Schunot v. Social Security Administration

Filing 32

MEMORANDUM ORDER & OPINION, since the ALJs decision was supported bysubstantial evidence, the decision of the Commissioner is AFFIRMED. ***Civil Case Terminated. Signed by Judge Allen Sharp on 9/5/08. (mlc)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA H A M M O N D DIVISION AT LAFAYETTE LYNANN SCHUNOT, P l a i n t i f f, v. M I C H A E L ASTRUE, C O M M I S S I O N E R OF S O C IA L SECURITY, D e fe n d a n t. ) ) ) ) ) ) ) ) ) ) )

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M E M O R A N D U M , ORDER & OPINION

Plaintiff, Lynann Schunot ("Ms. Schunot"), seeks judicial review of the denial of her c la im for benefits and a period of disability under Title II of the Social Security Act. The C o m m is s io n e r of Social Security found Ms. Schunot entitled to neither Disability Insurance B e n e f its ("DIB") nor Security Income Benefits ("SSI") under Title II of the Social Security A c t, 42 U.S.C. § 416 (I), 423. This Court has jurisdiction over this action pursuant to 42 U .S .C . § 405(g). Ms. Schunot applied for DIB and SSI on or about May 31, 2005 (Tr. 48-50). The a p p lic a tio n was denied on October 25, 2005 and the request for reconsideration was denied o n February 6, 2006 (Tr. 32-35, 40). Ms. Schunot then requested a hearing in front of the A d m in is tra tiv e Law Judge ("ALJ"), Steven E. Davis, which was conducted on July 12, 2006 (T r. 43, 10-22). After the ALJ denied Ms. Schunot's application, she requested review by th e Appeals Council, which was denied on November 14, 2006 (Tr. 4).

I. Background A. Statement of Facts At the time of her alleged disability onset date of March 1, 2004, Ms. Schunot was f o rty years old, and had attended school through the seventh grade, later obtaining her G e n e r a l Equivalency Diploma and certification as a nurse's assistant (Tr. 48, 82-83). Ms. S c h u n o t worked as a nurse's assistant for twenty-five years prior to her alleged onset date, a t which point she ceased working (Tr. 76-77). B. Medical Evidence Throughout the period in which she is claiming disability, Ms. Schunot was seen by n u m ero u s medical professionals, including personal physicians, a mental health counselor, a psychiatrist, and those reviewing/consultative physicians and psychiatrists who evaluated M s . Schunot and her records pursuant to her disability claim. First, in February, 2004, one week prior to her alleged onset date, Ms. Schunot visited h e r family physician Dr. Andrew Edwards ("Dr. Edwards") complaining of a sore throat and "slig h t achiness" (Tr. 244). On June 4, 2004, three months after her alleged onset date, Dr. E d w a rd s again treated Ms. Schunot, this time for a spider bite on her hand (Tr. 243). A few weeks later, on July 21, 2004, Ms. Schunot returned to Dr. Edwards, stating th a t she was going through a divorce, was depressed and had been depressed for six months (T r. 424). Dr. Edwards prescribed anti-depressant medication, and, on September 1, 2004, s ta te d that Ms. Schunot's depression was "stable" (Tr. 242, 235).

