Schall v. Commissioner of Social Security
OPINION AND ORDER REMANDING this case to the Commissioner of Social Security for proceedings consistent with this Opinion and Order. Signed by Judge William C Lee on 10/18/2016. (lns)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
LARRY D. SCHALL,
CAROLYN COLVIN, Acting
Commissioner of Social Security,
CIVIL NO. 3:15cv544
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. §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:
The claimant last met the insured status requirements of the Social Security Act
on December 31, 2011.
The claimant did not engage in substantial gainful activity during the period from
his alleged onset date of November 5, 2010 through his date last insured of
December 31, 2011 (20 CFR 404.1571 et seq.).
Through the date last insured, the claimant had the following severe impairment:
Parkinson’s disease (20 CFR 404.1520(c)).
Through the date last insured, the claimant did not have an impairment or
combination of impairments that met or medically equaled 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).
After careful consideration of the entire record, I find that, through the date last
insured, the claimant had the residual functional capacity to perform the full range
of medium work as defined in 20 CFR 404.1567(c), specifically lifting and/or
carrying 50 pounds occasionally, 25 pounds frequently; standing and/or walking 6
hours in an 8-hour workday; and sitting 6 hours in an 8-hour workday.
Through the date last insured, the claimant was capable of performing past
relevant work as a warehouse supervisor. This work did not require the
performance of work-related activities precluded by the claimant’s residual
functional capacity (20 CFR 404.1565).
The claimant was not under a disability, as defined in the Social Security Act, at
any time from November 5, 2010, the alleged onset date, through December 31,
2011, the date last insured (20 CFR 404.1520(f)).
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 his opening brief on May 23, 2016 On August 30, 2016, the defendant filed
a memorandum in support of the Commissioner’s decision, and on September 16, 2016, Plaintiff
filed his reply. 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
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
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 four was the determinative inquiry.
Plaintiff protectively filed a Title II application for a period of disability and disability
insurance benefits on July 30, 2012 alleging disability beginning February 29, 2012. (A.R. at
224). The Disability Determination Bureau (DDB) denied the Plaintiff's claims on April 24, 2012.
Id. at 113. Plaintiff requested reconsideration, but was again denied on July 23, 2012. Id. at 114.
Plaintiff filed a request for an administrative hearing on August 2, 2012. Id. On August 23, 2013
and September 20, 2013 Plaintiff appeared via video conference in Elkhart, Indiana before ALJ
Patricia Melvin of the Fort Wayne, Indiana Office of Disability Adjudication and Review
(ODAR). Id. at 78-112 and 36-77. On February 10, 2014, ALJ Melvin issued a partially favorable
decision, finding that Plaintiff was not disabled since his alleged onset date but became disabled
on July 10, 2013 due in part to Parkinson’s disease. Id. at 115-128. Plaintiff filed a request for
review by the Appeals Council of the Office of Disability Adjudication and Review, and the
Appeals Council granted his request for review but issued an unfavorable decision on September
21, 2015. Id. at 6-14. Plaintiff then timely filed a complaint with the United States District Court
for the Northern District of Indiana.
Plaintiff was born on July 7, 1956. Id. at 224. At the time of his filing date, he was 55
years of age. Id. Plaintiff graduated from high school and obtained an associate’s degree in
business administration. Id. at 84. Additionally, he served in the Navy from 1975-1981 and
received machinist and shipboard firefighter training. Id. at 84-85. He has worked as a warehouse
supervisor. Id. 234-237.
The record first documents Plaintiff’s back issues in November of 1993, when he
presented to the emergency room and complained of right scapula and arm numbness following
an episode of trauma. Id. at 311. An MRI of his cervical spine revealed a “moderately large
herniated disc present at C6-C7 on the right indenting the thecal sac and flattening the right side
of the cervical cord.” Id. Dr. P.M. Carney, the attending physician, diagnosed Plaintiff with a
ruptured cervical disc at C6/C7 and performed an anterior cervical microdiscectomy and fusion
C6-C7 with harvesting of left iliac bone graft. Id. at 312-313. Five years later, an MRI of the
lumbar spine revealed a central protrusion of L4-L5 disc with flattening of the left L5 root sleeve
and central protrusion of the L3-L4 disc which minimally indented the thecal sac. Id. at 320. In
August of 2009 when Plaintiff fell down a flight of stairs after he slipped and lost his balance an
X-ray of his abdomen showed fractures of the fifth and sixth ribs. Id. at 329-331. A year later,
Plaintiff had another accident: he dropped a log onto his foot and fractured his fifth metatarsal. Id.
at 338. A doctor at the VA prescribed Plaintiff crutches, but Plaintiff requested a walker. Id. at
Only a few months later, Plaintiff presented to Nurse Heather Boyd of the VA and
complained of bilateral hand tremors and “body twitches” at night while in bed. Id. at 370-371.
He elaborated that the tremors were constant and that his co-workers had noticed them. Id. at 366.
A month later, Plaintiff called the VA and asked for “something to control the shaking for during
the day,” and “wants to know if he has Parkinson’s.” Id. at 362. Dr. Verma diagnosed Plaintiff
with “essential tremors” and prescribed him Primidone 25 mg three times per day. Id. at 361.
