Katrina M. v. Kijakazi

• Decision Date: 13 September 2021
• Docket Number: Civil 4:20cv84
• Parties: KATRINA M.[1], Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Northern District of Indiana

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

Civil No. 4:20cv84

United States District Court, N.D. Indiana

September 13, 2021

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 a period of disability and 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 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 Act through March 31, 2022.

2. The claimant has not engaged in substantial gainful activity since May 29, 2017, the alleged onset date (20 CFR 404.1571 et seq.).

3. The claimant has the following “severe” combination of impairments: seizure disorder, migraine headaches, 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 occasionally climb ramps and stairs; never climb ladders, ropes, and scaffolds; occasionally balance, stoop, kneel, crouch, and crawl; no more than occasional exposure to extreme heat and cold, and hazards such as dangerous moving machinery and unprotected heights; no more than occasional exposure to loud noise as defined by the SCO.

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

7. The claimant was born on May 21, 1971 and was 46 years old, which is defined as a younger individual age 45-49, on the alleged disability onset date (20 CFR 404.1563).

8. The claimant has a limited 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 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 and 404.1569(a)).

11. The claimant has not been under a disability, as defined in the Social Security Act, from May 29, 2017, through the date of this decision (20 CFR 404.1520(g)).

(Tr. 23-29).

Based upon these findings, the ALJ determined that Plaintiff was not entitled to 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 June 30, 2021. On August 11, 2021 the defendant filed a memorandum in support of the Commissioner's decision to which Plaintiff replied on August 24, 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 was 46 years old as of the alleged onset date. She has an eleventh grade education. She has past relevant work as a financial services clerk and bus monitor. Plaintiff alleges problems with epilepsy, fibromyalgia, depression, plantar fasciitis, and anxiety.

Plaintiff reported to the Disability Determination Bureau that she is often depressed, but has good days and bad days. [Tr. at 278]. Her anxiety and depression increased after she ran out of medication and had no insurance to see a doctor. Id. On her bad days she just stays in bed, and this can last for several days. Id. She takes longer to do things, due to both her physical and mental conditions. Id. Her left side is slower since her seizures. Id. She would rather stay at home than socialize. Id. She has constant worry, and she gets distracted very easily. Id. She can only sleep a couple hours due to her anxiety. Id. When cleaning around the house she has to take a break every ten to fifteen minutes. [Tr. at 324]. She has trouble walking through stores. Id. After walking for thirty to forty five minutes, her feet, ankles, and legs are severely swollen for a few hours after. Id. High stress situations frequently trigger a seizure. Id. Her short term memory is poor. Id.

On December 7, 2017, Plaintiff went to the emergency room after having a seizure. [Tr. at 479]. She takes Depakote and had not had a seizure since 2015. Id. She presented as vomiting upon arrival. Id. She was given IV depacon. Id. Her husband witnessed the seizure and reported that it lasted about ten minutes, and she was laying against the cabinets in the kitchen and began breathing deeply and convulsing. [Tr. at 480]. When the seizure finished she states she vomited and was still feeling nauseous at the hospital. Id. A chest x-ray was normal. [Tr. at 484].

In 2018, Plaintiff attended a psychological consultative examination by a Social Security Administration examiner. [Tr. at 495]. She reported she does not drive because she is not willing to take a chance on when another seizure might occur. [Tr. at 497]. She has difficulty with her memory. Id. She has fibromyalgia with resulting bodily pain. Id. She has significant sleep problems because her mind races. Id. She has anxiety and likes things kept in place and things done when she asks. Id. Her depression began when her daughter passed away and she went through a divorce. Id. She was diagnosed with bipolar disorder recently and has depression with phases where she is angry with explosive outbursts, she is aggressive, and she throws things. Id. On the mental status examination, she did poorly on immediate memory and made errors on...