Additionally, at her September visit to Dr. Edwards, Ms. Schunot complained of h e m o rrh o id s with constant bleeding (Tr. 234). Dr. Edwards described her as "generally h e a lth y" despite her ongoing hemorrhoid pain (Tr. 235). Ms. Schunot then underwent an e x c is io n of her hemorrhoids later that month, with "markedly improved" symptoms by S e p te m b e r 29, 2004 (Tr. 226). In November 2004, Ms. Schunot again visited Dr. Edwards, this time complaining of a rash and right elbow pain due to an accident with a gurney (Tr. 223). Additionally, Ms. S c h u n o t was concerned about a prior ultrasound showing uterine fibroids, for which she was re f erre d to a gynecologist. Id. At the time Dr. Edwards noted that, despite her elbow pain, M s . Schunot had a "full range of motion." Id. In February 2005, Ms. Schunot again returned to Dr. Edwards complaining of chest p a in and a cough (Tr. 210-211). That same month, Dr. Edwards referred Ms. Schunot to lis c e n s e d mental health counselor Marcus Jacobs (Tr. 149-151). At her consultation Ms. S c h u n o t reported to Mr. Jacobs the following: she had a hard time functioning and "lots of g u ilt" from her divorce, she constantly scratched herself to the point of bleeding and was on m e d ica tio n for this, she enjoyed playing pool, and was captain of a team that was thirteenth in the state, drank a six-pack a week while playing pool, and had smoked pot two months p rio r to her visit. Id. Mr. Jacobs diagnosed Ms. Schunot with major depression and general a n x ie ty and assigned her a Global Assessment of Functioning ("GAF") of 55. Mr. Jacobs re f e rr e d Ms. Schunot back to Dr. Edwards for a medical examination. Id. One month later, in March 2005, Ms. Schunot returned to Dr. Edwards complaining

of joint pain in all of her joints, shortness of breath, tenderness in her finger joints, shoulders, a n d trapezius muscle area on palpitation. (Tr. 210). Dr. Edwards observed no joint swelling. Id . In April 2005, Mr. Jacobs, the mental health counselor, referred Ms. Schunot to P s yc h o lo g is t Dr. Rebecca Kloker (Tr. 145-48). Ms. Schunot reported to Dr. Kloker that she d id not feel she could work due to her physical problems but that she did not feel suicidal. Id . Dr. Klocker noted that Ms. Schunot was alert and oriented with adequate attention and c o n c en tra tio n , fair judgement, logical speech, and an intact memory. Id. Dr. Kloker assigned M s . Schunot a GAF of 60 and recommended that she stop taking certain medications was p re v io u s ly prescribed. Id. In May 2005, Dr. Edwards referred Ms. Schunot to Rheumatologist Arthur Kaluta (Tr. 2 0 1 -0 3 ). Dr. Kaluta found no synovitis in Ms Schunot's finger joints but did note cacified s p u rs over the second and third distal interphalaneal joints. Id. Dr. Kaluta further noted that M s . Schunot had full range of motion of in her wrists, elbows, shoulders, cervical spine, lu m b e r spine, hips, knees and ankles. Id. Moreover, he noted that Ms. Schunot's reflexes a n d muscle strength were normal. Dr. Kaluta opined that Ms. Schunot had generalized m ya lg ia s and anthralgias with an underlying history of depression that strongly suggested fib rom yala g ia as the cause of her pain. Id. Specifically, Dr. Kaluta noted that Ms. Schunot's sym p to m s were "not very specific and more suggestive of a psychogenic component of pain ra th e r than underlying anatomic derangement" (Tr. 202). Dr. Kaluta gave Ms. Schunot L id o d e rm patches to treat her pain and ordered laboratory tests and x-rays of her back and

sacrioliac area. Id. The x-rays and lab tests, which were performed later that same month, re v e ale d only mild degenerative changes (Tr. 197). At the time, Ms. Schunot reported that th e patches had not eased her pain and Dr. Kaluta discussed fibromyalgia treatment options w ith Ms. Schunot and gave her the telephone number for a fibromyalgia study. Id. In August 2005, Ms. Schunot was evaluated by Psychologist David Jarmon at the A g e n c y's request (Tr. 167-69). Ms. Schunot told Dr. Jarmon that she had quit working in J u ly 2004 when she had hemorrhoids, she found it depressing to work with people in a n u rs in g home and cried every day when she worked in the cancer unit. Id. Further, she re p o rte d that she was unable to live on her own and moved back in with her ex-husband. Id. S h e also stated that her depression had diminished since she began treatment, however Ms. S c h u n o t also stated that her daily activities were limited to cleaning the house in spurts, w a lk in g short distances, swimming occasionally, and crying and sleeping much of the day. I d . Dr. Jarmon diagnosed Ms. Schunot with mood disorder due to fibromyalgia with d e p re s s iv e features and assigned Ms. Schunot a GAF of 55. Id. In August 2005, Ms. Schunot returned to Dr. Edwards complaining of a toothache, k n e e pain, and flu-like symptoms (Tr. 190). In September 2005 she complained of a rash and b r u is e as a result of getting head butted from a crowd (Tr. 191). And in October 2005, Ms. S c h u n o t sprained her ankle (Tr. 189). Next, in January 2006 Ms. Schunot was examined by Dr. R. Newton pursuant to her b e n e fits claim (Tr. 251-54). Dr. Newton noted that Ms. Schunot was able to get on and off o f the examination table without difficultly, had normal gait and station, and could bend over