On June 7, 2011, Plaintiff returned to Dr. Verma and complained of tremors affecting his
hands and legs “for over a year now.” Id. at 359. He informed Dr. Verma that the tremors started
in his right hand and right leg, but eventually progressed to the left leg as well. Id. He further
informed the neurologist that the tremors were nearly constant, and affected him “even when he is
sitting.” Id. Dr. Verma observed tremors involving both hands, both legs, and mild cogwheeling
on both wrists and elbows. Id. at 360. At a follow-up in August, Plaintiff complained that he had
not noticed any improvement in his symptoms, despite taking his prescriptions as ordered. Id. at
357. Plaintiff complained that the medication made him very tired, and that he could not drive or
write because of the shaking. Id. at 355. Dr. Verma again observed bilateral cogwheeling, and
prescribed Amantadine 100 mg. Id. at 356. In November, Plaintiff called Dr. Verma that his
tremors had worsened in all extremities. Id. at 507. Dr. Verma increased the dosage of his
medication. Id. On February 3, 2012, at a neurology follow-up, Plaintiff informed Nurse Cindy
Lou Kayal that his tremors were “somewhat better.” Dr. Verma observed minimal postural tremor
and right leg tremors while seated. Id. at 505.
In March of 2012, Plaintiff completed a function report with the assistance of his wife. Id.
at 255-263. He reported that his shaking or tremors made it hard to feed himself or shave. Id. at
256. He indicated, “I don’t use the stove much as I forget to turn it off.” Id. at 257. Plaintiff
reported, “I can’t remember a lot of things and using a stove is not an option unless someone goes
behind me to make sure it is turned off.” Id. He explained that he does leave home but
“sometimes I get ‘lost’—cant remember why I am where I am or what I came for.” Id. at 258. He
reported that since his illness his “memory isn’t the same.” Id. at 259. He alleged having
difficulty with lifting, squatting, bending, kneeling, using his hands, memory, concentration, and
completing tasks due to Parkinson’s disease. Id. at 260. Plaintiff stated he does “not usually”
finish what he starts. Id.
On March 26, 2012, Dr. J. Sands, the agency doctor, completed a physical residual
functional capacity assessment, in which he found Plaintiff capable of performing a full range of
medium work because “medication controlling tremors.” Id. at 474-475. Dr. Sands cited the
neurology follow-up from February 3, 2012 and Plaintiff’s statement that his symptoms were
“somewhat better” as evidence that Plaintiff’s medication controlled his tremors. Id. at 475. He
further cited Plaintiff’s neurology appointment from August of 2011 as evidence that he could
perform medium work. Id. The treatment notes from that appointment read “medications working
partially” and “claimant reported tremors calmed with alcohol.” Id. Dr. Sands opined that
Plaintiff’s allegations were “partially credible as severity is not supported by evidence in file.” Id.
at 479. He diagnosed “Tremors, mixed type” rather than Parkinson’s disease. Id. at 474. In April,
2012, agency pyschologist, Dr. Donna Unvershaw completed a review and determined there was
insufficient evidence available to assess the severity of Plaintiff’s memory problems. Id. at 4827
On July 19, 2012, an MRI of the lumbar spine revealed mild narrowing of the disc spaces
from L3 to S1. Id. at 741. On August 1, 2012, Plaintiff’s wife called the VA clinic and
complained that Plaintiff did not sleep and was “doing crazy things.” Id. at 746. A few days later,
Plaintiff and his wife presented to the VA clinic, and she complained that Plaintiff’s mental
capacity was in decline. Id. at 727. Plaintiff complained that he fell in his bathtub and injured his
back a month prior to the visit. Id. at 729. He reported that his back “popped out” often and he
had to spend several days lying down in order to recover. Id. Physical examination revealed
positive straight leg raise, decreased range of motion, and a “lumbar traction” had to be stopped
due to pain. Id. Dr. Paul Kuria, the attendant physician, prescribed Plaintiff a Tens Unit. Id. at
729-730. He indicated that Plaintiff had mild radiculopathy on the right side, secondary to
involvement of the L2/L3L/L4 nerve roots. Id. at 737. 729-730. In September, Plaintiff returned
to Dr. Verma and complained of continued tremors five to six times per week that were
exacerbated by exertion. Id. at 726. Plaintiff’s wife complained that Plaintiff’s memory had
greatly worsened, “wife will tell him to take dishes out and vet will walk outside with them.” Id.
at 727. She further informed Dr. Verma that her husband hit and kicked her in his sleep. Id. Dr.
Verma observed bilateral cogwheeling and opined, “in view of his history of boxing and dealing
with pesticides, the patient would like to keep the possibility of Parkinsonism under
Later that month, Plaintiff presented to Dr. Beth Wittington for a neurology consultation
and second opinion. Id. at 663. Plaintiff complained of back pain, perpetual tremors in his arms
and legs, “sloppy writing,” and memory loss. Id. He informed Dr. Whittington that, while he felt
that the medication helped, “the tremor is never gone.” In regard to memory loss, he explained
that he often left the water running and had set his stove on fire when he left it on. Id. His wife
told Dr. Whittington that she noticed a vocal tremor as well. Id. Dr. Whittington observed tremor
with outstretched arms and finger-to-nose bilaterally, head titubation, vocal tremor, and guarded
and wide gait due to back pain. Id. Dr. Whittington recommended prosthetic consult for a cane
“due to his back pain,” increased Primidone to 50 mg, ordered neuropsychological testing, sleep
study, and HCT. Id. at 666. A few days later, Plaintiff received a prescription for a cane and
lumbar support brace due to a gait abnormality from back pain. Id. at 658, 718.
