Wilson v. Commissioner of Social Security

Filing 19

OPINION AND ORDER AFFIRMING the decision of the ALJ. Signed by Judge William C Lee on 12/21/2018. (lns)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
LISA D. WILSON,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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CIVIL NO. 1:18cv65

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. 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 met the insured status requirements of the Social Security Act
through December 31, 2006 (Ex. 10D).

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2.

The claimant has not engaged in substantial gainful activity since the alleged onset
date (Ex. 3D, 7D, 8D, 10D, 11D, 12D) (20 CFR 404.1571 et seq., and 416.971 et
seq.).

3.

On and before December 31, 2006, the date the claimant was last insured for
disability insurance benefits, the claimant did not have any severe mental or
physical impairments (20 CFR 404.1522 et seq. and 416.922 et seq.).

4.

Beginning on June 20, 2014, the claimant has had the following severe mental
impairments: depression, anxiety, avoidant and dependent personality disorder,
and somatic symptom disorder (20 CFR 404.1529(c) and 416.920(c)).

5.

Since June 20, 2014, the severity of the claimant’s impairments has met the
criteria of sections 12.07 and 12.08 of 20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 404.1520(d), 404.1525, 416.920(d) and 416.925).

6.

The claimant was not disabled prior to June 20, 2014 (20 CFR 404.1520(c) and
416.920(c)) but became disabled on that date and has continued to be disabled
through the date of this decision (20 CFR 404.1520(d) and 416.920(d)).

(Tr. 25-30).
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 25, 2018. On October 29, 2018, 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:
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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 2 was the determinative inquiry.
Plaintiff was 42 years old as of her date last insured (Tr. 155). She completed college with
bachelors degrees in counseling and applied music (Tr. 60). She worked in the past as a tour
guide and direct mail coordinator (Tr. 364, 461).
In January 2000, K.D. Petersen, M.D., diagnosed Plaintiff with a large myomatous uterus
(Tr. 788). Dr. Petersen conducted an exploratory laparotomy and a multiple myomectomy (Tr.
788). Plaintiff reported having a history of some gastrointestinal dysfunction with irritable bowel
syndrome (Tr. 790). In January 2001, Plaintiff reported heavy vaginal bleeding and feeling dizzy
(Tr. 797).
The record contains limited medical evidence pertaining to the relevant period at issue –
from Plaintiff’s alleged disability onset date (March 31, 2001) through her date last insured (June
30, 2006) (Tr. 27-28). In September 2004, Plaintiff told Edward W. Boyts, M.D., that she had
intermittent abdominal pain (Tr. 500). A diagnostic test revealed no evidence of an obstruction or
a lesion (Tr. 505). Her medication regimen included Zantac, Zoloft, and Bactrim DS (Tr. 500).

