Dickinson v. Commissioner of Social Security

Filing 22

OPINION AND ORDER: The decision of the Commissioner of Social Security is AFFIRMED. Signed by Judge William C Lee on 6/9/2017. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
SHELIA K. DICKINSON,

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

CIVIL NO. 1:16cv185

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. 42 U.S.C. §416(I). 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 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 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 last met the insured status requirements of the Social Security Act
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on March 31, 2011.
2.

The claimant did not engage in substantial gainful activity during the period from
her amended alleged onset date of January 1, 2007, through her date last insured
of March 31, 2011 (20 CFR 404.1571 et seq.).

3.

Through the date last insured, the claimant had the following severe impairment:
asthma (20 CFR 404.1520(c)).

4.

Through the date last insured, the claimant did not have an impairment or
combination of impairments that met or medically equaled 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).

5.

After careful consideration of the entire record, the undersigned finds that,
through the date last insured, the claimant had the residual functional capacity to
perform sedentary work as defined in 20 CFR 404.1567(a), and as follows: lift,
carry, push, and pull ten pounds throughout the workday; sit six hours in an eighthour workday, and stand and/or walk two hours in an eight-hour workday;
occasional bending and stooping in addition to what is required to sit; no work
requiring concentrated exposure to extremes in heat, cold, and humidity, and
concentrated exposure to particulates such as dusts, fumes, and gases.

6.

Through the date last insured, the claimant was capable of performing past
relevant work as a ticket seller and office manager. This work did not require the
performance of work-related activities precluded by the claimant’s residual
functional capacity (20 CFR 404.1565).

7.

The claimant was not under a disability, as defined in the Social Security Act, at
any time from March 15, 2011, the alleged onset date, or even January 1, 2007,
(the amended onset date) through March 31, 2011, the date last insured (20 CFR
404.1520(f)).

(Tr. 21-29).
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 December 23, 2016. On February 2, 2017, the

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defendant filed a memorandum in support of the Commissioner’s decision. Plaintiff has declined
to file a reply. Upon full review of the record in this cause, this court is of the view that the
ALJ’s decision should be affirmed.
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.
Plaintiff completed the 10th grade in school (Tr. 168). She was 51 years old as of her
alleged disability onset date and 56 years old as of her date last insured (Tr. 43, 144). Plaintiff
previously worked as (1) a ticket seller, which the vocational expert characterized as unskilled in
nature and light in exertion per the Dictionary of Occupational Titles (DOT), but sedentary as she
performed it; and (2) an office manager, which the vocational expert characterized as semi-skilled
in nature, and light in exertion per the DOT, but sedentary as she performed it (Tr. 69).