In October, Plaintiff presented to the VA clinic for a neuropsychology consult. Id. at 713.
A psychology student intern, John M. McConnell, conducted the exam under the supervision of
neuropsychologist, Dr. Javan Horwitz. Id. at 715. The initial neobehavioral evaluation revealed
primary tremor in upper and motor extremities, visuospatial functioning impairment, impaired
immediate memory, consolidation, spontaneous retrieval, recognition, reasoning, problemsolving, judgment, and insight. Id. at 713. Dr. Horwitz diagnosed Plaintiff with end-stage
Wernicke-Korsakoff syndrome, and cited significant impairments in memory consolidation,
recall, recognition, and autobiographical memory impairment. Id. at 714. Dr. Horwitz noted that
Plaintiff’s prognosis was poor; that he did not possess capacity to manage his own affairs or hold
a job; and that he should be placed in 24/7 supervised care because he was at significant risk for
harming himself or others. Id.
In November of 2012, the VA granted Plaintiff 30% service-connected disability benefits
for his back. Id. at 749. On December 17th, Plaintiff again presented to Dr. Verma and reported
that while his tremors had largely been calm and under control, there were “persistent and at a
much lower intensity.” Id. at 705. Dr. Verma observed mild postural tremor, mild right leg tremor
while sitting, and mildly unsteady walk. Id. at 706. He noted that “Dr. Horwitz’s consultation
note was reviewed with patient. He has diagnosed him with Wernicke’s encephalopathy due to
chronic alcoholism.” Id. He diagnosed Plaintiff with baseline essential tremor, superimposed
Parkinsonism, restless leg syndrome and REM behavioral sleep disorder, and history of back pain
and hyperlipidemia. Id. In May of 2013, Plaintiff presented to Dr. Verma and reported that his
tremors were under good control, but that he still had some imbalance. Id. at 691. Dr. Verma
observed mildly unsteady gait, and instructed Plaintiff to “taper off” Ropinrole and Amantadine.
Id. One month later, Plaintiff’s wife called Dr. Verma and reported that Plaintiff’s tremors had
become “very exaggerated” since he tapered off his medication. Id. at 692. Dr. Verma instructed
her to have Plaintiff restart his medication. Id.
On August 23, 2013, Plaintiff attended an administrative hearing via teleconference in
Elkhart, Indiana before ALJ Patricia Melvin of the Fort Wayne, Indiana Office of Disability
Adjudication and Review (ODAR). Id. at 81. Plaintiff testified that he had experienced significant
weight loss and attributed that to his pain medication, “everything tastes – I don’t eat like I, you
know, normally would eat.” Id. at 83. He further testified that he lived with his disabled wife and
autistic grandson, both of whom received disability benefits. Id. at 85. Additionally, Plaintiff
informed the ALJ that he last worked in February of 2010 as a warehouse supervisor. Id. at 86.
He explained that he did not lift or carry anything in that job because his employer was aware that
he could not, “They didn’t allow me to do any of that because I was – that was something I
brought up front when I first started. So they wouldn’t allow me to go inside any of the trucks or
anything like that.” Id. Further, Plaintiff’s employer laid him off after they hired him an assistant
to help him with lifting. Id. at 87. He testified that he was also terminated from his previous job
of seven years, because he missed work due to back pain. Id. at 91.
Next, Plaintiff testified that he began to experience symptoms of Parkinson’s disease at
his job in 2009 and 2010:
I couldn’t write, I couldn’t do anything with my hands or anything because I – if
my boss seen me, I would have lost my job for sure. So I was, like, I had this
friend of mine, just had him fill in my paperwork at the end of the day for me so I
didn’t have to, so she wouldn’t see it.
Id. at 92. He elaborated that a neurological report confirmed that he had Parkinson’s at that time,
but he sought a second opinion. Id. The second doctor “tapered” Plaintiff off his Parkinson’s
medication to see whether it was the cause of his tremors, “When they tapered me down off the
Parkinson’s disease medication, then the tremors got really bad. They got real bad again.” Id. at
93. When asked if his medications were effective, Plaintiff testified that they did not prevent him
from shaking when active:
[I]t’s always like that. I used to be I could settle down and then make it go away,
but it doesn’t want to go away. . . .It doesn’t prevent me from the shaking; it
doesn’t – I’m on my medicine right now. We have a computer at home. I barely
use it because I can’t hold the mouse still enough to get that little arrow to click on
Id. at 95-96. Plaintiff further informed the ALJ that “a couple of beers would settle down
tremors,” and that he had stopped drinking caffeinated beverages and smoking cigarettes in order
to stop his tremors but that it had not helped. Id. at 96-97. When asked why he could not work,
Plaintiff responded, “I just can’t work. I can’t think. I guess I don’t know what I’m doing
sometimes.” Id. at 98. Plaintiff testified that he did not remember precise dates, but that he began
to experience cognitive issues around 2011, and that his neurologist told him he was “slow.” Id.
at 98. When asked how his cognitive issues affected his ability to work, Plaintiff responded:
I can’t concentrate at all. I can’t remember what I did a couple of minutes ago, or
30 minutes ago, or five minutes ago. I’m dangerous. I mean, at home, I put a
skillet on the stove and I’ll, like, ask my wife if she wants a couple of eggs or
something. I’ll forget it. I forget I even did it. I’ll walk away from it. I set the stove
on fire four or five times. I run the kitchen sink over all the time because I might
do the dishes and I’ll turn the water on. But a few minutes after I walk away from
doing it, I forget I turned the water on. It’s all the time. It’s all the time. It’s a daily
basis thing. That’s why I keep talking to my doctor. . . .I’m supposed to have
somebody with me all the time, but I have a tendency to wander off.