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In June 2005, Plaintiff complained of having chest pain on a monthly basis (Tr. 498).
Plaintiff also indicated that she had depression, and she told Dr. Boyts about “traumatic events in
her life” (Tr. 498). On examination, Dr. Boyts noted that Plaintiff was in no apparent distress, and
an EKG was normal (Tr. 498). Dr. Boyts further indicated that Plaintiff was not suicidal, but she
had some “OCD tendencies” (Tr. 498). He opined that she may have bipolar disorder and
suggested changing her medications, but she was “resistant” to doing so (Tr. 498). She believed
that her symptoms were physiological in origin, and that medication would not help (Tr. 498). Dr.
Boyts noted that Plaintiff “picks and chooses what symptoms she thinks are treatable and which
ones are not” (Tr. 498).
In support of remand, Plaintiff argues that the ALJ’s Step 2 finding was not supported by
substantial evidence. Plaintiff claims that the ALJ should have found her impairments severe and
proceeded through the entire five-step analysis.
Plaintiff claims that her doctor diagnosed her depression as chronic and recommended
prescription medication, and that the doctor implied that she did not have adequate insight into
the nature of the depression and thus was resistant to treatment. Plaintiff claims that this is
sufficient explanation for her not obtaining extensive treatment for her depression. Plaintiff also
contends that her depression aggravated her uterine fibroid impairment, and that the combined
impact of her depression and uterine fibroid impairment contributed to her fatigue.
A “severe” impairment is one that “significantly limits [a claimant’s] physical or mental
ability to do basic work activities.” 20 C.F.R. § 404.1520(c). Conversely, 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. § 404.1522(a). A claimant has the burden
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to prove that her impairment is severe. 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 404.1512(a);
Castile v. Astrue, 617 F.3d 923, 926 (7th Cir. 2010) (citation omitted). “The diagnosis of an
impairment does not alone establish its severity and resulting limitations.” Stanley v. Astrue, No.
1:11-CV-000248, 2012 WL 1158630, at *11 n.8 (N.D. Ind. Apr. 6, 2012) (citations omitted); see
also 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).
In the present case, the ALJ considered all of Plaintiff’s alleged impairments – singly and
in combination – but found that they were not “severe” because they did not cause more than
minimal limitations in her ability to perform basic work activities prior to her date last insured
(December 31, 2006) (Tr. 26). In making this finding, the ALJ considered all the relevant
evidence, including Plaintiff’s allegations, statements from her mother, primary care treatment
records, and State agency psychological consultants’ opinions (Tr. 26-28).
As noted, Plaintiff argues that the ALJ should have found her “chronic depression,”
“chronic uterine fibroid issues” and fatigue to be “severe at Step 2” and “proceed[ed] through the
entire 5-Step analysis for the pre-DLI period” (Pl.’s Br at 9, 17). However, as the Commissioner
notes, the vast majority of evidence that Plaintiff cites to in support of her argument post-dates
her date last insured by several years (see Pl.’s Br. at 9).
As the ALJ explained, Plaintiff’s medically determinable impairments could reasonably
have been expected to produce most of the alleged symptoms before December 31, 2006 (Tr. 27).
20 C.F.R. § 404.1529. However, the ALJ found that Plaintiff’s statements concerning the
intensity, persistence, and limiting effects of Plaintiff’s symptoms were not entirely consistent
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with the medical evidence and other evidence of record (Tr. 27). “An ALJ is in the best position
to determine a witness’s truthfulness and forthrightness thus, this court will not overturn an ALJ’s
credibility determination unless it is ‘patently wrong.’” Skarbek v. Barnhart, 390 F.3d 500, 505
(7th Cir. 2004); see also Summers v. Berryhill, 864 F.3d 523, 528 (7th Cir. 2017) (reiterating
“patently wrong” standard).
As the ALJ noted, Plaintiff saw Dr. Boyts for abdominal pain with nausea, vomiting, and
blood in her urine in September 2004, and for chest pain and depression in June 2005 (Tr. 27,
498-500). Additionally, Dr. Peterson treated Plaintiff from the late 1990’s until about 2001 for
complaints of uterine fibroids, heavy/abnormal vaginal bleeding, and irritable bowel syndrome
(Tr. 27, 788-93, 796-808). The ALJ noted that physical examination findings on or before
December 31, 2006, were largely within normal limits, with the exception of an enlarged uterus
(Tr. 28, 790). Further, there is no evidence in the record from the relevant period (March 31,
2001-December 31, 2006), indicating that Plaintiff was treated for a complaint of irritable bowel
symptoms with anything other than Sertraline, Ranitidine, and Metamucil (Tr. 28, 790). The ALJ
also found no evidence that Plaintiff had a severe gynecological problem that significantly limited
her ability to work from March 31, 2001, through December 31, 2006 (Tr. 28). Nor is there
evidence that she experienced severe anemia during that period (Tr. 28). Plaintiff complained of
chest pain in June 2005, but, as the ALJ noted, an EKG was normal, and the record demonstrates
no evidence of a significant cardiovascular problem during the period at issue before her date last
insured (Tr. 28, 498). The ALJ also observed that Plaintiff did not appear to take any medication
