Luna v. Commissioner of Social Security

Filing 23

OPINION AND ORDER: The decision of the ALJ is hereby REMANDED for further proceedings consistent with this Opinion. Signed by Judge William C Lee on 5/21/2018. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
DONITA LYNN LUNA,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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CIVIL NO. 1:17cv354

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 Supplemental
Security Income (SSI) 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 SSI 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 has not engaged in substantial gainful activity since April 18, 2014,
the application date (20 CFR 416.971 et seq.).

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2.

The claimant has the following severe impairments: spine disorder, chronic
obstructive pulmonary disease (COPD), schizophrenia and other psychotic
disorders, alcohol and substance addiction disorders, and anxiety disorders (20
CFR 416.920(c)).

3.

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 416.920(d), 416.925 and 416.926).

4.

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 416.967(b) except that the claimant can stand and walk in combination
for up to four hours but can sit for up to six hours in an eight-hour workday. She
should never climb ladders, ropes, or scaffolds; only occasionally climb ramps
and stairs; and only occasionally balance, stoop, kneel, crouch, or crawl. She
should avoid concentrated exposure to extreme heat, cold, and humidity; as well
as fumes, odors, dust, gases, poor ventilation, and other pulmonary irritants. She
should avoid even moderate exposure to hazards such as unguarded machinery
and unprotected heights. The claimant is limited to simple, routine tasks, and
brief and superficial interaction with coworkers and supervisors, but she should
have no work with the general public.

5.

The claimant has no past relevant work (20 CFR 416.965).

6.

The claimant was born on July 18, 1963, and was 50 years old, which is defined
as an individual closing approaching advanced age, on the date the application
was filed (20 CFR 416.963).

7.

The claimant has a limited education and is able to communicate in English (20
CFR 416.964).

8.

Transferability of job skills is not an issue because the claimant does not have past
relevant work (20 CFR 416.968).

9.

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 416.969 and 416.969(a)).

10.

The claimant has not been under a disability, as defined in the Social Security Act,
since April 18, 2014, the date the application was filed (20 CFR 416.920(g)).

(Tr. 12- 20 ).
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Based upon these findings, the ALJ determined that Plaintiff was not entitled to SSI
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 27, 2018. On April 10, 2018, the defendant
filed a memorandum in support of the Commissioner’s decision, to which Plaintiff replied on
April 20, 2018. 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, 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 5 was the determinative inquiry.
Plaintiff was in a car accident in 1999 and has reported back pain ever since (Tr. 774). She
has also been diagnosed with chronic obstructive pulmonary disease (COPD), treating this

