John P. v. Saul, CIVIL NO. 2:19cv0004

• Decision Date: 28 August 2019
• Docket Number: CIVIL NO. 2:19cv0004
• Citation: John P. v. Saul, CIVIL NO. 2:19cv0004 (N.D. Ind. Aug 28, 2019)
• Parties: JOHN P., Plaintiff, v. ANDREW SAUL, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Northern District of Indiana

JOHN P.¹, Plaintiff, v. ANDREW SAUL, Commissioner of Social Security, Defendant.

CIVIL NO. 2:19cv0004

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA

August 28, 2019

OPINION AND ORDER

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. § 423(a), § 1382c(a)(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 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 not less than 12 months. . . ." 42 U.S.C. §416(i)(1); 42 U.S.C. §423(d)(1)(A). A physical or mentalimpairment 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 September 30, 2018.

2. The claimant has not engaged in substantial gainful activity since October 16, 2014 the alleged onset date (20 416.971 et seq.).

3. The claimant has the following "severe" impairments: dysfunction of major joints; obesity; degenerative disc disease; and chronic obstructive pulmonary disease (COPD)(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). Specifically, he can lift and carry 10 pounds frequently and 20 pounds occasionally, sit 6 hours in and [sic] 8-hour workday, and stand/walk 6 hours in an 8-hpour [sic] workday. The claimant is limited to frequent operation foot controls with the left lower extremity. The claimant can occasionally climb ramps and stairs, but never climb ladders, ropes, or scaffolds. He can occasionally stoop, kneel, crouch, and crawl. The claimant can never work at unprotected heights or around moving mechanical parts. He should avoid even moderate exposure to dust, odors, fumes and pulmonary irritants.

6. The claimant is capable of performing past relevant work as a Security Guard. 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).

7. The claimant has not been under a disability, as defined in the Social Security Act, from October 16, 2014, through the date of this decision (20 CFR 404.1520(f) and 416.920(f)).

(Tr. 12 - 22 ).

Based upon these findings, the ALJ determined that Plaintiff was not entitled to disability benefits. The ALJ's decision became the final agency decision when the Appeals Council denied review. This appeal followed.

Plaintiff filed his opening brief on May 15, 2019. On July 23, 2019, the defendant filed amemorandum in support of the Commissioner's decision, to which Plaintiff replied on August 19, 2019. Upon full review of the record in this cause, this court is of the view that the ALJ's decision must 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 four was the determinative inquiry.

Between October 2014 and January 2017, Plaintiff treated at Robbins Health Center for diabetes mellitus, diabetic nephropathy, degenerative joint disease, osteoarthritis, obesity, hypertension, hyperlipidemia and depression. (AR 373- 76, 409-413, 474-76, 524-59.) During a psychiatric evaluation in March 2015, Plaintiff complained of depression. (AR 401.) His symptoms included low mood and poor energy. (AR 401.) He stated that his primary care physician started him on Prozac in February 2015. (AR 402.) Examining psychiatrist R. Hall-Ngorima, MD, observed depressed mood and affect, and diagnosed depressive disorder. (AR403.)

At the request of the Social Security Agency, Plaintiff underwent an internal medicine consultative examination in June 2015. Plaintiff complained of elevated blood glucose levels, left knee pain and depression. (AR 423-24.) Consultative examiner R. Kharwadkar, MD noted that Plaintiff was 70 ¼ inches tall and weighed 332.1 pounds. (AR 424.) Dr. Kharwadkar also observed that he had an abnormal and limping gait to the left. (AR 425.) Dr. Kharwadkar diagnosed morbid obesity, arthritis of left knee, diabetes mellitus, hypertension, dyslipidemia, possible diabetic neuropathy and hypoventilation. (AR 426.)

A lumbar x-ray from June 2015 showed osteoarthritic degenerative changes of the lumbar spine. (AR 433.) A right knee x-ray from June 2015 revealed mild to moderate patellofemoral osteoarthritic degenerative changes. (AR 434.) In addition, an echocardiogram from July 2015 showed left ventricular enlargement with moderate concentric hypertrophy, grade 1 diastolic dysfunction and mild to moderate left atrial enlargement. (AR 441-42.)

At the request of the Agency, Plaintiff underwent a psychological consultative examination in July 2015. (AR 454.) Consultative examiner W. Skoubis, Psy.D. observed that Plaintiff exhibited flat mood, constricted affect and slow psychomotor activity (AR 454-55), and diagnosed depressive disorder. (AR 456.) Dr. Skoubis opined that Plaintiff could not manage his own finances. (AR 456.)

During an endocrinology visit in April 2016, Plaintiff complained of right leg pain. (AR 587.) The physician noted that Plaintiff's blood glucose level was not at target and noted that if his blood sugars did not improve, he would be prescribed insulin. (AR 589.) In September 2016, Plaintiff's A1c was 9.601 and he was diagnosed with uncontrolled type 2 diabetes mellitus. (AR516-17.) During a follow up December 2016, Plaintiff had a BMI of 49 kg/m2. (AR 522.) The examining physician diagnosed uncontrolled diabetic mellitus and morbid obesity. (AR 523.)

At the request of the Agency, Plaintiff underwent another psychological consultative examination in April 2017. He complained of depressed mood, anxiety and mood swings. (AR 633.) Consulting psychologist M. O'Danovich, Ph.D. observed that Plaintiff could not complete serial sevens and erred in basic subtraction. (AR 632.) Dr. O'Danovich diagnosed major depressive disorder and opined that Plaintiff had mild limitations in carrying...