Baldini v. Commissioner of Social Security

Filing 23

OPINION AND ORDER REMANDING the decision of the ALJ for further proceedings consistent with this Opinion. Signed by Judge William C Lee on 8/20/2018. (lns)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
LAURA BALDINI,

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

CIVIL NO. 1:17cv434

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 Social 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 DIB 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 September 30, 2017.

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2.

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

3.

Since the alleged onset date of disability, May 1, 2015, the claimant has had the
following severe impairments: neck pain due to multilevel cervical and thoracic
spine degenerative disc disease (DDD/spondylosis) (Exhibits 8F; 10F; 13F; 14F;
48F); lower back pain due to degenerative changes (Exhibit 45F); history of
cerebral infarct/TIA, with reported ongoing transient cerebral ischemia (Exhibits
19F; 20F; 23F; 24F; 33F; 37F; 42F); history of major depression/bipolar disorder,
anxiety disorder, and possible schizophrenia spectrum/other psychotic disorder
(Exhibits 3F; 4F; 16F; 22F; 43F)(20 CFR 404.1520(c) and 416.920(c)).

4.

Since the alleged onset date of disability, May 1, 2015, the claimant has not had
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, 404.1526, 416.920(d), 416.925 and
416.926).

5.

After careful consideration of the entire record, the undersigned finds that since
May 1, 2015, the claimant has the residual functional capacity to perform light
work as defined in 20 CFR 404.1567(b) and 416.967(b) with further limitations as
follows: Additional limitations include only occasional climbing of ramps and
stairs, balancing, stooping, kneeling, crouching, crawling, but never climbing
ladders, ropes, or scaffolds. Mentally, the claimant’s ability to use judgment in
making work-related decisions is limited to making only simple work-related
decisions with no sudden or unpredictable workplace changes in terms of use of
work tools, work processes, or work settings, and if there are workplace changes,
they are introduced gradually. In addition, the work is limited to that which does
not require satisfaction of strict or rigid production quotas or involve assemblyline pace work with only occasional interactions with the general public.

6.

Since May 1, 2015, 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 an individual
closely approaching advanced age. On February 27, 2017, the claimant’s age
category changed to an individual of 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 404.1564 and 416.964).

9.

Prior to February 27, 2017, transferability of job skills is not material to the
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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. Beginning on February 27, 2017, the
claimant has not been able to transfer job skills to other occupations (See SSR 8241 and 20 CFR Part 404, Subpart P, Appendix 2).
10.

Prior to February 27, 2017, 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 February 27, 2017, 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 February 27, 2017, 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)).

(Tr. 19-30).
Based upon these findings, the ALJ determined that Plaintiff was not entitled to disability
insurance benefits, prior to February 27, 2017. The ALJ’s decision became the final agency
decision when the Appeals Council denied review. This appeal followed.
Plaintiff filed her opening brief on May 8, 2018. On June 18, 2018, the defendant filed a
memorandum in support of the Commissioner’s decision. Plaintiff filed her reply on June 30,
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
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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 born in 1962 and was 53 years old on her alleged onset date. Plaintiff is a
high school graduate and also has an Associate’s Degree. Plaintiff worked for seven years as an
emergency medical technician at a hospital. Plaintiff has not engaged in substantial gainful
activity since her alleged onset date of May 1, 2015. She attempted work in September 2016 as a
deli worker at a local grocery store, but quit after a few days due to aggravation of back pain, and
inability to stand for four hours at a time.
In support of remand, Plaintiff argues that the ALJ erred in not incorporating limitations
from all the medically determinable impairments, both severe and non-severe, into the Residual
Functional Capacity (RFC) assessment, and also erred in not considering the combined impact of
the impairments.
An ALJ must evaluate all relevant evidence when determining an applicant's RFC,
including evidence of impairments that are not severe. 20 C.F.R. § 404.1545(a). The hypothetical