without difficulty. Id. Further, Dr. Newton noted that Ms. Schunot had fourteen out of e ig h te e n trigger points for fibromyalgia and could not walk on her heels or toes without d if f ic u lty. Id. Also, Dr. Newton noted that Ms. Schunot had full motor strength, normal re f le x e s, full and normal hand grip, and was able to handle small objects and button clothing. Id . Psychologists reviewed Ms. Schunot's record at the request of the State Agency in S e p tem b e r 2005 and January 2006 (Tr. 184-86, 249). They concluded: (1) that she was able to perform simple repetitive tasks on a sustained basis without extraordinary a c co m m o d a tio n s , (2) that she would work best alone or as part of a small group but could not w o r k with the public in jobs requiring much contact with others, (3) that she would have p ro b le m s with a supervisor who was often negative or critical but could work with a s u p e rv is o r of normal consideration, (4) that she should be able to attend to a task for two h o u rs , and (5) that there would be days when she would feel overwhelmed by her condition a n d would be absent but that these days were not expected to occur with overwhelming f re q u e n c y. Id. Additionally, medical physicians reviewed Ms. Schunot's medical records on behalf o f the State Agency in July 2005 and February 2006 and concluded that she could: (1) lift 50 p o u n d s occasionally, (2) lift 25 pounds frequently, (3) stand or walk six hours in an eight h o u r day, and (4) perform unlimited pushing and pulling (Tr. 159-66, 264). Additionally, the p h ys ic ia n s concluded that Ms. Schunot had no postural, manipulative, or environmental lim ita tio n s . Id.

Finally, in February 2006 Ms. Schunot visited her doctor complaining of irregular p e rio d s , anxiety, and bronchitis (Tr. 265). C. Social Security Questionnaire O n July 9, 2005, Valerie Marin, Ms. Schunot's sister, filled out a questionnaire for th e State Agency in which she reported that Ms. Schunot , "...used to be able to work and p la y pool. But her hands and Body (sic) hurt her so bad." (Tr. 93). Further she stated th a t Ms. Schunot, "takes shower (sic) now because it is to (sic) hard to get up and down" a n d further stated that it was difficult for Ms. Schunot to stand, sit, or walk too far. Id. D. Hearing Testimony On June 29, 2006, a hearing was held in which Ms. Schunot and Constance Brown, a vocational expert, testified. At the hearing Ms. Schunot testified that she stopped working because of general pain a n d discomfort (Tr. 274). Specifically she testified as to the following medical complaints: p ain in her hands and feet, limitations on sitting and standing, ankle weakness and severe p a in in her knees, her knees giving out if she got up after sitting too long, severe hip pain if s h e laid on her side for an hour, neck pain, irritable bowel syndrome, pain that grew worse i f she tried activities, and pain that was worse in the morning (Tr. 274-78). Ms. Schunot tes tifie d that the medication Relafen eased her pain (Tr. 274). Further, she stated that she did n o t sleep well due to pain and anxiety and that she scratched herself and drew blood every d ay, a condition for which her doctor had placed her on Atarax. (Tr. 278-79, 284). A d d itio n a lly, Ms. Schunot testified about her psychological health, stating that her

