Frazee v. Commissioner of Social Security
OPINION AND ORDER: The ALJ's decision is hereby AFFIRMED. Signed by Judge William C Lee on 8/2/2017. (tc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
PATTY ANN FRAZEE,
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
CIVIL NO. 1:16cv329
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:
The most recent favorable medical decision finding that the claimant was disabled
is the determination dated September 9, 2009. This is known as the “comparison
point decision” or CPD.
At the time of the CPD, the claimant had the following medically determinable
impairments: vascular insufficiency and morbid obesity. These impairments were
found to meet section 4.11A of 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
Since the CPD, the claimant has not engaged in substantial gainful activity (20
Since February 28, 2013, the claimant has not had an impairment or combination
of impairments which has met or medically equaled the severity of an impairment
listed in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1525 and
Medical improvement occurred as of February 28, 2013 (20 CFR 404.1594(b)(1)).
The medical improvement is related to the ability to work because, since February
28, 2013, the claimant’s CPD impairments have no longer met or medically
equaled the same listing that was met at the time of the CPD (20 CFR
Since February 28, 2013, the claimant has had the following severe impairments:
morbid obesity and osteoarthritis in both knees (20 CFR 404.1594(f)(6).
Since February 28, 2013, the claimant has had the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) except that she is not able
to climb ladders, ropes, or scaffolds and she is only occasionally able to climb
ramps and stairs, balance, stoop, kneel, crouch, and crawl.
Since February 28, 2013, the claimant has been capable of performing some of her
past relevant work (20 CFR 404.1565).
The claimant’s disability ended as of February 28, 2013 and she has not become
disabled again through the date of this decision (20 CFR 404.1594(f)(7)).
Based upon these findings, the ALJ determined that Plaintiff was not entitled to disability
Plaintiff initially applied for Disability Insurance Benefits (DIB) under Title II of the
Social Security Act, 42 U.S.C. § 423(d) in June 2009, alleging a disability as of June 1, 2008 (Tr.
143-49). Plaintiff’s application was granted in September 2009, and she was found disabled as of
May 29, 2009 (Tr. 53). After a continuing disability review analysis was conducted, Plaintiff was
determined no longer disabled as of February 28, 2013, and this determination was upheld on
reconsideration (Tr. 54-58). After a hearing in February 2015, an Administrative Law Judge
(ALJ) issued a decision on March 27, 2015, in which she found that Plaintiff was no longer
disabled as of February 28, 2013 (Tr. 18-52). The Appeals Council denied Plaintiff’s request for
review of this decision (Tr. 1-7), thereby rendering it the Agency’s final decision for purposes of
judicial review. 20 C.F.R. § 404.981. The Court has jurisdiction pursuant to 42 U.S.C. § 405(g).
To evaluate whether Plaintiff's disability ceased, the ALJ must follow the statutory and
regulatory criteria for continuing disability review, 42 U.S.C. § 423(f); 20 C.F.R. § 404.1594.
This determination is made on a “neutral basis . . . without any initial inference” that the
claimant's disability continues. 42 U.S.C. § 423(f)(4); 20 C.F.R. § 404.1594(b)(6). Thus, Plaintiff
is not entitled to a presumption of continuing disability. See Soper v. Heckler, 754 F.2d 222, 224
n.1 (7th Cir. 1985). The determination of whether disability has ceased involves an eight-step
process set forth at 20 C.F.R. § 404.1594(f):
(1) Is the beneficiary working? If yes (and if there is no issue of a
trial work period), the beneficiary is no longer disabled. (2) If a
beneficiary is not working, do his impairments meet or equal the
Listings? If yes, disability is continued. (3) If the beneficiary’s
impairments do not meet or equal the Listings, has there been any
medical improvement? If yes, the sequential analysis proceeds to
step four; if no, it proceeds to step five. (4) Is the medical
improvement related to the beneficiary’s ability to work? If yes, the
sequential analysis proceeds to step six; if no, it proceeds to step
five. (5) If there is no medical improvement, or if the medical
improvement is not related to the beneficiary’s ability to work,
does one of the exceptions to medical improvement apply? If an
exception does apply, the beneficiary is no longer disabled. If none
of the exceptions apply, the sequential analysis continues. (6) If
medical improvement is related to the ability to work, are all
current impairments severe in combination? If not, the beneficiary
is no longer disabled. (7) If the impairments are severe, the
Commissioner determines the beneficiary’s RFC and considers
whether she can do her past work. If the beneficiary can, she is no
longer disabled. (8) If the beneficiary cannot do her past work, the
Commissioner decides whether she can do other work given her
RFC, age, education, and work experience. If the beneficiary can,
she is no longer disabled; if not, disability is continued.
See 20 C.F.R. § 404.1594(f).
In the present case, Step Seven was the determinative inquiry, as the ALJ held that the
Plaintiff has the RFC to perform her past work.
Plaintiff filed her opening brief on March 14, 2017. On June 9, 2017, the defendant filed
a memorandum in support of the Commissioner’s decision, to which Plaintiff replied on July 4,
2017. Upon full review of the record in this cause, this court is of the view that the ALJ’s
decision should be affirmed.
