Marner v. Commissioner of Social Security

Filing 22

OPINION AND ORDER: AFFIRMING the decision of the Commissioner of Social Security. Signed by Judge William C Lee on 1/11/2018. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
AMY SUE MARNER,

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

CIVIL NO. 1:17cv113

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. §1383. 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 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 December 31, 2015.

2.

The claimant has not engaged in substantial gainful activity since June 30, 2012,
the alleged onset date (20 CFR 404.1571 et seq.).

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3.

The claimant has the following severe impairments: lumbar degenerative changes
and lumbago (Ex. B2F, B8F, B13F, B23F); bilateral osteoarthritis of the knees
and hips (Ex. B2F; B3F; B7F); history of carpal tunnel syndrome, status post
release surgery in January 2013 (Ex. B8F; B21F); diabetes (Ex. b3F); asthma (Ex.
B8F; sleep apnea (Ex. B18F); obesity and hyperlipidemia (Ex. B3F, B7F, B11F,
B21F); anxiety and depression (Ex. B1F, B4F, B8F, B10F, B19F(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 sedentary work as
defined in 20 CFR 404.1567(a) except the claimant can perform only occasional
climbing of ramps and stairs, balancing, stooping, kneeling, crouching, and
crawling; never climbing ladders, ropes, or scaffolds; can do frequent handling
and fingering with the bilateral hands; may need a cane for prolonged ambulation;
needs to avoid concentrated exposure to pulmonary irritants (i.e. fumes, odors,
dust, gases, poorly ventilated areas, and chemicals), and hazards (i.e. operational
control of dangerous machinery, unprotected heights, slippery uneven moving
surfaces). Mentally, the claimant cannot understand, remember, or carry out
detailed or complex job instructions, but can perform simple, repetitive tasks on a
sustained basis (meaning eight hours a day, 5 days a week, or an equivalent work
schedule); no sudden or unpredictable workplace changes; cannot perform tasks
requiring intense focused attention for prolonged periods; needs work at a flexible
pace (where the employee is allowed some independence in determining either
the timing of different work activities, or pace of work); only casual superficial
interactions with others, including supervisors, coworkers, and the general public
and only occasional interactions with the general public.

6.

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

7.

The claimant was born on September 18, 1975 and was 36 years old, which is
defined as a younger individual age 18-44, on the alleged disability onset date (20
CFR 404.1563).

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).
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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 June 30, 2012, through the date of this decision (20 CFR 404.1520(g)).

(Tr. 23- 39).
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 September 12, 2017. On October 2, 2017, the
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, 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
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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.
Plaintiff claims an extensive laundry list of ailments, but she seeks remand or reversal on
one issue. Plaintiff claims that the ALJ erred in not incorporating limiting effects related to the
cervical spine and edema impairments into the RFC finding. The Commissioner, however,
argues that Plaintiff has failed to demonstrate that the record supported any actual limitations
related to these conditions.
It is well established that the determinative issue in disability adjudication is the
functional impact of a condition; a mere diagnosis or examination note does not establish the
severity of an impairment. Carradine v. Barnhart, 360 F.3d 751, 754 (7th Cir. 2004) (the issue
“is not the existence of these various conditions . . . but their severity and, concretely, whether . .
. they have caused her such severe pain that she cannot work full time”); Johnson v. Colvin, No.
2:13-CV-138-PRC, 2014 WL 4722529, at *4 (N.D. Ind. Sept. 22, 2014) (“The mere diagnosis of
an impairment does not establish that the impairment affects the individual’s ability to perform
basic work activities.”) (citations omitted). Accordingly, “an impairment or combination of
impairments is not severe if it does not significantly limit [a claimant’s] physical or mental ability
to do basic work activities.” 20 C.F.R. § 404.1521(a). And the RFC, in turn, is the most an
individual can do despite the actual limitations caused by her physical and mental impairments.
20 C.F.R. § 404.1545(a).
The claimant bears the burden of providing evidence establishing both that she has an
impairment that is severe under the regulations and the degree to which her impairments limit her
RFC. 20 C.F.R. §§ 404.1512(a), 1545(a)(3); Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000),

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as amended (Dec. 13, 2000). However, nowhere in the record or testimony does Plaintiff allege
or mention neck pain or difficulty with her cervical spine. Further, no treating source made any
indication or finding regarding the cervical spine other than Dr. Jan on the range of motion
checklist. Though Dr. Jan may have noted some reduction in cervical motion, he did not mention
those findings in his comprehensive report or consider them significant enough to identify them
as a diagnosable impairment or condition (Tr. 522-27). The Commissioner pointed out these
deficiencies in his response brief, yet Plaintiff failed to file a reply, indicating that Plaintiff
acknowledges that she has not met her evidentiary burden.
Likewise, Plaintiff did not allege any issue with edema. In fact, it was Plaintiff’s attorney
who mentioned edema at the ALJ hearing, when he asked about a streak on Plaintiff’s face from
her CPAP strap (Tr. 96-97). Plaintiff testified that the mark was from her CPAP strap; that she
experiences swelling; she takes a water pill once a day; and that she urinates frequently because
she drinks a lot of water because she gets dry mouth from her medications. Id. There are a few
notes in the record concerning lack of edema (Tr. 495, 676, 678, 686, 688, 695, 764-66, 787),
treatment for mild swelling/edema (Tr. 437, 447-50 (bi-level edema that resolves in evening),
809-10 (Weight down 10 pounds…so maybe [medication] not needed; try PRN if needed), 811
(stop Aldactazide…try PRN if needs to resume)), yet Plaintiff fails to identify any record
evidence establishing that these conditions actually imposed functional limitations. It is not
enough to simply infer, as Plaintiff does in her brief , that the conditions must have imposed
limitations. In fact, doing so is entirely improper. See 20 C.F.R. § 404.1520b (“After we review
all of the evidence relevant to your claim . . . , we make findings about what the evidence
shows.”); Carradine, 360 F.3d at 754 (the issue “is not the existence of these various conditions .