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Plaintiff argues that the ALJ should have considered her hand tremor a serious disabling
condition. Garland D. Anderson, M.D., treated Plaintiff prior to her alleged disability onset date
and during the relevant period. The record contains Dr. Anderson’s treatment notes from 2006
(prior to Plaintiff’s alleged onset date), but those records do not contain any complaints or clinical
evidence of tremors (Tr. 476-79).
In January 2007, Plaintiff complained of having right arm and shoulder pain, but she did
not complain of tremors (Tr. 474). Dr. Anderson noted no neurological or musculoskeletal
deficits (Tr. 474). More than a year later, in February 2008, Plaintiff followed-up with Dr.
Anderson, but, again, she did not complain of having tremors (Tr. 472). Dr. Anderson did not find
any neurological deficits, nor did he report any tremors present (Tr. 472).
In April 2008, Dr. Anderson noted that Plaintiff “seems to have some kind of fine tremor,
which is almost a familial type of tremor,” but he did not include tremors on the list of diagnoses
or recommend any apparent treatment (Tr. 468). Nor did Dr. Anderson opine that Plaintiff had
any work-related limitations from the tremor (Tr. 468).
Plaintiff was a “no show” at an appointment scheduled with Dr. Anderson in January
2009 (Tr. 467). In May 2009, Plaintiff reported to Dr. Anderson that she “ha[d] been very
nervous taking care of her aged mother” who had Alzheimer’s (Tr. 465). Dr. Anderson observed
no neurological deficits; rather, he found that Plaintiff was alert and responsive without
neuropathy (Tr. 465). Plaintiff did not complain of having tremors, nor did Dr. Anderson report
evidence of any such condition (Tr. 465).
A November 2009 treatment note indicates that Plaintiff “ha[d] been very busy taking care
of her invalid mother and also her invalid aunt lives with her” (Tr. 463). It was noted that “[s]he
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has some slight familial tremor,” but Dr. Anderson noted no neurological deficits (Tr. 463).
In September 2014, medical expert Mark Faber, M.D., filled out medical interrogatories at
the request of the ALJ (Tr. 497-99). After reviewing Plaintiff’s records, Dr. Faber indicated that
Plaintiff had “COPD/asthma” and “breast cancer – treated” (Tr. 497). He opined that Plaintiff
could work at the “sedentary level due to poor pulmonary function” (Tr. 499). He indicated that
Plaintiff could lift and/or carry 10 pounds occasionally and less than 10 pounds frequently; sit up
to 6-8 hours in an 8-hour day; and stand and or walk up to 2 hours in an 8-hour day (Tr. 499). He
assessed no further restrictions for foot or hand controls, and he expressly found that Plaintiff had
“no manipulative reductions” (Tr. 499). Dr. Faber opined that Plaintiff should have no exposure
to concentrated respiratory irritants or extremes of hot or cold; and she should not climb ropes
and ladders (Tr. 499). He indicated that Plaintiff should be limited to sedentary work “at least
back to 1/1/[2]011” (Tr. 499).
In support of remand or reversal, Plaintiff argues that (1) the ALJ should have found
Plaintiff’s hand tremors constituted a medically determinable severe impairment at step two of the
sequential evaluation process; and (2) the ALJ should have included in his RFC finding
limitations from Plaintiff’s “hand tremor impairment” (Pl.’s Br. at 3-4, 6-9).
The record clearly shows that Plaintiff did not meet her burden of establishing that
familial tremors constituted a severe impairment at step two of the sequential evaluation.
Under the Commissioner’s regulations, an impairment is severe if it significantly limits the
claimant’s physical or mental ability to do basic work activities such as walking, standing, sitting,
lifting, pushing, pulling, reaching, carrying, or handling. 20 C.F.R. § 404.1521. Also, an
impairment is not severe when the medical evidence establishes only a slight abnormality or
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combination of slight abnormalities that would have no more than a minimal effect on the ability
to perform basic work activities. Social Security Ruling (SSR) 85-28, 1985 WL 56856 (SSA). As
noted above, Plaintiff has a dual burden of production and persuasion at step two; she must
produce evidence that proves that her impairment causes the functional limitations she alleges in
the severity she alleges. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). Finding an
impairment not severe does not merit remand so long as the ALJ identifies other severe
impairments and continues with the sequential evaluation. Arnett v. Astrue, 676 F.3d 586, 591