Id. at 98-99. He further informed the ALJ that his doctor prescribed him Thiamine for his
cognitive and memory issues, but that “it doesn’t do any good.” Id. at 99. Plaintiff then testified
that degenerative disc disease in his back prevented him from sitting, standing, and walking for
prolonged periods of time, “I have three or four coolers out in the backyard. So I can walk so far
in my back yard, and I sit down on a cooler. I rest a little bit, and then I get up and I walk over to
the next cooler.” Id. at 100-101. He rated his pain at a 5-6/10 and informed the ALJ that he wore
women’s corsets for relief because back braces did not work for him. Id. at 102-103. He stated
that the pain radiated into his legs five to six times per year and lasted for about an hour every
time. Id. at 103. He further informed that neither physical therapy nor narcotic pain medication
had significantly helped his pain, but that his TENS unit provided some relief from “sharp pain.”
Id. at 104-105. Plaintiff also complained of dizzy spells and monthly falls. Id. at 110.
Due to a technical difficulty that resulted in the deletion of the rest of the initial hearing,
Plaintiff had to reappear for hearing on September 20, 2013. Id. at 36. He did so from Elkhart,
Indiana via teleconference before ALJ Melvin of the Fort Wayne Office of Disability
Adjudication and Review (ODAR). Id. Plaintiff began the new hearing by testifying that he
occasionally watched television and movies; occasionally went to the store; used a shower chair
to bathe; and often needed the assistance of his wife or a “grabber” to help him get dressed. Id. at
42. He told the ALJ that he would occasionally drive a few blocks to “pick up odds and ends” for
his wife, and that he sometimes forgot where he was going in the middle of a trip. Id. at 43.
Additionally, Plaintiff informed the ALJ that he assisted his wife with household chores like
vacuuming and making their bed, but that his grandson moved in with them to assist them and did
90 percent of the daily chores. Id. at 44. He further stated that he took two naps per day due to
side effects of his pain medication, and that his doctor prescribed him a walker, cane, and
crutches for daily use. Id. at 47 and 48. Finally, Plaintiff stated that he attempted to clean the
gutters on his house and fell off the roof a few months prior to the hearing. Id. at 49.
After Plaintiff concluded his testimony, his wife testified. Id. at 63. Plaintiff’s wife
testified that his tremors had started three to four years prior to the hearing. Id. at 64. She testified
that plaintiff had difficulty shaving and eating:
Well, he has good days, he has bad days. But when he has the good days, he still
shakes. But when he the really bad days, then when he goes to put food in his
mouth, there’s not usually food in his spoon or his fork when he gets it to his
mouth. And then he has to – it takes him a while to eat.
Id. at 65. She informed Plaintiff’s attorney that Plaintiff got lost when running errands for her,
and often had to leave her vehicle in the parking lot at the store because he could not find it after
he finished shopping. Id. She further stated that she was Plaintiff’s power of attorney because of
his memory issues, and that he needed 24/7 supervision because “he can harm himself. Just, like,
getting lost and getting in other people’s cars that he doesn’t know.” Id. at 67-68. Finally,
Plaintiff’s wife testified that her husband’s fall from his roof had occurred when she fell asleep
and was not watching him. Id.
At the conclusion of Plaintiff’s wife’s testimony, the ALJ called a vocational expert to
testify. Id. at 72. The VE characterized Plaintiff’s past jobs as “warehouse supervisor.” Id. at 73.
The ALJ then asked him to consider a hypothetical individual of Plaintiff’s age, education, and
work experience who could lift up to 50 pounds occasionally, lift or carry up to 25 pounds
frequently; stand or walk for approximately six of eight hours, and sit for approximately six of
eight hours, with normal breaks. Id. The vocational expert testified that such an individual could
perform Plaintiff’s past work. Id. Next, the ALJ limited her second hypothetical individual to
sedentary work with the ability to lift up to ten pounds occasionally; limited pushing and pulling
ability with the right upper extremity to occasional; limited right overhead reaching to occasional;
and stipulated that the individual would require an assistive device when standing and for
ambulation. Id. at 73-74. The VE testified that the hypothetical individual would not be able to
perform any work in the national economy. Id. at 74.
As noted above, on February 10, 2014, the ALJ issued an unfavorable decision. Id. at 119130. At step two, the ALJ concluded that Plaintiff suffers from Parkinson’s disease. Id. at 121. At
step three, the ALJ determined that Plaintiff does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the Commissioner’s listed
impairments. Id. at 123. The ALJ concluded Plaintiff could perform a full range of medium work
with no manipulative or mental limitations from his alleged onset date until his established onset
date, or July 10, 2013. Id. at 123-124. Thereafter, he was limited to a full range of sedentary work.
