Spicher v. Commissioner of Social Security

Filing 27

OPINION AND ORDER. The decision of the Administrative Law Judge is AFFIRMED. Signed by Judge William C Lee on 9/22/17. (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
SUSAN R. SPICHER,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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CIVIL NO. 1:16cv371

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. §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 met the insured status requirements of the Social Security Act
through December 31, 2008.

2.

The claimant has not engaged in substantial gainful activity since the alleged
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onset date (20 CFR 404.1571 et seq, and 416.971 et seq.)
3.

Since the alleged onset date of disability, August 1, 2003, the claimant has had
the following severe impairments: osteoarthritis due to nonunion of a left femur
fracture, status post removal of rod and insertion of larger rod, plus autologous
bone grafting; degenerative disc disease; chronic obstructive pulmonary disease
(“COPD”); fibromyalgia/chronic pain syndrome; and morbid obesity (20 CFR
404.1520(c) and 416.920(c)).

4.

Since the alleged onset date of disability, August 1, 2003, the claimant has not
had an impairment or combination of impairments that meets or medically equals
the severity of 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 since
August 1, 2003, the claimant has the residual functional capacity to perform
sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) with the
following limitations: she can lift ten pounds occasionally and frequently; can
stand and walk for at least two hours in an eight-hour workday, and requires a
hand-held assistive device to walk for even short distances, but the contralateral
upper extremity can be used to lift and carry; can sit for about six hours in an
eight-hour workday; is limited in the use of her lower extremities, and cannot
work with foot controls; can never climb ladders, ropes or scaffolds; can only
occasionally climb ramps or stairs, balance, stoop, kneel, crouch, and crawl; must
avoid concentrated exposure to extreme cold and heat, wetness, and humidity;
and, must avoid even moderate exposure to fumes, odors, dusts, gases, poor
ventilation, etc., and to hazards such as slick, uneven surfaces and unprotected
heights.

6.

Since August 1, 2003, the claimant has been unable to perform any past relevant
work (20 CFR 404.1565 and 416.965).

7.

Prior to the established disability onset date, the claimant was a younger
individual age 18-49. On September 20, 2012, the claimant’s age category
changed to an individual closely approaching advanced age (20 CFR 404.1563
and 416.963.

8.

The claimant has at least a high school education and is able to communicate in
English (20 CFR 1564 and 416.964).

9.

Although prior to September 20, 2012, 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, as of that date the rules change but any
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skills acquired from past work do not transfer to other occupations (See SSR 9241 and 20 CFR Part 404, Subpart P, Appendix 2).
10.

Prior to September 20, 2012, the date the claimant’s age category changed,
considering the claimant’s age, education, work experience, and residual
functional capacity, there were jobs that existed in significant numbers in the
national economy that the claimant could have performed (20 CFR 404.1569,
404.1569(a), 416.969, and 416.969a).

11.

Beginning on September 20, 2012, the date the claimant’s age category changed,
considering the claimant’s age, education, work experience, and residual
functional capacity, there are no jobs that exist in significant numbers in the
national economy that the claimant could perform (20 CFR 404.1560(c),
404.1566, 416.960(c), and 416.966).

12.

The claimant was not disabled prior to September 20, 2012, but became disabled
on that date and has continued to be disabled through the date of this decision (20
CFR 404.1520(g) and 416.920(g)).

13.

The claimant was not under a disability within the meaning of the Social Security
Act at any time through December 31, 2008, the date last insured (20 CFR
404.315(a) and 404.320(b)).

(TR. 833-847).
On May 28, 2010, Plaintiff filed an application for DIB and SSI, asserting that she was
disabled and had been so since August 1, 2003. On January 19, 2012, a hearing was held. On
May 31, 2012, an ALJ entered a partially favorable decision. On July 13, 2012, Plaintiff
challenged the ALJ’s decision by timely filing a Request for Review of Hearing Decision/Order
with the Appeals Council. On August 27, 2013, the Appeals Council, in its Notice of Appeals
Council Action, denied Plaintiff’s Request for Review. On October 18, 2013, Plaintiff timely
filed a Complaint in this Court. On August 7, 2015, Judge Springmann of this Court entered an
Opinion and Order, reversing and remanding the case for further proceedings.1

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Spicher v. Colvin, 1:13cv304 (N.D. Ind. 2015).
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The Appeals Council then entered an order sending the case back to the same ALJ with
instructions. On May 25, 2016, another hearing was held. On June 24, 2016, the ALJ entered
another partially favorable decision, reaching a result that was substantially similar to one in the
previously vacated decision. On October 21, 2016, Plaintiff timely filed her Complaint in the
case at bar, appealing the June 24, 2016 decision.
Plaintiff filed her opening brief on April 13, 2017 and filed her medical summary on
April 14, 2017. The defendant filed a brief in support of the Commissioner’s decision on July
20, 2017. The Plaintiff has declined to file a reply.
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, 229091 (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 five was the determinative inquiry.
The Plaintiff’s impairments mainly arise from injuries she suffered on June 3, 2004, as the
result of a motor vehicle accident. After this accident, Plaintiff underwent the following
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surgeries and procedures: open reduction and internal fixation of the left femur; multiple
irrigations and debridements of the right femur; left intertrochanteric fracture; left acetabular
fracture; open reduction and internal fixation of left hip; left hip wound infection; left superior
pubic rami fracture; left inferior pubic rami fracture; right ankle open fracture and dislocation;
open reduction and internal fixation of right ankle; multiple irrigations and debridements of right
ankle; left thigh laceration; blunt thoracic injury; and blunt abdominal injury.
From June 25, 2004 through August 23, 2004, Goshen At Home Services provided
hospice care to the Plaintiff that consisted of multiple skilled nursing and physical therapy visits.
On January 12, 2005, Plaintiff’s left femoral shaft exhibited non-union. On January 18,
2005, Plaintiff underwent surgery to replace the intramedullary rod in the femur. On January 26,
2005, Plaintiff’s orthopaedic physician conducted a post-surgery examination, continued her
Vicodin prescription, and noted that Plaintiff ambulated with a walker.
Plaintiff’s chronic leg pain continued, and on June 20 2007, a left femur radiograph
revealed sclerosis of the margin of the bone consistent with non-union. A bone scan also
confirmed the non-union and myosotis ossificans, a soft issue problem. Essentially, four years
after the accident, Plaintiff’s left femur still had not healed properly. Plaintiff underwent an
additional surgery on August 28, 2007, which involved the removal of the intramedullary rod and
the reinsertion of a larger rod with bone grating. On May 21, 2008, Plaintiff had increased pain
with walking and her orthopaedic physician concluded that Plaintiff will likely need additional
surgery with plating and bone grafting.
On July 12, 2008, Plaintiff broke her left elbow and underwent an open reduction and
internal fixation of left humerus. By June 16, 2009, Plaintiff described the pain as occasionally

