John H. v. Kijakazi

• Decision Date: 13 December 2021
• Docket Number: CIVIL 2:20cv428
• Parties: JOHN H.[1], Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Northern District of Indiana

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

CIVIL No. 2:20cv428

United States District Court, N.D. Indiana

December 13, 2021

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 and for Supplemental Security Income (SSI) under Title XVI of the 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 September 30, 2019.

2. The claimant has not engaged in substantial gainful activity since May 2, 2014, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).

3. The claimant has the following severe impairments: seizure disorder, asthma, degenerative disk disease, degenerative joint disease of the left shoulder, migraine headaches, bipolar disorder, anxiety disorder and neurocognitive disorder (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) as the claimant is able to lift and/or carry 10 pounds occasionally, sit for six hours in an eight hour workday and stand and/or walk for two hours in an eight hour workday, except: the claimant must be able to use an assistive device when ambulating, is unable to climb ladders, ropes, or scaffolds, crawl or reach overhead with the left upper extremity, can occasionally climb ramps and stairs, balance, stoop, kneel, crouch or reach in all other directions with the left upper extremity and must avoid concentrated exposure to hazards such as unprotected heights or moving mechanical parts, extreme humidity, wetness, temperature and vibration, pulmonary irritants such as dust, odors and fumes and to loud noise without the use of hearing protection and all exposure to operating a motor vehicle. In addition, the claimant is able to perform simple, routine tasks and is able to interact with supervisors, co-workers, and the public on an occasional, brief and superficial basis as defined as no lower than an 8 in terms of the 5^th digit of the DOT Code.

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

7. The claimant was born on December 24, 1978 and was 35 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).

8. The claimant has a limited education 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 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 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), 416.969, and 416.969(a)).

11. The claimant has not been under a disability, as defined in the Social Security Act, from May 2, 2014, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

(Tr. 18-33).

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

Plaintiff filed his opening brief on August 10, 2021. On September 21, 2021 the defendant filed a memorandum in support of the Commissioner's decision, to which Plaintiff replied on October 19, 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 5 was the determinative inquiry.

Plaintiff has reported pain in numerous areas throughout his body, including his: neck; upper, middle, and lower back; shoulders; arms; elbows; wrists; hands; fingers; hips; buttocks; thighs; legs; knees; calves; ankles; and feet. He also reported numbness and tingling/paresthesias. Numbness and tingling/paresthesias particularly affected his arms, hands, fingers, legs, and feet. He reported weakness, particularly in his arms, hands, legs, and feet. Numbness and weakness affected his ability to perform fine motor activities. It also affected his legs, causing multiple falls. He reported using a cane. Various things would exacerbate Plaintiff's pain, including: sitting; maintaining prolonged position or inactivity; standing; walking; bending; activity; moving his head side to side or up and down; lifting objects; lifting his arms; reaching overhead; using his hands; and flexion of his wrist (Tr. 877). His pain was relieved with pain medications and rest. Plaintiff reported that due to pain he had to change positions every 15 minutes. (Tr. 872).

During examinations, Plaintiff's cervical paravertebral muscles revealed hypertonicity, spasms, tenderness, tight muscle bands on both sides, and he had tenderness in his paracervical muscles, rhomboids, and sternoclavicular joint. Examination of his thoracic spine revealed spasms and tenderness in his bilateral thoracic paravertebral muscles and tenderness in his paracervical muscles, rhomboids, and sternoclavicular joints. Examinations of his lumbar spine revealed spasms and tenderness in his paravertebral muscles, and tight muscle bands and trigger points, with a twitch response along with radiating pain to...