Id. at 126. The ALJ determined that Plaintiff was capable of performing his past relevant work as
a warehouse supervisor prior to July 10, 2013, but was unable to perform such work and was
disabled under the medical vocational guidelines for the period following such date. Id. at 12714
On September 21, 2015, the Appeals Council issued an order granting the Plaintiff’s
request for review. Id. at 9-11. The Appeals Council found that the ALJ “no longer had
jurisdiction” to issue her March 11, 2014 unfavorable determination and vacated that decision. Id.
at 9-10. The Appeals Council adopted the ALJ’s statements from her February 10, 2013 decision
concerning the issues in the case and evidentiary facts “except as otherwise provided,” and found
that the claimant “was not disabled at any time from his alleged onset date of November 5, 2010
through his date last insured of December 31, 2011.” Id. The Appeals Council invoked the fact
that “the claimant’s disability reports did not allege any mental impairments and two State
Agency psychological consultants opined that there was insufficient evidence to support a mental
impairment prior to the claimant’s date last insured.” Id. at 10. The Appeals Council added that
the Plaintiff’s diagnosis of Wenicke-Korsakoff disease as “conducted by a psychology student
intern,” and therefore found that this was “not a medically determinable impairment.” Id. It
reasoned that the October 2012 evaluation “occurred after the claimant’s date last insured,” and
found “no evidence that the claimant’s Parkinson’s disease caused mental limitations during the
period at issue.” Id. at 11.
In support of remand or reversal, Plaintiff first argues that the finding that his Parkinson
syndrome or combined impairments did not meet or equal the criteria of Listing 11.06 or 12.02 on
or before his date last insured is not supported by substantial evidence and the relevant legal
standards. At step three in the disability analysis, the ALJ is required to determine whether the
claimant meets or equals any of the listed impairments found in the Listing of Impairments, found
in 20 C.F.R. Pt. 404, Subpt. P, Appendix 1. Barnett v. Barnhart, 381 F.3d 664, 670 (7th Cir.
2004); 20 C.F.R. § 404.1520(a)(4)(iii). For each listed impairment, there are objective medical
findings and other specific requirements that must be met to satisfy the criteria of that Listing. 20
C.F.R. §§ 404.1525(c)(2)-(3), 416.925(c)(2)-(3). When a claimant satisfies the criteria to meet a
listed impairment, that person is deemed disabled and is automatically entitled to benefits.
Barnett, 381 F.3d at 668; 20 C.F.R. §§ 404.1525(a), 416.925(a); 404.1525(c)(3), 416.925(c)(3). A
claimant may also demonstrate presumptive disability by showing his impairment is accompanied
by symptoms that are equivalent in severity to those contemplated by a specific Listing. Barnett,
381 F.3d at 668; 20 C.F.R. §§ 404.1525(c)(5), 416.925(c)(5); 404.1526; 416.926.
In the present case, Plaintiff argues that the Commissioner first erred by offering an
unsupported and unreviewable analysis of whether Plaintiff’s well-documented tremors met the
criteria of Listing 11.06 on or before his date last insured. A claimant is entitled to a finding of
disability if he establishes evidence of “Parkinsonian syndrome with the following signs:
Significant rigidity, bradykinesia, or tremor in two extremities, which, singly or in combination,
result in sustained disturbance of gross and dexterous movements, or gait and station.” 20 C.F.R.
Pt. 404, Subpt. P, Appendix 1 § 11.06. The ALJ here simply wrote that the record “does not
demonstrate Parkinson’s disease with the following signs: significant rigidity, bradykinesia, or
tremor in two extremities, which, singly or in combination, result in sustained disturbance of
gross and dexterous movements, or gait and station.” (A.R. at 124)
Plaintiff contends that the ALJ’s analysis, which the Appeals Council incorporated into its
decision, provides no insight into how the agency concluded that Plaintiff’s tremors did not
satisfy the criteria of Listing 11.06 on or before his date last insured. Id. at 124, 9-11. Plaintiff
points out that the ALJ did not address the evidence showing that the Plaintiff presented in June
of 2011 with complaints that he “has noticed tremors in both of his hands, even while he is sitting
and the hand is resting on the arm of the chair.” Id. at 359. The ALJ did not discuss the
examiner’s observation of an “obvious” tremor in the right lower extremity as well as mild
cogwheeling in both wrists and elbows and “[t]remors involving both hands are noted, right
worse than left, postural more than resting.” Id. at 360. The ALJ also did not discuss how he
reported in August of 2011 that “[h]e is not able to write also because of the tremors,” or that Dr.
Verma observed mild cogwheeling bilaterally. Id. at 355-356. The ALJ also did not discuss how
Plaintiff reported suffering from difficulty using his hands due to these tremors. Id. at 260.
Clearly, the ALJ’s finding that the Plaintiff’s bilateral hand tremors did not produce a sustained
disturbance of his ability to perform gross and dexterous movements on or before his date last
insured is “peculiar and unexplained.” Kastner v. Astrue, 697 F.3d 642, 646-648 (7th Cir. 2012).
By failing to “evaluate any of the evidence that potentially supported [Plaintiff’s] claim” so as to
permit meaningful review of her unfavorable finding, the ALJ committed legal error. Ribaudo v.