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posed to the VE, as well as the ALJ's RFC assessment, must incorporate all of the claimant's
limitations supported by the medical record. Varga v. Colvin, 794 F. 3d 809, 813 (7th Cir. 2015).
Moreover, an ALJ may not ignore entire lines of evidence. Zurawski v. Halter, 245 F.3d 881, 888
(7th Cir. 2001); Craft v. Astrue, 539 F.3d 668, 676 (7th Cir.2008).
When determining the RFC, the ALJ must consider all medically determinable
impairments, physical and mental, even those that are not considered “severe.” Id. §
404.1545(a)(2), (b), (c). Mental limitations must be part of the RFC assessment, because “[a]
limited ability to carry out certain mental activities, such as limitations in understanding,
remembering, and carrying out instructions, and in responding appropriately to supervision,
coworkers, and work pressures in a work setting, may reduce [a claimant's] ability to do past work
and other work.” Id. § 404.1545(c). Craft v. Astrue, 539 F. 3d. 668, 676 (7th Cir. 2008).
As a general rule, both the hypothetical posed to the VE and the ALJ's RFC assessment
must incorporate all of the claimant's limitations supported by the medical record.
O'Connor-Spinner v. Astrue, 627 F.3d 614, 619 (7th Cir.2010) ("Our cases, taken together,
suggest that the most effective way to ensure that the VE is apprised fully of the claimant's
limitations is to include all of them directly in the hypothetical."); Indoranto v. Barnhart, 374
F.3d 470, 473-74 (7th Cir.2004) ("If the ALJ relies on testimony from a vocational expert, the
hypothetical question he poses to the VE must incorporate all of the claimant's limitations
supported by medical evidence in the record."); see also SSR 96-5p, 1996 WL 374183, at *5
(RFC assessment "is based upon consideration of all relevant evidence in the case record,
including medical evidence and relevant nonmedical evidence"); 20 C.F.R. § 404.1545.
In the present case, Plaintiff contends that the ALJ’s analysis of her mental health
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impairments and omission of supported limitations from the hypothetical and the RFC constitute
error. Plaintiff claims that the ALJ’s hypothetical and RFC do not account for limitations in
concentration, persistence, and pace and that this failure runs contrary to long established case
law as set forth in Yurt v. Colvin, 758 F.3d. 850 (7th Cir. 2014):
[W]e have repeatedly rejected the notion that a hypothetical like the one here
confining the claimant to simple, routine tasks and limited interactions with others
adequately captures temperamental deficiencies and limitations in concentration,
persistence, and pace. See generally Stewart, 561 F.3d at 685 (collecting cases);
see also Craft, 539 F.3d at 677-78 (restricting claimant to unskilled, simple work
does not account for his difficulty with memory, concentration, and mood swings);
Young v. Barnhart, 362 F.3d 995, 1004 (7th Cir.2004); see also SSR 85-15, 1985
WL 56857 at *6 (1985) ("[B]ecause response to the demands of work is highly
individualized, the skill level of a position is not necessarily related to the
difficulty an individual will have in meeting the demands of the job. A claimant's
[mental] condition may make performance of an unskilled job as difficult as an
objectively more demanding job.")
Yurt, supra at 858-859.
In his decision, at Step 3, the ALJ found that Plaintiff had moderate limitations in
concentration, persistence, and pace as well as limitations in applying information, in interacting
with others, and adapting or managing oneself.
Plaintiff acknowledges that her mental limitations may not have been enough to justify a
“listing” finding under the “B” criteria. Plaintiff argues, however, that the ALJ’s decision cannot
be consistent with itself without containing concentration, persistence, and pace limitations in the
RFC. The ALJ limited Plaintiff to simple decisions, gradual work changes, and ordinary
non-production pace. However, Plaintiff contends that this limitation is insufficient under the
Yurt standard to encompass concentration, persistence, and pace factors. Plaintiff’s extensive
mental health history includes bipolar disorder, anxiety, major depression disorder, childhood

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physical abuse, chronic neck and back pain with ordinary postures both standing and sitting, sleep
problems also involving unaccounted-for activity during sleep, and regular “mini-stroke”/TIA or
other consciousness/concentration disturbances which affect her speaking and ability to feel parts
of her body. Plaintiff asserts that these conditions cause deficits in concentration, persistence, and
pace and other mental health functioning deficits.
The ALJ acknowledged that Plaintiff suffered from cognitive/memory loss problems from
alleged TBI and/or TIA-like symptoms/possible neurocognitive disorder, as well as emotional
problems and possible psychotic disorder, which interfered with concentration, persistence and
pace and other mental health functioning factors. Thus, the ALJ assigned a “moderate” gradation
in the “B” criteria analysis for concentration, persistence and pace. However, the ALJ did not
include concentration, persistence and pace limitations in the RFC. This omission constitutes
error.
Plaintiff further claims that the ALJ further erred by not accounting for the extra
supervision someone with Plaintiff’s impairments would require; for the extent to which
Plaintiff’s interactions with neighbors, caseworkers, and others arguably shows she could not
handle any workplace interactions. Plaintiff also asserts that the ALJ’s decision further erred by
not accounting for the quality of Plaintiff’s interaction with others. While the ALJ limits Plaintiff
to occasional interaction with the general public, no limitation is put on the nature and intensity or
quality of her expected work interactions with the general public. Plaintiff claims that her
documented paranoia and other issues would cause problems even with just occasional
interactions with the general public in a workplace. Again, Plaintiff is correct and the ALJ erred
by not including limitations for Plaintiff’s need of supervision and her inability to interact with
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the general public.
Plaintiff also argues that the RFC is also flawed for not taking into account Plaintiff’s
physical restrictions, including as to both upper extremities, her neck and back pain, her left side
dysfunction, and the way her vertebral column and associated pains combine with her permanent
left foot defect to make prolonged standing, walking, and sitting problematic. On remand, the
Agency should specifically address these issues regarding Plaintiff’s physical limitations.
Conclusion
On the basis of the foregoing, the decision of the ALJ is hereby REMANDED for further
proceedings consistent with this Opinion.

Entered: August 20, 2018.

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

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