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condition with inhalers (Tr.770).
In October 2013, Plaintiff was detained in a psychiatric center after throwing a beer can at
her husband and attempting to set his hair on fire (Tr. 747). In March 2014, Plaintiff was
diagnosed with major depression and posttraumatic stress disorder based on reported marital and
sexual abuse (Tr. 752). That same month, Plaintiff reported pain in her lumbar spine, but she
ambulated normally and had negative straight leg raise tests and good range of motion (Tr. 777).
In May 2014, she had no tenderness, no edema, and good range of motion in all joints (Tr. 797).
Also in May 2014, Plaintiff reported that memory problems had improved since she stopped
treating her pain with street drugs (Tr. 750). In June 2014, Plaintiff underwent a consultative
psychological examination with Dr. Boen, who opined that Plaintiff would not be able to
concentrate or stay on task and would have difficulty getting along with coworkers and with her
boss (Tr. 760-63). In July 2014, Plaintiff underwent consultative examination with internist Dr.
Vemulapalli, who opined she could lift ten pounds and needed to alternate sitting and standing
(Tr. 768-71).
In August 2014, Plaintiff’s therapist described her nerves and moods as managed by
medication (Tr. 819). Also in August 2014, she complained of lower back pain, but she had
normal spinal range of motion, normal ambulation, and good range of motion (Tr. 996). That
same month, State agency psychological consultant Dr. Clark reviewed the evidence of record
and opined that Plaintiff retained the ability to understand, carry out, and remember simple
instructions; could make judgments commensurate with unskilled work; could respond
appropriately to brief supervision, interactions with coworkers, and work situations; and could
deal with changes in a routine work setting (Tr. 80). State agency medical consultant Dr. Eskonen
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opined based on review of the evidence that Plaintiff could perform a reduced range of light work
with alternating sitting and standing (Tr. 76-78).
In November 2014, Plaintiff complained of lower back pain, but she had normal spinal
range of motion, normal ambulation, and good range of motion (Tr. 987). That month, State
agency psychological consultant Dr. Larsen reviewed the evidence and opined that Plaintiff
retained the ability to understand, carry out, and remember simple instructions; could make
judgments commensurate with unskilled work; could respond appropriately to brief supervision,
interactions with coworkers, and work situations; and could deal with changes in a routine work
setting (Tr. 97). State agency medical consultant Dr. Small opined based on review of the record
that Plaintiff could perform a reduced range of light work (Tr. 93-95).
In April 2015, Plaintiff reported doing well, with improved mood, and stated she no
longer needed her psychiatric medications (Tr. 1171). In June 2015, Plaintiff reported walking
thirty minutes every other day (Tr. 1111). That same month, she tested positive for marijuana and
unprescribed benzodiazepines (Tr. 1109). She was referred to a pain management doctor but
terminated that relationship when the doctor did not prescribe Percocet (Tr. 1089).
In October 2015, she complained of lower back pain, but she had normal spinal range of
motion, normal ambulation, and good range of motion (Tr. 1105). Chest x-rays identified
pulmonary hyper-expansion suggestive of COPD (Tr. 1136). In November 2015, Plaintiff walked
with antalgic gait but had normal and symmetric strength (Tr. 1081). Also in November, Plaintiff
returned to counseling, asking for Xanax to be prescribed but not wanting to resume therapy (Tr.
1170). At that time, she had no memory deficits, normal attention and concentration, normal
speech, coherent/logical/goal-directed thought processes, and normal thought content (Tr.1166).
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In December 2015, x-rays showed compression fractures at T5, T6, and T8 and a shallow
compression deformity and a Schmorl’s node at the L4 superior endplate (Tr. 1016-17, 1036-37).
In support of remand, Plaintiff first argues that the ALJ did not adequately account for her
moderate limitations in concentration, persistence, or pace in formulating the RFC and the
hypothetical question to the VE. As noted above, the RFC provides that “The claimant is limited
to simple, routine tasks, and brief and superficial interaction with coworkers and supervisors, but
she should have no work with the general public.”
In response, the Commissioner acknowledges that “the ALJ certainly could have been
clearer in explaining how these limitations accounted for Plaintiff’s limitations in concentration,
persistence, or pace....” However, the Commissioner believes that the ALJ made clear that the
mental aspects of the RFC relied substantially on the opinions of the State agency psychological
consultants, to which the ALJ gave great weight, and the ALJ discounted other mental opinion
evidence.
In Brinley v. Berryhill, No. 17-1706 (7th Cir. May 15, 2018), the Seventh Circuit was
faced with a somewhat similar situation wherein a Plaintiff suffered from moderate mental
difficulties. The Court in Brinley noted the vagueness in the phrase “simple, routine and repetitive
tasks”, and stated that, without elaboration, such a limitation is unhelpful. Likewise, in the present
case, this court is unable to follow the ALJ’s reasoning regarding Plaintiff’s mental limitations to
her supposed ability to perform work such as electrical accessories assembler, small products
assembler, or bakery worker. Thus, a remand is warranted to more fully flesh out the RFC, taking
into specific account Plaintiff’s actual limitations.
Next, Plaintiff argues that the ALJ’s Step 5 finding is not supported by substantial evidence
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because the VE, when asked to describe the methodology used by SkillTRAN, stated that he could
not explain the methodology. As the Commissioner has noted in response, this court has repeatedly
rejected Plaintiff’s argument. The VE explained in his testimony at the hearing that, although he did
not have SkillTRAN’s methodology memorized, the methodology was available online. As there is
no legal requirement that the ALJ or VE explain the methodology used by the SkillTRAN software,
the court will not remand on this point. See Blankenship v. Colvin, 2017 WL 2805883, at *4 (N.D.
Ind. June 29, 2017); Wilhelm v. Berryhill, 2017 WL 5248285, at *7 (N.D. Ind. Nov. 13, 2017).
Conclusion
On the basis of the foregoing, the decision of the ALJ is hereby REMANDED for further
proceedings consistent with this Opinion.

Entered: May 21, 2018.
s/ William C. Lee
William C. Lee, Judge
United States District Court

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