mind wandered, she had thoughts of suicide and cried constantly, and that she did not "do c ro w d s " because she became anxious (Tr. 275, 280). She also testified that she took Zoloft a n d Klonopin for depression, which helped "[a] little bit" but made her drowsy and unable to sleep (Tr. 275, 281). F inal ly , as to her daily activities, Ms. Schunot testified that she did not go grocery s h o p p in g , or do laundry, housecleaning, or yard work (Tr. 275. 281). She reported that she d ro v e , but not for long uninterrupted distances, and spent a typical day sitting and inactive (T r. 275-76). She could walk three or four blocks at a time but was unable to mop or vacuum b e c a u se her hands and arms went numb (Tr. 276-81). She usually did not wear clothes with b u tto n s, dropped things due to losing feeling in her hands, and had a hard time with steps (Tr. 2 8 1 -8 2 ). Further, she no longer played pool due to pain in her hands, having last played two ye a rs earlier (Tr. 282). She read the newspaper, but did not read books due to difficulty co n ce n tratin g or use a computer due to hand numbness (Tr. 283). In addition to Ms. Schunot, vocational expert Constance Brown also testified at the a d m in istra tiv e hearing (Tr. 285-89). The vocational expert testified that an individual with th e sort of hand limitations about which Ms. Schunot testified would not be able to work any jo b (Tr. 289). However, the ALJ posed a hypothetical question to the vocational expert, a sk in g her to assume an individual with the following characteristics: someone who could n o t work with the general public or in jobs that required intensive interpersonal contact with o th e rs , someone who would work best alone in semi-isolation or as part of a small group, s o m e o n e who could work with a supervisor who was normally considerate and positive but

would have problems with a supervisor who was often negative, critical, or quarrelsome, and s o m e o n e who could attend to a task for a two-hour period of time and could perform simple, re p e titiv e tasks (Tr. 285-86). The vocational expert testified that this hypothetical individual c o u ld not perform Ms. Schunot's past relevant work as a CNA or any work to which her s k ills from that job might transfer (Tr. 286). Yet, the vocational expert also testified that th e re were thousands of jobs, such as clerical work, that an individual could perform despite th e limitations set forth in the ALJ's hypothetical (Tr. 286-87). II. Standard of Review This Court's review of the Commissioner's decision is a limited one. Unless there is an error of law, this Court will uphold the Commissioner's findings of fact if they are s u p p o rte d by substantial evidence. Shoenfeld v. Apfel, 237 F.3d 788, 792 (7th Cir. 2001). S u b s ta n tia l evidence consists of "such relevant evidence as a reasonable mind might accept a s adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 399-400 (1971). In making a substantial evidence determination, this Court will review the record as a whole, b u t will not reevaluate the facts, re-weigh the evidence or substitute its own judgment for that o f the Commissioner. Williams v. Apfel, 179 F.3d 1066, 1071-72 (7th Cir. 1999). That being said, this Court is required to critically review the evidence and not simply ru b b e r- s ta m p the Commissioner's decision. Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2 0 0 0 ). This Court must ensure that the ALJ has built "an accurate and logical bridge b e tw e e n the evidence and the result." Shramek v. Apfel, 226 F.3d 809, 811 (7th Cir. 2000). However, if reasonable minds could disagree on whether an individual is disabled, the court

must affirm the Commissioner's decision denying benefits. Schmidt v. Apfel, 201 F.3d 970, 9 7 2 (7th Cir. 2000); Books v. Chater, 91 F.3d 972, 978 (7th Cir. 1996). III. Discussion Generally, "[b]enefits are available only to those individuals who can establish d is a b ility under the terms of the Social Security Act." Estok v. Apfel, 152 F.3d 636, 638 (7 th .C ir.1 9 9 8 ). Specifically, the claimant bears the burden of showing through testimony and m e d ic a l evidence supported by clinical data and laboratory diagnosis that she was disabled d u rin g the period in which she was insured. Reading v. Matthews, 542 F.2d 993, 997 (7th C ir.1 9 7 6 ) (citing Jeralds v. Richardson, 445 F.2d 36, 38-39 (7th Cir. 1971)). Furthermore, th e claimant must show that she is "unable to engage in any substantial gainful activity by re a so n of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not le s s than 12 months." 42 U.S.C. § 423(d)(1)(A). The regulations supporting the Social Security Act create a five-step inquiry in d e te rm in in g whether a claimant is disabled, under which the ALJ must consider the a p p lica n t's claim in the following sequence: (1) whether the claimant is currently employed; (2) whether she has a severe impairment; (3) whether her impairment meets or equals one listed by the Secretary; (4) whether the claimant can perform her past work; and (5) whether the claimant is capable of performing any work in the national e c o n o m y. Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001) (citing 20 C.F.R. § 404.1520). The in itia l burden in steps one through four is on the plaintiff; only at step five does the burden

