Evans v. Berryhill, CIVIL NO. 1:17cv54

Decision Date10 October 2017
Docket NumberCIVIL NO. 1:17cv54
PartiesKATRINA M. EVANS, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
CourtU.S. District Court — Northern District of Indiana

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. 42 U.S.C. §416(I). 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 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 meets the insured status requirements of the Social Security Actthrough December 31, 2018 (Ex 5D).
2. The claimant has not engaged in disqualifying work activity since April 4, 2013, the alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: disorders of the lumbar spine (degenerative changes at multiple levels, status post L4-5 discectomy in 2006, and L4-5 decompression and fusion in 2013), right hip bursitis, and obesity (20 CFR 404.1520(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 and 404.1526).
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) except that she can sit for 45 minutes at a time, stand for 30 minutes at a time, and walk no more than 1 block at a time. In addition, she can occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl, she can never climb ladders, ropes or scaffolds, she can never operate foot controls with her right lower extremity, and she must avoid concentrated exposure to wetness, vibrations, and hazards, such as slippery, wet, moving, or uneven surfaces.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on June 21, 1973 and was 39 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date. Her age category has not changed as of the date of this decision (20 CFR 404.1563).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564).
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 92-41 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 and 404.1569(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act,from April 4, 2013, through the date of this decision (20 CFR 404.1520(g)).

(Tr. 21- 29)

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 July 3, 2017. On July 27, 2017, the defendant filed a memorandum in support of the Commissioner's decision, and on August 28, 2017, Plaintiff filed her reply. 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 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.

Plaintiff filed her application for disability benefits on August 8, 2013, alleging disability beginning April 4, 2013. (Tr. 192-198). On behalf of SSA, the state disability determination service denied Plaintiff's application initially on November 19, 2013, and upon reconsideration on March 6, 2014. (Tr. 129-137, 139-145). In response to a timely-filed request, SSA ALJ Stephanie Katich held a hearing on July 1, 2015. Plaintiff, her husband, Michael Evans, and a vocational expert, Robert Barkhaus, appeared and testified at the hearing. (Tr. 37). Plaintiff was represented at the hearing by attorney Ann Trzynka. (Tr. 37). On August 19, 2015, ALJ Katich issued a decision finding that Plaintiff was not disabled as defined in the Social Security Act. (Tr. 16-36). Plaintiff asked SSA's Appeals Council to review the decision, and on December 13, 2016, the Appeals Council denied her request. (Tr. 1-7, 13-15). Plaintiff timely filed her complaint in this Court pursuant to 42 U.S.C. § 405(g).

Plaintiff was 39 years old and considered a "younger person" as of April 4, 2013, the date she alleged her disability began. (Tr. 102). She has an associate's and a bachelor's degree in nursing. (Tr. 52, 242). Plaintiff's past relevant work was comprised of several jobs in nursing field, generally performed at the light and medium exertional levels. (Tr. 82-83). Plaintiff worked after April 2013, but her work activity was not disqualifying substantial gainful activity (Tr. 21).

Plaintiff and her husband testified at the administrative hearing. (Tr. 42-78). Plaintiff confirmed that she has had two surgeries on her lumbar spine; one in 2006 and another in the fall of 2013. (Tr. 44). She testified that she worked with back pain for many years as a nurse and for the most part had been on pain medications, including Ultram, Vicodin, and Percocet. (Tr. 49). She developed a severe, unusual pain in April 2013 after moving boxes in her basement. (Tr. 49). Plaintiff described her pain as very sharp pain from her SI joints, which rotated from left to theright, and continuing low back pain with a pinching or pulling sensation often going down either the right or left side with pain. (Tr. 46-47). Sitting too long caused her legs and part of her buttocks to go numb, walking less than a block caused her right leg to get weak, and standing a half-hour was her limit. (Tr. 47-48). She reported seeing Dr. Reecer every two to three months...

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