(7th Cir. 2012) (citing Castile v. Astrue, 617 F.3d 923, 927-28 (7th Cir. 2010). Here, the ALJ
found that Plaintiff’s asthma was a severe impairment at step two, but he also found that the
“evidence was insufficient to establish any other severe physical or mental impairment” prior to
Plaintiff’s date last insured (Tr. 21).
In the present case, the ALJ specifically considered Plaintiff’s complaints of hand tremors,
but found that the evidence failed to substantiate a severe impairment (Tr. 23). The ALJ discussed
a November 30, 2009 treatment note in which Dr. Anderson recorded that Plaintiff reported
having “some slight tremor” (Tr. 23, 463). As the ALJ indicated, Dr. Anderson’s examination
findings did not list “tremor,” and he did not record a diagnosis of familial tremor on that date
(Tr. 23, 463). The ALJ also discussed Plaintiff’s visit to Dr. Anderson’s office on August 4, 2011,
during which Plaintiff reported having a familial tremor “at this time” (Tr. 23, 275). Dr. Anderson
observed the presence of a tremor during his examination (Tr. 23, 275). He did not, however,
record a diagnosis of familial tremor (Tr. 23, 275). Anderson noted that although “no
medications [were] involved,” it was an issue they “could certainly address … at a later date if
necessary” (Tr. 23, 275).
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The ALJ found that “[t]he medical evidence is insufficient to support [Plaintiff’s]
allegations of significant tremor prior to the [date last insured]” (Tr. 23). Plaintiff argues that the
ALJ “missed” the objective evidence of her alleged tremors, in particular an April 2008 treatment
record in which Dr. Anderson noted that Plaintiff “seems to have some kind of fine tremor, which
is almost a familial type of tremor” (Pl.’s Br. at 6; Tr. 468). An ALJ, however, is not required to
address “every piece of evidence or testimony in the record, [but] the ALJ’s analysis must provide
some glimpse into the reasoning behind [the] decision to deny benefits.” Zurawski v. Halter, 245
F.3d 881, 888 (7th Cir. 2001).
In the present case, it is clear that the ALJ sufficiently articulated his reasons through his
analysis of relevant evidence (Tr. 23). The ALJ properly assessed the medical and non-medical
evidence from prior to Plaintiff’s date last insured (March 31, 2011) to determine that Plaintiff’s
tremors were not severe. During the relevant period, Dr. Anderson did not find any significant
neurological deficits (e.g., weakness, abnormal reflexes, or decreased sensation). This evidence
does not corroborate Plaintiff’s claims about her tremors. Furthermore, Dr. Anderson did not
opine on any functional limitations related to the tremors. Nor did he recommend any treatment or
therapy to address tremors. See Walker, 2016 WL 7383806, at *3 (noting that the “Plaintiff’s
sporadic treatment history supports the ALJ’s determination that Plaintiff’s gout was not
disabling). Moreover, Plaintiff’s evidence from July 2012 through April 2014 (Pl.’s Br. at 3) does
not demonstrate that the tremors constituted a severe impairment, within the meaning of the
regulations, prior to Plaintiff’s date last insured.
Plaintiff cites to information from the Mayo Clinic’s website describing common
symptoms related to “essential tremors” (Pl.’s Br. at 3). But she does not explain how the Mayo
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Clinic information demonstrates how her alleged tremors caused more than a minimal effect on
her ability to perform work-related activities during the relevant period, as was her burden. See
Walker v. Colvin, No. 4:16-cv-0033, 2016 WL 7383806, at *3 (N.D. Ind. Dec, 20, 2016) (“At step
two, the claimant has the burden to prove that his impairment is severe by showing that the
impairment significantly limits his ability to do basic work activities”) (citation omitted). Plaintiff
also argues in her brief that “[s]urely, the ALJ is not suggesting that shaky hands have no impact
on one’s ability to handle tickets, handle and make change, use a keyboard, answer a phone,
handle paperwork, among other similar functions related to” the ticket seller and office manager
jobs (Pl.’s Br. at 7). Beyond speculation, however, Plaintiff cites to no evidence showing that her
alleged tremors had such an impact on her.
Plaintiff argues that the ALJ “justif[ied]” finding the tremors a non-severe impairment at
step two by noting that “the inability to carry a cup of coffee would not represent a limitation that
would more than minimally affect most work-related activities (outside of work in the food
services)” (Pl.’s Br. at 6, citing Tr. 28). She contends that there is no vocational expert testimony
to support the ALJ’s statement (Pl.’s Br. at 6). Plaintiff’s arguments are flawed.