Barnhart, 458 F.3d 580, 584 (7th Cir. 2006). Thus, remand is appropriate so that these issues may
be properly discussed.
Plaintiff further claims that the ALJ further erred by offering no discussion of whether
Plaintiff’s combined mental impairments met or equaled Listing 12.02 on or before his date last
insured, which presumes disability for “[p]sychological or behavioral abnormalities associated
with a dysfunction of the brain” and the “presence of a specific organic factor judged to be
etiologically related to the abnormal mental state and loss of previously acquired functional
abilities.” 20 C.F.R. Pt. 404, Subpt. P, Appendix 1 § 12.02. This listing is satisfied with evidence
of “a loss of specific cognitive abilities or affective changes,” memory impairment, and marked
limitations in two of the following domains: activities of daily living, social functioning, or
maintaining concentration, persistence, and pace. Id. The record shows that Plaintiff was
diagnosed with end-stage Wernicke-Korsakoff syndrome in October of 2012, and exhibited
significant impairments in memory consolidation, recall, recognition, and autobiographical
memory impairment (A.R. at 714) Dr. Horwitz noted that Plaintiff’s prognosis was poor; that he
did not possess capacity to manage his own affairs or hold a job; and that he should be placed in
24/7 supervised care because he was at significant risk for harming himself or others. Id. The ALJ
here did not discuss Listing 12.02. Id. at 123-124. The ALJ erroneously concluded that “the first
documentation of memory problems in the medical record is in August 2013,” and that the
Plaintiff “has no limitation in daily activities due to his mental impairment.” Id. at 122. For this
additional reason, remand is warranted.
Moreover, the ALJ committed error by failing to obtain a reliable medical opinion before
concluding Plaintiff’s Parkinson’s disease or combined impairments did not equal the criteria of
Listings 11.06 or Listing 12.02 on or before his date last insured. Whether a claimant meets or
equals a listing is a medical judgment, and an ALJ must consider an expert’s opinion on the issue.
Barnett, 381 F.3d at 670 (citing 20 C.F.R. § 404.1526(b)). SSR 96-6p provides that an ALJ “must
obtain an updated medical opinion” when she determines either “the symptoms, signs, and
laboratory findings reported in the case record suggest that a judgment of equivalence may be
reasonable” or when “additional medical evidence is received that . . . may change the State
agency medical or psychological consultant’s finding” regarding equivalence. In the present case,
the record does not contain a reliable medical opinion regarding whether the Plaintiff’s
Parkinson’s disease or mental impairments medically equaled Listings 11.06 or 12.02.
Plaintiff also points out that the Appeals Council improperly found that Plaintiff did not
suffer from a medically determinable impairment of Wernicke-Korsakoff syndrome on or before
his date last insured, and the Commissioner improperly rejected Plaintiff’s allegations of mental
limitations before December 31, 2011. Although this Court should not reweigh the evidence or
substitute its judgment for that of the agency's, Shideler v. Astrue, 688 F.3d 306, 310 (7th Cir.
2012), "this does not mean that [it] will simply rubber-stamp the Commissioner's decision
without a critical review of the evidence." Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000). In
rendering a decision, the agency is not required to provide a complete and written evaluation of
every piece of testimony and evidence, but "must 'build a logical bridge from the evidence to his
conclusion.'" Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005); Roddy v. Astrue, 705 F.3d
631, 636 (7th Cir. 2013).
In the present case, the Appeals Council reasoned that “the claimant’s disability reports
did not allege any mental impairment,” the state agency psychological consultants felt there was
insufficient evidence to evaluate Plaintiff’s mental limitations, and the assessment leading to this
diagnosis “was conducted by a psychology student intern, not an acceptable medical source.”
(A.R. at 10) Plaintiff contends that none of these rationales provide the logical bridge to support
the Commissioner’s finding that Plaintiff had no mental limitations as of his date last insured in
December, 2011. The Commissioner also ignored how Plaintiff did report mental limitations
during interactions with the agency in both March and August of 2012.
Additionally, the Appeals Council erroneously found that Plaintiff was diagnosed as
having Wernicke-Korsakoff syndrome by a psychology intern who was not an acceptable medical
source. (A.R. at 10) "A physical or mental impairment must be established by medical evidence
consisting of signs, symptoms, and laboratory findings, not only by [the claimant's] statement of
symptoms." 20 C.F.R. § 404.1508; see also, SSR 96-3p (recognizing that symptoms will not be
found to affect an individual's ability to do basic work activities unless the individual first
establishes by objective medical evidence, i.e., signs and laboratory findings, that he has a
medically determinable physical or mental impairment that could reasonably be expected to
produce the alleged symptoms). The record here shows that a psychology student intern, John M.
McConnell, conducted a neuropsychology evaluation under the supervision of neuropsychologist,
Dr. Javan Horwitz. Id. at 715. Dr. Horwitz counter-signed McConnell’s evaluation report. Id.
Thus, another treating physician later documented that “Dr. Horwitz’ consultation note was
reviewed with patient. He has diagnosed him with Wernicke’s encephalopathy due to chronic
alcoholism.” Id. at 706. Clearly, the Appeals Council’s finding that the Plaintiff’s diagnosis of
Wernicke-Korsakoff syndrome was not made by an acceptable medical source is not supported by
the record, and requires a remand.