on a regular and consistent basis through December 31, 2006, other than Flonase, which appeared
to have controlled her allergy symptoms (Tr. 28).
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With respect to Plaintiff’s alleged mental impairments, the ALJ remarked that the record
contains no evidence that Plaintiff received outpatient treatment from a mental health specialist
(e.g., therapy) or that she was hospitalized on an inpatient basis for any psychiatric reason on or
before December 31, 2006 (Tr. 27). Moreover, Plaintiff denied being suicidal during the relevant
period (Tr. 27-28).
Plaintiff argues that “[t]he ALJ relied upon the level of mental health treatment to support
the conclusion that chronic depression was not severe” (Pl.’s Br. at 16). Plaintiff asserts that the
ALJ should not have done so because she allegedly lacked insight into the impairment and was
resistant to treatment (Pl.’s Br. at 16). The Commissioner acknowledges that the Seventh Circuit
and other courts have stated that “mental illness...may prevent the sufferer from taking her
prescribed medicines or otherwise submitting to treatment.” Kangail v. Barnhart, 454 F.3d 627,
630 (7th Cir. 2006) (emphasis supplied); see White v. Comm'r, 572 F.3d 272, 283 (6th Cir. 2009)
(“For some mental disorders, the very failure to seek treatment is simply another symptom of the
disorder itself.”). But these cases do not establish a per se rule that the mere existence of a mental
impairment constitutes an acceptable reason for not obtaining treatment. A claimant still bears the
burden of proof.
In the present case, the ALJ fully considered Dr. Boyts’s treatment notes, along with the
entirety of the record, but found “no evidence . . . that [Plaintiff] exhibited significantly abnormal
mental status examination findings during the period from March 31, 2001, through December
31, 2006” (Tr. 27-28). A September 2004 treatment note from Dr. Boyts indicates that Plaintiff
was prescribed Zoloft, which, as the ALJ noted, is traditionally used to treat depression (Tr. 27,
500). Less than a year later, in June 2005, Dr. Boyts indicated that Plaintiff was resistant to
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changing her medications, that she had obsessive compulsive tendencies, and apparently lacked
insight into her impairment (Tr. 298).
The ALJ also noted that Plaintiff did not even file for disability benefits until June 20,
2014 (Tr. 27), nearly seven and one-half years after her date last insured and 13 years after her
alleged disability onset date. She also worked as a musician and music instructor prior to her date
last insured (Tr. 27). The ALJ acknowledged that Plaintiff’s earnings did not rise to the level of
substantial gainful activity (Tr. 27). 20 C.F. R. § 404.1520(a)(4)(i); see also 20 C.F.R. §
404.1572. But the ALJ found that this activity, when considered with the other evidence of record
for the period on/before December 31, 2006, supported a finding that Plaintiff did not have any
severe impairments before her date last insured (Tr. 27). It was entirely proper for the ALJ to
consider these factors, among others, when evaluating Plaintiff’s subjective complaints, as it
shows Plaintiff was not as functionally limited as she claimed. Williams–Overstreet v. Astrue, 364
F. App’x 271, 277 (7th Cir. 2010).
Clearly, the ALJ properly applied the special technique required for evaluating mental
impairments. Under this rubric, an impairment is considered not severe when a claimant has mild
or no limitations in understanding, remembering, and applying information; interacting with
others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. 20
C.F.R. § 404.1520a(c)(3). In the present case, the ALJ found no documentation in the record from
the relevant period demonstrating that Plaintiff had any limitation in these functional areas (Tr.
28). The ALJ’s finding in this regard was consistent with the opinion of the State agency
psychological consultants (Tr. 28, 158-61, 187-91). Having found no limitations in any of the four
functional areas, the ALJ appropriately found no severe mental impairment at step two of the
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sequential evaluation (Tr. 28). See 20 C.F.R. § 404.1520a(d).
Although the ALJ concluded that Plaintiff was not disabled prior to her date last insured,
he separately found that she became disabled on June 20, 2014, based on evidence demonstrating
that she met mental impairment listings as of that date (Tr. 29-30). Such evidence, however, is
immaterial to what Plaintiff what must show on this appeal – that she was disabled on or before
December 31, 2006. Shideler v. Astrue, 688 F.3d 306, 311 (7the Cir. 2012) (“[W]hatever
condition the claimant may be in at his hearing, the claimant must establish that he was disabled
before the expiration of his insured status . . . to be eligible for disability insurance benefits.”);
Martinez v. Astrue, 630 F.3d 693, 699 (7th Cir. 2011) (the claimant “had social security disability
coverage only until the end of 2003; if she was not disabled by then, she cannot obtain benefits
even if she is disabled now . . . .”).
This court finds that substantial evidence supports the ALJ’s finding that Plaintiff had no
severe impairment as of December 31, 2006. Thus, the ALJ’s decision will be affirmed.
Conclusion
On the basis of the foregoing, the decision of the ALJ is hereby AFFIRMED.

Entered: December 21, 2018.

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

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