First, Plaintiff’s argument is undermined by her own testimony. By way of example,
Plaintiff testified that the tremors had been present for about ten years, during which time she
worked (Tr. 23, 60). Her work ended in 2007 because the business closed, not due to an
impairment. (Tr. 29). As the ALJ noted, Plaintiff testified “that the symptoms were
embarrassing,” but the only “work-related effect” that the tremors allegedly caused was that she
“could not transport beverages” (Tr. 23, 60). At one point, she testified that if she wanted to drink
coffee, someone else got it for her (Tr. 60). At another point during the hearing, Plaintiff admitted
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that she was able to get herself something to drink (Tr. 71).
Second, Plaintiff explained that her ticket seller job involved taking money from ticket
purchasers (Tr. 65). She was “pretty much the money watcher all day long” (Tr. 70). She did not
report any work-related difficulties with taking money. Nor did she describe her ticket seller job
as a food services job. She testified that the Bingo Hall where she worked held dinners and
parties, but there is no indication that her job responsibilities included serving drinks or food (Tr.
66). Additionally, there is no evidence that Plaintiff’s office manager job involved food servicerelated activities (Tr. 70-71).
This court finds that the ALJ provided an adequate discussion to permit meaningful
review of his conclusion that tremors had no more than a minimal effect on Plaintiff’s workrelated activities. Because substantial evidence supports the ALJ’s decision, it will be affirmed.
Next, the court will consider Plaintiff’s argument that the Alj should have included hand
tremors in his RFC limitations. However, it is clear that the ALJ properly determined Plaintiff’s
RFC in light of all the evidence of record. An RFC is the most an individual can do despite her
limitations. 20 C.F.R. § 404.1545. The RFC assessment is an administrative finding, not a
medical opinion. SSR 96-5p, 1996 WL 374183, at *5 (SSA). The determination of an
individual’s RFC need not be based on a specific medical opinion because it is a determination
reserved to the ALJ as fact-finder for the Commissioner. 20 C.F.R. § 404.1527(d)(2). When
assessing a claimant’s RFC, an ALJ considers both the severe and non-severe impairments (Tr.
20). See 20 C.F.R. §§ 404.1520(e), 404.1545(a)(2).
In this case, the ALJ found that Plaintiff had the RFC to perform:
[S]edentary work as defined in 20 CFR 404.1567(a), and as
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follows: lift, carry, push, and pull ten pounds throughout the
workday; sit six hours in an eight-hour workday, and stand and/or
walk two hours in an eight-hour workday; occasional bending and
stooping in addition to what is required to sit; no work requiring
concentrated exposure to extremes in heat, cold, and humidity, and
concentrated exposure to particulates such as dusts, fumes, and
gases.
(Tr. 27). The ALJ indicated that he considered the entire record, including Plaintiff’s allegations
concerning tremors, which the ALJ found to be non-severe (Tr. 23, 27-28). The ALJ noted that he
fully discussed the tremor allegations at step two of the sequential evaluation, and it was
unnecessary to repeat the discussion in detail (Tr. 23, 28). As discussed above, the ALJ evaluated
the records in which Plaintiff alleged having tremors, but there was no evidence that the
symptoms significantly affected her ability to do work-related activities. The ALJ found that
Plaintiff’s allegations concerning the intensity, persistence, and limiting effects of her symptoms
were not entirely credible (Tr. 28). See Williamson v. Colvin, No. 4:13-CV-1-JVB, 2014 WL
1317133, at *6 (N.D. Ind. Mar 28, 2014) (“An ALJ’s credibility finding is entitled to
‘considerable deference’ and will only be overturned if patently wrong.”) (citing Terry v. Astrue,
580 F.3d 471, 477 (7th Cir. 2009). As the ALJ indicated, “most of the claimant’s allegations
regarding limitations during the period between the amended onset date and the [date last insured]
are either not supported or contradicted by the objective medical evidence” (Tr. 28). The ALJ
concluded that “[t]he evidence does not suggest that additional limits were necessary” (Tr. 29).
Plaintiff contends that the ALJ should have included in the RFC a limitation involving
occasional – or less than occasional – handling and fingering because of the tremors, and had the
ALJ done so, he “may very well have found” that she was disabled (Pl.’s Br. at 9). Plaintiff cites
to no particular evidence in which a medical source opined that Plaintiff’s tremors caused such
