered a person of advanced age. 20 C.F.R. §§ 404.1563(e), 416.963(e). On May 15, 2020, Plaintiff turned sixty years old and became a person closely approaching retirement age. Id.

Plaintiff has an eleventh grade education and has worked intermittently as a bus driver, office cleaner, and residential housekeeper (Tr. 321-328). Her date last insured was June 30, 2017 (Tr. 314).

Plaintiff alleged disability beginning on February 18, 2016, due to arthritis, high blood pressure, high cholesterol, type II diabetes, bulging discs, degenerative disc disease, and bone-on-bone in right knee (Tr. 367).

As noted above, the ALJ concluded that Plaintiff had the following severe impairments: degenerative disc disease of the lumbar spine, mild scoliosis/degenerative disc disease of the thoracic spine, status post left shoulder fracture/mild osteoarthritis of the left shoulder, osteoarthritis of the right knee, and obesity (Tr. 15). She further concluded that Plaintiff had the residual functional capacity (RFC) to perform light work with no more than occasional balancing, stooping, kneeling, crouching, or crawling and no reaching overhead (Tr. 16).

Based on a hypothetical consistent with this RFC, the VE testified that Plaintiff could return to her position as a housekeeper, as she performed that job (Tr. 51-52). However, the ALJ ruled that Plaintiff could return to her past jobs as a housekeeper and as a bus driver (Tr. 18).

In support of remand, Plaintiff first argues that the ALJ erred in her Step Four finding that Plaintiff could perform her past relevant work. At step four of the sequential evaluation, the ALJ must determine whether the claimant, despite her work-related limitations, can perform her past relevant work. 20 C.F.R. §§ 404.1520(f), 416.920(f). In making this determination, the ALJ may obtain the services of a VE to offer relevant evidence concerning the physical and mental demands of the past relevant work, which may be helpful in supplementing or evaluating the accuracy of the Plaintiff's description of her past work. 20 C.F.R. §§ 404.1560(b)(2), 416.960(b)(2). A VE may offer expert opinion testimony in response to a hypothetical question about whether a person with the physical and mental limitations imposed by the Plaintiff's medical impairments can meet the demands of the Plaintiff's previous work, either as the claimant actually performed it or as generally performed in the national economy. 20 C.F.R. §§ 404.1560(b)(2), 416.960(b)(2). In order for work to be considered past relevant work, it must have been performed within the last fifteen years, it must have been performed long enough to learn the job, and it must be performed at the level of substantial gainful activity. 20 C.F.R. §§ 404.1565(a), 416.965(a).

In the present case, the ALJ found that Plaintiff was capable of performing her past...