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stabbing and noted that lifting increased the pain. The orthopaedic physician diagnosed nonunion of the distal humerus.
From 2003 through 2016, Plaintiff, who is 5'1", was morbidly obese. Her weight
fluctuated from 222 pounds to 327 pounds.
As noted, on August 7, 2015, this Court remanded the prior decision. This court held that
there is some evidence to support a closed period of disability, and ordered the ALJ to evaluate
more thoroughly whether there is a closed period of disability at any time since the alleged onset
date of August 1, 2003, especially between June 2007 to June 2009. Also on remand, the ALJ
was to evaluate whether the Plaintiff’s obesity from the alleged onset date through May 30, 2012
further impacted the gravity of the Plaintiff’s alleged disability.
In the present case, the Plaintiff again alleges that the ALJ improperly evaluated obesity.
The Plaintiff acknowledges that the ALJ procured a medical expert, Dr. Haynes, to testify at the
hearing. However, the Plaintiff alleges that the expert failed to offer any independent analysis or
explanation of the relationship between obesity and its impact upon Plaintiff’s other impairments.
Plaintiff argues that even with Dr. Haynes’ opinion, there is not enough information for this court
to make a meaningful review of the ALJ’s decision.
The ALJ noted that Dr. Haynes confirmed that he had reviewed all of the medical
evidence and Dr. Haynes testified that Dr. Strong’s opinion that Plaintiff could perform sedentary
work was well thought out. Dr. Haynes acknowledged the presence of the non-healing leg
fracture and obesity, and he testified that the evidence did not support an increase in physical
limitations from the time of Dr. Strong’s opinion. Dr. Haynes testified that after his careful
review of the medical record, he did not think that Plaintiff met a Listing. Dr. Haynes also

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testified that he agreed with the capacity determined by the State Agency as defined in the
Plaintiff’s RFC. As the ALJ noted, Plaintiff’s counsel did not cross-examine Dr. Haynes with
respect to his opinion of the evidence. Plaintiff’s attorney now argues that the fact that Dr.
Haynes agrees with Dr. Strong adds nothing to the case, yet he does not state any basis on which
Dr. Haynes could disagree with Dr. Strong. Nor did Plaintiff present her own expert on the issue.
This Court finds that the ALJ’s analysis of the impact of Plaintiff’s obesity is sufficient
and provides substantial evidence to support the ALJ’s decision. Arnett v. Astrue, 676 F.3d 586,
593 (7th Cir. 2012); Craft v. Astrue, 539 F.3d 668 (7th Cir. 2008) The ALJ was requested to revisit
the question of whether Plaintiff’s obesity impacted her other impairments sufficiently to render
her disabled prior to May 31, 2012. The ALJ did so, and even obtained the opinion of another
medical expert, Dr. Haynes. This Court finds no error in the ALJ’s evaluation of Plaintiff’s
obesity.
Plaintiff also claims that due process was not followed because, upon remand, the case
was sent back to the same ALJ for a new hearing and a new decision. Plaintiff claims that the
ALJ made a decision in this matter before taking testimony at the hearing. The record is clear
that at the outset of Plaintiff’s hearing on remand, the ALJ noted that she was not bound by her
prior decision but that she would determine that Plaintiff was limited to sedentary work. As this
is the lowest classification for exertional capabilities, it is not surprising that the ALJ would note
at the outset that the classification to sedentary work would not be increased to light, or medium
work. This simply shows the ALJ’s knowledge of the case and does not show any bias.
Moreover, as noted above, the ALJ called in a new medical expert, which shows that the ALJ
was open to considering new evidence and was not simply rubber-stamping the prior decision.

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There is nothing in the record that suggests to the Court that due process was violated in this
case.
Lastly, Plaintiff argues that the RFC is illogical because it states that Plaintiff could
occasionally balance, stoop, kneel, crouch, or crawl, and Plaintiff is obese and uses a cane to
ambulate. However, there is no medical evidence that Plaintiff cannot occasionally do these
things. While it may not be easy for an obese person with a bad leg to kneel or crawl, there is no
evidence that it would be impossible. Additionally, the ALJ’s decision noted that Plaintiff
performed housework at home and also attended to her own activities of daily living, all of which
supports the RFC.
Accordingly, for all the foregoing reasons, the deciaion of the ALJ will be affirmed.
Conclusion
On the basis of the foregoing, the ALJ’s decision is hereby AFFIRMED.

Entered: September 22, 2017.

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

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