Plaintiff further asserts that the Appeals Council improperly discounted the October 2012
evaluation and diagnosis of Wernicke-Korsakoff syndrome on the basis that it occurred after the
Plaintiff’s date last insured. (A.R. at 11) The Seventh Circuit has expressly held that evidence
created after a date last insured is relevant to a claimant’s conditions and limitations before such
date. Parker v. Astrue, 597 F.3d 920, 925 (7th Cir. 2010). Finding error where an ALJ
disregarded evidence created after a date last insured, the court wrote:
The administrative law judge should either have determined whether the plaintiff's
ailments are at present totally disabling, and, if so, have retained a medical expert
to estimate how grave her condition was in March 2004, the last date before her
coverage expired; or the judge should have determined directly whether the
plaintiff was totally disabled by then--but in making that determination he must (as
under the first approach) consider all relevant evidence, including the evidence
regarding the plaintiff's condition at present.
Nary Kheng v. Astrue, 2010 U.S. App. LEXIS 9727 at **1-2 (7th Cir. 2010)(emphasis in
original) (internal citations omitted). The Commissioner’s explicit disregard of medical evidence
establishing the Plaintiff’s significant memory problems due to Wernicke-Korsakoff syndrome
and/or Parkinson’s disease is therefore grounded in a legal error. In light of the Appeals Council’s
own recognition that the state agency psychologist did not have enough evidence to evaluate the
Plaintiff’s mental limitations prior to his date last insured during April and July of 2012, the
Commissioner should have obtained a reliable medical opinion on when the Plaintiff’s mental
functioning began to deteriorate.
Next, Plaintiff argues that the ALJ improperly rejected the Plaintiff’s allegations of
cognitive problems which began to worsen during the second half of 2011. A court should not
disturb the weighing of credibility so long as the determinations are not “patently wrong.”
Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir.2000); Prochaska v. Barnhart, 454 F.3d 731, 738
(7th Cir.2006) (citing Carradine v. Barnhart, 360 F.3d 751, 753 (7th Cir.2004)). However, an
ALJ does not possess unlimited discretion to reject a claimant’s testimony. When the credibility
determination rests on “objective factors or fundamental implausibilities rather than subjective
considerations [such as a claimant's demeanor], appellate courts have greater freedom to review
the ALJ's decision.” Clifford, 227 F.3d at 872. A court may reverse or remand a credibility
determination if it finds that the rationale provided is “unreasonable or unsupported.” Prochaska,
454 F.3d at 738 (citing Sims v. Barnhart, 442 F.3d 536, 538 (7th Cir.2006)).
In the present case, the Plaintiff testified that he began to experience cognitive issues
during the end of 2011 when “the shaking tremors started.” (A.R. at 98 (“But somewhere in the
midst of the end of that year or something like that.”)) The Commissioner discounted the
Plaintiff’s allegations on the grounds that his disability reports “did not allege any mental
impairment.” Id. at 10. The Appeals Council specifically cited reports which were completed on
March 2nd, June 27th, and August 3rd. Id. at 10, 248-250,279-282, 286-290.
The Commissioner’s decision to reject the Plaintiff’s allegations of mental limitations
prior to his date last insured is patently wrong for several reasons. First, the Appeals Council
ignored that in one of those disability reports, the Plaintiff did in fact report, “Sometimes I forget
where I am going” and indicated this represented no change in his ability to complete daily
activities. Id. at 289. The Appeals Council also ignored how on March 14, 2012, shortly after he
completed the first disability report, Plaintiff and his wife completed a Function Report. Id. at
255-263. In it he indicated, “I don’t use the stove much as I forget to turn it off.” Id. at 257.
Plaintiff reported, “I can’t remember a lot of things and using a stove is not an option unless
someone goes behind me to make sure it is turned off.” Id. He explained that “sometimes I get
‘lost’—cant remember why I am where I am or what I came for.” Id. at 258. He reported that
since his illness his “memory isn’t the same.” Id. at 259. He alleged having difficulty with
memory, concentration, and completing tasks due to Parkinson’s disease. Id. at 260. Plaintiff
indicated he does “not usually” finish what he starts. Id. The Appeals Council’s apparent
conclusion that Plaintiff did not initially report suffering from any mental limitations when he
filed his claim for benefits is therefore not borne out by the record as a whole. The Commissioner
is not entitled to simply select evidence favoring her conclusions, but must “confront evidence
that does not support his conclusion and explain why it was rejected.” Kasarsky v. Barnhart, 335
F.3d 539, 543 (7th Cir. 2002). Thus, for this additional reason, remand is appropriate.
Moreover, the Appeals Council made profound logical flaws when rejecting the Plaintiff’s
mental allegations. Although he did not list a mental diagnosis in his initial disability report, he
listed Parkinson’s disease, which is itself known to cause some cognitive problems. Id. at 249.
Plaintiff also did not know he suffered from Wernicke-Korsakoff syndrome until October of
2012, and it is not surprising that he would fail to list such a diagnosis on a report he completed in
March of that year. Id. Finally, the Appeals Council unreasonably discounted allegations of severe
memory problems on the grounds that the Plaintiff failed to mention such problems when
completing his disability report, quite possibly due to his poor memory. As noted above, the
record provides contemporaneous documentation that Plaintiff was having such difficulties at
least as early as March, 2012. Id. at 255-263. The Commissioner’s decision to reject the
Plaintiff’s allegations of worsening cognitive problems during the second half of 2011 is therefore
“patently wrong” and warrants remand. Clifford, 227 F.3d at 872.