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. . but their severity and, concretely, whether . . . they have caused her such severe pain that she
cannot work full time”).
In the present case, the ALJ’s decision contains an extensive discussion of the lengthy
medical record, which included, as the ALJ recognized, numerous distinct medical conditions
(see Tr. 23-38). In synthesizing this lengthy medical record, the ALJ noted several references to
the lack of, or mild, edema on exam in several medical records (Tr. 23-38, 391-96, 435, 497,
522-26, 610, 800-11), but he did not discuss the condition in more detail. Clearly, Plaintiff has
not demonstrated that there was evidence establishing that her edema, which was treated with
medication as needed, or that her cervical spine, which was never alleged or required any
treatment, significantly limited her ability to do basic work activities. Thus, this Court agrees
with the Commissioner that Plaintiff has not demonstrated that either condition was a severe
impairment or that either required any specific limitations in the RFC. See 20 C.F.R. §§
404.1521(a) 404.1545(a). It is well established that the ALJ “need not provide a ‘complete
written evaluation of every piece of testimony and evidence.’” Schmidt v. Barnhart, 395 F.3d
737, 744 (7th Cir. 2005) (quoting Diaz v. Chater, 55 F.3d 300, 308 (7th Cir. 1995)).
Plaintiff has also failed to identify any evidence of functional limitations arising from any
limitation in the cervical spine or from edema. The only mention of the cervical spine was in the
range of motion chart completed by consultative examination by Dr. Jan (Tr. 522-26). The ALJ
thoroughly discussed Dr. Jan’s exam findings that assessed lumbago, depression, anxiety,
asthma, and carpal tunnel syndrome and assigned his opinion great weight as it was consistent
with the exam findings and lack of treatment following carpal tunnel release surgery (Tr. 32,
522-26). Further, the ALJ referred to Dr. Jan’s note regarding Plaintiff self-reported difficulties.

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While she reported difficulties with walking, sitting, standing, and lifting heavy objects, with
limitations in range of motion muscle weakness, and a self-obtained cane (she admitted that she
did not use the cane regularly); Dr. Jan noted that she had normal posture, normal heel/toe
walking, normal tandem walking with the cane, no edema in the extremities, no gross motor
deficits, and, she was not in distress. Id. The ALJ also noted that Dr. Jan, in a supplemental
statement, clarified that no cane was used for gait testing, and that while her grip strength was
decreased, her gross and fine motor skills were within normal limits (Tr. 527).
Additionally, the ALJ discussed in detail each of Plaintiff’s alleged physical and mental
impairments, and repeatedly referred to Plaintiff’s related conditions (Tr. 30-38). For example,
the ALJ referred to Plaintiff’s alleged physical impairments that included “a history of morbid
obesity and related conditions including hyperlipidemia, diabetes, and asthma, that affect and
exacerbate her other conditions” (Tr. 30). The ALJ also noted that Plaintiff has sleep apnea
related to her obesity. Id.
As noted above, the 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.
Social Security Ruling (SSR) 96-5p, 1996 WL 374183, at *5 (S.S.A.). 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); Schmidt v.
Astrue, 496 F.3d 833, 845 (7th Cir. 2007) (providing that an “ALJ is not required to rely entirely
on a particular physician’s opinion or choose between the opinions of any of the claimant’s
physicians” in making her RFC determination).
In the present case, the ALJ considered the totality of the medical, testimonial, and

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opinion evidence (Tr. 23-38). The ALJ determined that despite Plaintiff’s history of multiple
conditions, she had the RFC to perform a range of work at the sedentary exertional level during
the relevant period (Tr. 27-38). The ALJ assessed numerous other postural, manipulative, and
environmental limitations (Tr. 27-38).
The ALJ went through the record and discussed Plaintiff’s complaints, exams, treatments
and findings by treating sources (Tr. 23-38). He discussed her history of morbid obesity,
hyperlipidema, asthma, sleep apnea, rhinitis, diabetes, hyperglycemia, hypothyroid, GERD,
history of carpal tunnel syndrome, osteoarthritis, back pain, knee pain, chest pain, depression and
anxiety. Id. Further, the ALJ discussed all of the opinions in the record including the State
Agency medical experts at the initial and reconsideration levels. Id.
Against the backdrop of this extensive decision, Plaintiff invites the court to infer
limitations that are not supported by medical evidence, and substitute its judgment as to the
severity and limiting effects of Plaintiff’s ailments, for that of the ALJ’s. As the Court is not
permitted to do this, the Court will affirm the ALJ’s decision.
Conclusion
On the basis of the foregoing, the decision of the ALJ is hereby AFFIRMED.

Entered: January 11, 2018.
s/ William C. Lee
William C. Lee, Judge
United States District Court

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