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manipulative limitations (Tr. 29). Rather, as noted above, records prior to Plaintiff’s date last
insured indicate that she had only “some slight familial tremor” or “some kind of fine tremor”
(Tr. 463, 468), for which she received no apparent treatment. 20 C.F.R. § 404.1529(c)(3)(iv)-(vi)
(medication, treatment, and other measures that provide relief are factors that should be
considered when evaluating symptoms). This is inconsistent with the degree of difficulty that
Plaintiff now alleges.
Moreover, Dr. Anderson did not opine that Plaintiff had any manipulative limitations from
the tremors (see, e.g., Tr. 463, 465, 468, 472, 474). Further, the ALJ noted that the State agency
medical consultants who reviewed Plaintiff’s records found that there was insufficient evidence to
establish severe physical impairments prior to Plaintiff’s date last insured (Tr. 28, 79-80, 84-85).
They did not opine that Plaintiff had any manipulative limitations. Likewise, Dr. Faber’s
September 2014 report provides no basis to include any handling or fingering limitations in
Plaintiff’s RFC (Tr. 499). In fact, Dr. Faber expressly found that Plaintiff had “no manipulative
reductions” (Tr. 499). This substantial evidence provides support for the ALJ’s RFC finding.
The ALJ further noted that during much of the relevant period, Plaintiff cared for her
ailing mother (and possibly her ailing aunt), which likely required exertion beyond that defined in
the RFC finding (Tr. 29). The record reveals that Plaintiff reported that she prepared meals and
helped her mother with her personal care (Tr. 51-52, 54). Further, as the ALJ noted, Plaintiff
testified that she experienced tremors for approximately ten years, including the period that she
worked (Tr. 23). Finally, the ALJ noted that Plaintiff’s work ended in 2007 due to the business
closing, not due to an impairment (Tr. 29). These factors undermine Plaintiff’s claim that the
tremors caused limitations that precluded her from doing her past relevant work.
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This court finds that the ALJ’s RFC finding is supported by substantial evidence and, as
the ALJ indicated, “[t]he evidence does not suggest that additional limits were necessary” (Tr.
29). The ALJ posed proper hypotheticals to the vocational expert based on the evidence of record
(Tr. 71-72). See Jens v. Barnhart, 347 F.3d 209, 213 (7th Cir. 2003) (the hypothetical question
need only contain a description of the limitations supported by the medical evidence of record).
The vocational expert testified that Plaintiff could perform her past relevant work (Tr. 71-72).
The ALJ was entitled to rely on the vocational expert’s testimony as constituting substantial
evidence supporting the ALJ’s finding Plaintiff not disabled at step four of the sequential
evaluation process (Tr. 29-30). See O’Connor-Spinner v. Astrue, 627 F.3d 614, 620-21 (7th Cir.
2010) (holding that it must be clear that a vocational expert took into account all of the
impairments that the ALJ recognized to “assure reviewing courts that the [vocational expert’s]
testimony constitutes substantial evidence of the jobs a claimant can do.”). The ALJ was not
required to go beyond step four. 20 C.F.R. §§ 404.1520(a)(4)(iv), (f), 404.1560.
Because the ALJ found Plaintiff could do her past relevant work at step four, the burden
of proof was on Plaintiff to demonstrate that her impairments and resulting limitations would
prevent her from doing that work. Plaintiff argues that her case should be remanded because the
SCO requires constant handling and fingering for a ticket taker job and frequent handling for an
office manager job (Pl.’s Br. at 6-7). But the DOT, upon which the vocational expert relied,
similarly identifies the ticket taker job as involving constant handling and fingering and the office
manager job as involving frequent handling and fingering. See DOT 211.467-030, 1991 WL
671853 (GPO); DOT 219.362-010, 1991 WL 671953 (GPO). Regardless of that fact, Plaintiff’s
argument misses a critical point: as the ALJ found, the record does not support a finding that
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Plaintiff had manipulative limitations that would have precluded her from doing either of those
jobs as she performed them or as they are performed according to the DOT (Tr. 27-30).
Accordingly, for all the above reasons, the ALJ’s decision will be affirmed.
Conclusion
On the basis of the foregoing, the decision of the ALJ is hereby AFFIRMED.

Entered: June 9, 2017.

s/ William C. Lee
William C. Lee, Judge
United States District Court

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