shift to the Commissioner. Bolinger v. Barnhart, 446 F. Supp. 2d 950, 955 (N.D.Ind. 2006). In this case, the ALJ concluded at step one of the five-step disability determination, th a t Mrs. Schunot had not engaged in substantial gainful activity since the alleged onset date o f her disability, May of 2004 (Tr. 14). The ALJ also found at steps two and three that Ms. S ch u n o t had two severe impairments - depression and fibromyalgia - and, though the ALJ a ss e ss e d Ms. Schunot's fibromyalgia under Listing 1.02 and her depression under Listing 1 2 .0 4 , he found that neither met or equaled an impairment listed by the Secretary (Tr. 14-17); 2 0 C.F.R. § 404.1520 (c, d). Next, at step four, the ALJ found that Ms. Schunot could not p e rf o rm her past work as a CNA (Tr.20); 20 C.F.R. § 404.1520(e,f). Finally, the ALJ found th a t Ms. Schunot was capable of performing a limited range of medium work with simple a n d repetitive tasks and without contact with the general public or extensive interaction with c o w o rk e rs (Tr. 17-20). Thus, relying on the vocational experts testimony, the ALJ found th a t Plaintiff could perform a significant number of other jobs despite the limitations caused b y her impairments (Tr. 20-22); 20 C.F.R. § 404.1520(g). Accordingly, the ALJ denied Ms. S ch u n o t's applications for DIB and SSI (Tr. 22). O n appeal before this Court, Ms. Schunot argues that the ALJ did not follow the law in determining that her fibromyalgia was not preclusive of her being employed (Pl. Br. at 7). S p e c if ic a lly, Ms. Schunot argues that the ALJ "did not build an accurate and logical bridge f ro m the evidence to his conclusions in this case." Id. Generally, an ALJ's decision will only be overturned where it lacks any explanation o r support. Elder v. Astrue, 529 F.3d 408, 413-414 (7th Cir. 2008). With regard to

fibromyalgia, the Seventh Circuit has specifically noted the elusiveness of the disease and h a s, in at least one case, remanded due to an ALJ's "pervasive misunderstanding of the d is e a se ," "shaky understanding of the medical facts," and "unfounded sociological s p e c u la tio n s ." See Sarchet v. Chater, 78 F.3d 305, 307-08 (7th Cir. 1996) (noting that f ib r o m ya l g i a is "a common, but elusive and mysterious, disease"). Further, when an a p p l ic a n t produces medical evidence of an underlying impairment, an ALJ must not deny a n applicant benefits merely because that applicant's disabling pain is not supported by o b j e c t iv e evidence. See Carradine v. Barnhart, 360 F.3d 751 (7th Cir. 2004) (remanding w h e re an ALJ disregarded a "long history of treatment" merely due to the absence of o b jec tiv e evidence). Overall, "an ALJ's decision if supported by substantial evidence, will b e upheld even if an alternative position is also supported by substantial evidence." Scheck v . Barnhart, 357 F.3d 697, 699 (7th Cir. 2004). Accordingly, if reasonable minds could d is a g re e on whether an individual is disabled, the court must affirm the ALJ's decision d e n yin g benefits. Schmidt, 201 F.3d at 972. A . The ALJ's understanding of Fibromyalgia Ms. Schunot first argues that the ALJ erred in considering Ms. Schunot's physical e x a m in a tio n s in the course of determining that her fibromyalgia was a serious but not d isa b lin g condition (Pl. Br. 8). Counter to Ms. Schunot's argument, the ALJ's reasoning in h e r case is not analogous to that of the ALJ in Sarchet. First, unlike in Sarchet, here the ALJ c o n c lu d e d that Ms. Schunot does, in fact, suffer from fibromyalgia. His reason for denying M s . Schunot Social Security benefits stems from his conclusion that, despite the seriousness