Next, Plaintiff argues that the ALJ’s finding that the Plaintiff could sustain the exertional
demands medium work without any manipulative limitations on or before his date last insured is
not supported by substantial evidence and the relevant legal standards.
The ALJ first erred by ignoring a line of evidence showing the Plaintiff’s deterioration
prior to his date last insured. While an ALJ need not mention every piece of evidence in record,
he must generally show that he considered evidence strongly supporting disability and enable a
reviewing court to trace his reasoning for rejecting it. Denton v. Astrue, 596 F.3d 419, 425 (7th
Cir. 2010) (citing Myles v. Astrue, 582 F.3d 672, 678 (7th Cir.2009)). The ALJ noted that in June
2011 medication was helping with Plaintiff’s tremors and his gait was normal, his extremities had
full strength in August of 2011, and by February of 2012 his tremors were “under adequate
control.” (A.R. at 125) But the ALJ ignored a line of objective evidence showing his deteriorating
physical abilities throughout the second half of 2011. At his June 2011 examination, for example,
Plaintiff reported that his tremors were now nearly constant, and affected him “even when he is
sitting.” Id. at 359. Dr. Verma observed tremors involving both hands, both legs, and mild
cogwheeling in both wrists and elbows. Id. at 360. At a follow-up in August, Plaintiff complained
that he had not noticed any improvement in his symptoms, despite taking his prescriptions as
ordered. Id. at 357. Plaintiff complained that the medication made him very tired, and that he
could not drive or write because of the shaking. Id. at 355. Dr. Verma again observed bilateral
tremors and cogwheeling before adding another medication to his regimen. Id. at 355-356. In
November, Plaintiff called Dr. Verma that his tremors had worsened in all extremities. Id. at 507.
Dr. Verma increased the dosage of his medication. Id. at 508.
Plaintiff does not dispute that after this medication adjustment, his tremors improved
somewhat after his date last insured. But because the ALJ failed to adequately consider how
severely his tremors were affecting his functioning during the second half of 2011, when he was
required to establish that his disability began, the ALJ did not build a logical bridge which
enables meaningful review of her finding that he could sustain the exertional demands of medium
work without any manipulative limitations on or before his date last insured of December 31,
2011. As the Seventh Circuit has explained, "The key is not whether one has improved (although
that is important), but whether [one has] improved enough to meet the legal criteria of not being
classified as disabled." Murphy v. Colvin, 759 F.3d 811, 819 (7th Cir. 2014). In light of how the
ALJ recognized that Plaintiff was prescribed a cane in September of 2012 and had “some
imbalance” as well as a “mildly unsteady” gait by the end of 2012, her finding that his
medications were so effective in controlling his symptoms stemming from Parkinson’s disease
that he could sustain the exertional demands of medium work without any manipulative
limitations on or before his date last insured is not supported by substantial evidence. (A.R. at
The ALJ improperly invoked the Plaintiff’s course of treatment and daily activities to
reject his allegations. She wrote that he “has not generally received the type of medical treatment
one would expect for a totally disabled individual.” Id. at 126. However, this is not reasonable in
light of how the most common treatment for Parkinson’s disease is medication and therapy and
how “[s]urgical treatment is reserved for PD patients who have exhausted medical treatment of
PD tremor or who suffer profound motor fluctuations.” The ALJ also improperly rejected the
Plaintiff’s allegations because he “has described daily activities, which are not limited to the
extent one would expect, given the complaints of disabling symptoms and limitations.” (A.R. at
126) But it is difficult to follow the ALJ’s reasoning because she did not explain herself in a way
that enables meaningful review, and also reached the exact opposite conclusion to find that
“[b]eginning on July 10, 2013, the claimant has described daily activities which are quite limited
and which are consistent with the complaints of disabling symptoms and limitations.” Id. at 127.
Plaintiff notes that the ALJ never mentioned the testimony of the Plaintiff’s wife which
addressed his extensive limitations with daily activities, including his difficulty feeding himself
and his tendency to get lost “quite often” if asked to go anywhere alone. (A.R. at 63-68; 124-128,
9-11) She also ignored how in March of 2012 Plaintiff reported having difficulty with lifting,
squatting, bending, kneeling, using his hands, memory, concentration, and completing tasks due
to symptoms associated with Parkinson’s disease. Id. at 260. The Seventh Circuit has repeatedly
rejected this type of cursory invocation of a claimant’s daily activities because “[t]he critical
differences between activities of daily living and activities in a full-time job are that a person has
more flexibility in scheduling the former than the latter, can get help from other persons . . . and is
not held to a minimum standard of performance, as [he] would be by an employer.” Hughes v.
Astrue, 705 F.3d 276, 278-279 (7th Cir. 2013) (citations omitted). Therefore, remand is
appropriate on the issue of limitation of daily activities.
On the basis of the foregoing, this case is hereby REMANDED to the Commissioner for
proceedings consistent with this opinion.
Entered: October 18, 2016.
s/ William C. Lee
William C. Lee, Judge
United States District Court
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