In support of remand or reversal, Plaintiff argues that the ALJ failed to properly evaluate
a medical opinion, and solicited vocational testimony based on a hypothetical that did not match
her RFC. Plaintiff argues that remand is necessary for the ALJ to fully consider the medical
findings of a consultative examiner who evaluated Plaintiff during the period when she was
As noted above, the ALJ found that Plaintiff remained disabled from the period of May
29, 2009 through February 27, 2013, but medically improved thereafter and was not disabled
from February 28, 2013 through March 27, 2015 (Tr. 30). The Commissioner has the burden of
showing medical improvement occurred unless an exception applies. 42 U.S.C. § 423(f).
Plaintiff cites to the opinion of consultative examiner David Ringel, D.O. as proof that
she was disabled beyond February 28, 2013. The ALJ held that medical improvement occurred
as of February 28, 2013 because Plaintiff no longer met the requirements of Listing 4.11A
Chronic venous insufficiency (Tr. 24; referring to Tr. 268 (State agency medical opinion finding
Plaintiff met Listing 4.11A)). Treatment notes from late 2012 and early 2013 showed that
Plaintiff no longer faced the extensive brawny edema involving at least two-thirds of her leg as
when she had been found disabled (Tr. 24). Specifically, updated medical findings indicated that
she had a normal gait on examination, and showed no muscle atrophy or deficits in muscle
strength (Tr. 24; referring to Tr. 315, 362-63, 374, 377). Directly rebutting Plaintiff’s claim that
the ALJ did not consider Dr. Ringel’s findings was the ALJ’s mention of Exhibit 7F—Dr.
Ringel’s examination notes—which contained the evidence referred to by the ALJ of Plaintiff
having a normal gait and using no assistive devices (Tr. 24; referring to Tr. 281). Thus not only
did the ALJ consider Dr. Ringel’s findings, but Dr. Ringel’s findings were instrumental in
supporting the ALJ’s conclusion that Plaintiff no longer met or equaled Listing 4.11A, and was
no longer disabled as of February 28, 2013.
Plaintiff notes that some of Dr. Ringel’s findings showed a more significant deterioration
of symptoms than at the previous consultative examination in August of 2009 (Brf. at 6-7;
comparing Tr. 264-66 with Tr. 279-82). However, the range of motion chart from August 2009
shows a limited range of motion throughout Plaintiff’s upper extremities, while the December
2012 chart does not (Compare Tr. 266 with Tr. 282). Also, the ALJ previously relied on the
opinion of State agency medical consultant Mangala Hasanadka, M.D., who opined on
September 8, 2009 that Plaintiff met Listing 4.11A (Tr. 268). Since that time, two new State
agency medical consultants were entered into the record. On February 19, 2013, State agency
medical consultant J. Sands, M.D. found Plaintiff capable of light work, subject to some postural
limitations (Tr. 300-07). State agency medical consultant B. Whitley, M.D. reviewed the file in
June 2013, and agreed (Tr. 338-45). The ALJ cited extensively to those new opinions in finding
both that Plaintiff did not continue to meet or equal Listing 4.11A, and in finding that she could
perform light work (Tr. 26).
To warrant remand and show that a different conclusion would be reached, Plaintiff
would either need to show that she continued to meet or equal Listing 4.11A, or that the ALJ
overlooked some evidence that might have altered her decision. Plaintiff only argues that the ALJ
disregarded the opinion of Dr. Ringel. As noted above, the ALJ cited to Dr. Ringel’s findings in
showing a lack of muscle atrophy or deficits in concluding that she no longer met or equaled any
Listed impairment (Tr. 23); she pointed to Dr. Ringel’s findings in establishing medical
improvement (Tr. 24); she noted that Dr. Ringel’s findings included no evidence of open sores or
ulcerations on Plaintiff’s legs (Tr. 25); and she used Dr. Ringel’s examination to discount
Plaintiff’s claims of an abnormal gait and a need for assistive devices (Tr. 28-29). The ALJ’s
decision includes two direct references to Dr. Ringel (Tr. 25-26), and cites to her records 11
times (Tr. 23, 24, 25, 26, 28, 29).
Plaintiff argues that the ALJ did not spell out the requirements of light work in her RFC
finding. However, it is clear that the ALJ did so in the hypothetical posed to the vocational
expert. The term light work is explicitly defined in the Commissioner’s regulations, and the
parameters outlined by the ALJ to the vocational expert specifically aligned with that definition
(Compare Tr. 50 with Tr. 27). See 20 C.F.R. § 404.1567(b). Thus, there was no error and, in any
event, the Seventh Circuit has held remand unnecessary where a common sense reading of the
ALJ’s analysis makes an RFC finding apparent. Stevenson v. Colvin, 654 F.App’x 848, 852 (7th
Cir. Jul. 15, 2016). Clearly, Plaintiff’s argument would not change the result on remand. Pepper
v. Colvin, 712 F.3d 351, 367 (7th Cir. 2013) (“[W]e will not remand a case for further
specification when we are convinced that the ALJ will reach the same result.”); McKinzey v.
Astrue, 641 F.3d 884, 892 (7th Cir. 2011) (discouraging remand where the Court is convinced
that the ALJ would reach the same result on remand). Accordingly, the ALJ’s decision will be
On the basis of the foregoing, the ALJ’s decision is hereby AFFIRMED.
Entered: August 2, 2017.
s/ William C. Lee
William C. Lee, Judge
United States District Court
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