of her fibromyalgia, Ms. Schunot is nonetheless able to perform a significant number of jobs in the national economy. Moreover, unlike in Sarchet, where the ALJ failed to understand f ib ro m ylag ia or the medical evidence present in that case, here the ALJ specifically took note o f the Sarchet case and the sensitive nature of fibromyalgia. Ms. Schunot has presented no e v id e n c e that the ALJ had an unclear understanding of the disease or of her particular m e d ic a l facts. Accordingly, this case is distinguishable from Sarchet and the ALJ's decision is supported by substantial evidence. B. Evidence Supporting or Contradicting Claimant's Testimony Additionally, Ms. Schunot alleges that the reasons given by the ALJ for his determ inatio n are insufficient because he questioned her testimony concerning her limitations in performing daily activities. Ms. Schunot points to the Carradine case in arguing that the la c k of objective medical evidence supporting her testimony should not have been relevant to the ALJ's consideration of her testimony. Ms. Schunot is correct in arguing that it is im p ro p e r for an ALJ to dismiss testimony of an ailment like fibromyalgia merely because that te stim o n y is not supported by objective evidence. However, unlike in Carradine, in the p re se n t case the ALJ did not base his opinion on a lack of objective evidence; he based his o p in io n on the lack of subjective complaints on Ms. Schunot's part that would support her d is a b ility as of her May 2004 onset date. Specifically, the ALJ noted that Ms. Schunot did not complain of arthritus-like s ym p t o m s until March, 2005 (Tr. 7). He further stated that her main complaints in August o f that year were a toothache and knee pain. Id. In addition, the ALJ specifically noted

evidence of Ms. Schunot playing pool and serving as captain of her pool team in June 2005, in the midst of her alleged disability (Tr. 19). Although Ms. Schunot may disagree with the A L J's conclusions, it is clear that the ALJ supported his findings with more than merely a ss e rtin g a lack of objective evidence, as was the case in Carradine. On the contrary, in the p re se n t case the ALJ examined the complaints that Ms. Schunot made in the months after her a lle g e d onset date and the evidence that she herself gave in arriving at his conclusion. C. Evidence of Limited Daily Activities Finally, Ms. Schunot argues that the ALJ erred in disregarding evidence of her limited d a il y activities. Specifically, Ms. Schunot states that there was sufficient evidence of her lim ita tio n s in the form of her sister's affidavit (Pl. Br. 10). Although Ms. Schunot is correct i n pointing out that some of her claims are corroborated by her sister's affidavit, this is an in su f f icie n t basis upon which to remand the case. This Court takes note of the Seventh C irc u it's statements in Schmidt and Scheck and concludes that even if it were to find that the af fid av it of Ms. Schunot's sister constitutes substantial evidence in support of Ms. Schunot's p o s itio n , there is, nonetheless, substantial evidence supporting the ALJ's determination. S u c h evidence includes the lack of evidence of Ms. Schunot complaining of any f ib ro m ya lg ia -lik e symptoms until nearly a year after her alleged disability onset date, and the c o n f lic tin g evidence regarding her limited daily activities, and the fact that no physician who e x a m in e d Ms. Schunot opined that she had disabling limitations. Therefore this Court finds su b sta n tial evidence that the ALJ build an accurate and logical bridge from the evidence to h is conclusions.

IV. Conclusion The purpose of this Court's review of the ALJ's decision is to ensure that it is s u p p o r te d by substantial evidence. Therefore, since the ALJ's decision was supported by s u b s ta n t ia l evidence, the decision of the Commissioner is AFFIRMED. SO ORDERED. D A T E D : September 5, 2008

/s/ Allen Sharp ALLEN SHARP, JUDGE U N IT E D STATES DISTRICT COURT