Michelle O. v. Berryhill, CIVIL NO. 2:18cv358

• Decision Date: 13 June 2019
• Docket Number: CIVIL NO. 2:18cv358
• Parties: Michelle O., Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Northern District of Indiana

Michelle O¹., Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

CIVIL NO. 2:18cv358

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA FORT WAYNE DIVISION

June 13, 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), as provided for in 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 DIB 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 September 30, 2018.

2. The claimant has not engaged in substantial gainful activity since March 4, 2013, the alleged onset date (20 CFR 404.1571 et seq.).

3. The claimant has the following severe impairments: bipolar disorder, anxiety, degenerative disc disease of the cervical spine, 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 lifting/carrying 20 pounds occasionally and 10 pounds frequently. The Claimant could stand/walk approximately 6 hours per 8-hour workday and sit approximately 6 hours. Claimant could never climb ladders, ropes, or scaffolds. She could perform postural activities (i.e. climbing ramps/stairs, balancing, stooping, crouching, kneeling, crawling) on a frequent basis. Claimant is to avoid concentrated exposure to dangerous moving machinery and all exposure to unprotected heights. Claimant is limited to simple and routine work. Claimant is limited to work performed at an average pace with no fast paced production requirements involving only end of day production requirements, with no hourly or other periodic production quotas. Claimant can have only occasional contact with the public in the work setting and only occasional contact with co-workers and supervisors.

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

7. The claimant was born on November 13, 1964 and was 48 years old, which is defined as a younger individual age 18-49, on the alleged onset date (20 CFR 404.1563). Upon reaching 50 years of age claimant was classified as an individual closely approaching advanced age.

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 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 March 4, 2013, the alleged onset date, through the date of this decision (20 CFR 404.1520(g)).

(Tr. 576- 586).

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 February 18, 2018. On March 22, 2019 the defendant filed a memorandum in support of the Commissioner's decision, to which Plaintiff replied on April 16, 2019. 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 5 was the determinative inquiry.

Plaintiff was born on November 13, 1964 and was 53 years old on the date that the ALJ issued his decision. Treating psychiatrist Dr. Ara Yeretsian, M.D. diagnosed Plaintiff with bipolar disorder in 2006 after Plaintiff demonstrated paranoid ideation, flight of ideas, and over reactivity. (AR 521-22.) Dr. Yeretsian continued to treat Plaintiff through the alleged disability onset date, at which time Plaintiff averred that she was unable to perform household chores, suffered anhedonia, and did not desire to socialize with others. (AR 545.) Dr. Yeretsian noted that Plaintiff frequently changed the subject of the discussion to anxiety-related topics, demonstrated a distressed and tearful affect, and manifested excited and apprehensive speech. (AR 546.) Dr. Yeretsian noted that Plaintiff suffered cyclical mood change that included periods of mania and periods of depression. Id. Dr. Yeretsian prescribed the antimanic medication Lithium. Id. At a subsequent medical appointment in March 2013, Dr. Yeretsian prescribed the bipolar disorder medication Lamictal and the antipsychotic Geodon. (AR 546.) In late March 2013, Dr. Yeretsian observed depressed mood and flat affect. (AR 547.) In April 2013, Plaintiff affirmed that she continued to lack motivation and that she spent a considerable portion of the day lying down. (AR 548.) She described poor concentration and attention that was interrupted by "...intrusive feelings of anxiety." (AR 549.) Dr. Yeretsian again noted depressed mood and flat affect. Id. At a subsequent April treatment session, Plaintiff manifested tearful affect. (AR 550.) Dr. Yeretsian opined that Plaintiff continued to suffer depression. Id. In late April 2013, Plaintiff admitted to paranoid ideation, decreased motivation, and anxiety. Id. Dr. Yeretsian observed depressed mood and flat and tearful affect. (AR 551.) He opined that she was very depressed and anxious. Id. In June 2013, Plaintiff related to Dr. Yeretsian that she was shaky, upset, and edgy. (AR 553.) Dr. Yeretsian noted "clear-cut switches in disposition" and that Plaintiff was "into frank withdrawal and depression." (AR...