Jackie E. v. Kijakazi

• Decision Date: 06 May 2022
• Docket Number: CIVIL 3:21cv845
• Parties: JACKIE E.[1], Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Northern District of Indiana

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

CIVIL No. 3:21cv845

United States District Court, N.D. Indiana

May 6, 2022

OPINION AND ORDER

William C. Lee, 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) under Title II of 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 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 December 31, 2024.

2. The claimant has not engaged in substantial gainful activity since October 31, 2019, the alleged onset date (20 CFR 404.1571 et seq.).

3. The claimant has the following medically determinable impairments: history of left breast cancer stage II ER/PR negative/HER-2 positive in 2002 followed by Cytoxan, Taxotere and DCIS. She had Stage 0 right DCIS breast cancer in March 2018 requiring biopsy, pathology and mastectomy by May 2018. She had seromucinous borderline tumor in October 2018 followed by six months of treatment with six months of side effects only. She had acute medical anxiety, acute colitis, high cholesterol, acute high blood pressure, diabetes mellitus II, mild hyperinflation of the lungs in January 2021, hepatic steatosis and hepatomegaly, severe episode of recurrent major depressive disorder, reported arthritis, non-intractable and unspecified migraines, hyperlipidemia, benign hypertension, history of infected abdominal wall mesh, "minimal" and "mild" degenerative changes of the right shoulder (20 CFR 404.1521 et seq.).

4. The claimant does not have an impairment or combination of impairments that has significantly limited (or is expected to significantly limit) the ability to perform basic work-related activities for 12 consecutive months; therefore, the claimant does not have a severe impairment or combination of impairments (20 CFR 404.1521 et seq.).

5. The claimant has not been under a disability, as defined in the Social Security Act, from October 31, 2019, through the date of this decision (20 CFR 404.1520(c)).

(Tr. 14-21).

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 February 21, 2022. On April 6, 2022 the defendant filed a memorandum in support of the Commissioner's decision to which Plaintiff replied on April 29, 2022. 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 2 was the determinative inquiry.

Plaintiff was born on February 23, 1961. (Tr. 33). She was fifty-eight years old on her alleged onset date and considered a person of advanced age. (Tr. 65, 202). 20 C.F.R. § 404.1563(e). On February 23, 2021, Plaintiff turned sixty years old and became a person closely approaching retirement age. Id.

Plaintiff had at least a high school education. (Tr. 726). She worked continuously since entering the job market at sixteen years old, until the onset of her disability on October 31, 2019. (Tr. 189-191, 202). Mostly recently, Plaintiff worked as a school janitor for 27 years. (Tr. 292).

Plaintiff alleged disability due to metastatic ovarian cancer, history of breast cancer, diabetes, diverticulitis, high blood pressure, high cholesterol, cognitive issues, pain/numbness, nausea/ vomiting, and mood swings. (Tr. 201).

In support of remand, Plaintiff first argues that the ALJ erred in his finding that Plaintiff had no severe impairments. It is the Commissioner's own policy that severity at step two of the sequential evaluation process is only a de minimis screening standard which is satisfied if the claimant shows that the impairment has more than a slight or minimal effect. See Social Security Ruling (SSR) 85-28, 1985 WL 56856 (stating that a claimant need only demonstrate something beyond a slight abnormality or combination of abnormalities that have more than a minimal effect on the ability to work). The Supreme Court has stated that a step two severity determination is a "de minimis" inquiry. Bowen v. Yuckert, 482 U.S. 137, 153-54 (1987). When any doubt exists, a step two determination must be resolved in favor of the claimant. Id.; see also Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir. 1988); McCrea v. Comm'r of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004) (stating that it is "the common-sense position that because step two is to be rarely utilized as basis for the denial of benefits . . . [g]reat care should be exercised in applying the not severe impairment concept . . . [because] its invocation is certain to raise a judicial eyebrow") (citations omitted).

The Court of Appeals for the Seventh Circuit has confirmed that severity is a de minimis standard. Madrid v. Astrue, 2011 WL 528810, at *2-4 (7th Cir. 2011) (remanding where ALJ found claimant's knee impairment non-severe at step two, despite evidence that it had more than a minimal effect on his ability to perform basic work activity); see also O'Connor-Spinner v. Colvin, 832 F.3d 690, 697-98 (7th Cir. 2016) (remanding where ALJ relied on non-examining State Agency opinions to find depression was not severe). Here, however, the ALJ found that Plaintiff's multiple post-treatment impairments arising from multiple cancer diagnoses and surgeries did not meet even the de minimis standard for severity.

Plaintiff argues that the ALJ's failure to consider her residual symptoms from treatments for multiple cancers in combination was in error. An ALJ must consider all of the claimant's impairments in combination: "In determining whether your physical or mental impairments are of sufficient medical severity that such impairment or impairments could be the basis of eligibility under the law, we will consider the combined effect of all of your impairments without regard to whether any such impairment, if considered separately, would be of...