BERRY v. COLVIN
Filing
25
DECISION ON JUDICIAL REVIEW: The court AFFIRMS the Commissioner's decision that Mr. Berry was not disabled. Signed by Magistrate Judge Debra McVicker Lynch on 3/24/2015.(JLM)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
WILLIAM LEE BERRY,
)
)
Plaintiff,
)
)
v.
) CASE NO.: 4:13-cv-0190-DML-TWP
)
CAROLYN W. COLVIN, Acting
)
Commissioner of the Social Security,
)
Administration,
)
)
Defendant.
)
Decision on Judicial Review
Plaintiff William Lee Berry applied in January 2011 for Disability Insurance
Benefits (DIB) under Title II of the Social Security Act, alleging that he has been
disabled since December 1, 2008. Acting for the Commissioner of the Social Security
Administration following a hearing held June 19, 2012, administrative law judge
Anne Shaughnessy issued a decision on August 23, 2012, finding that Mr. Berry
was not disabled before his date last insured for DIB. The Appeals Council denied
review of the ALJ’s decision on October 9, 2013, rendering the ALJ’s decision for the
Commissioner final. Mr. Berry timely filed this civil action under 42 U.S.C. § 405(g)
for review of the Commissioner’s decision.
Mr. Berry contends that the ALJ erred in deciding at step two that he did not
suffer from a medically determinable severe impairment before his date last
insured. For the reasons addressed below, the court AFFIRMS the Commissioner’s
decision that Mr. Berry was not disabled.
The court recounts the standard for proving disability under the Social
Security Act and the court’s standard of review of the administrative decision. It
will then address Mr. Berry’s assertion of error.
Standard for Proving Disability
A claimant is disabled if he cannot “engage in any substantial gainful activity
by reason 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 less than twelve months.” 42 U.S.C. § 423(d)(1)(A). The
Social Security Administration (“SSA”) has implemented this statutory standard by,
in part, prescribing a five-step sequential evaluation process for determining
disability. 20 C.F.R. § 404.1520.
Step one asks if the claimant is currently engaged in substantial gainful
activity; if he is, then he is not disabled. Step two asks whether the claimant
suffers from a medically determinable physical or mental impairment or
combination of impairments that is severe. If he does not, then he is not disabled.
The third step is an analysis of whether the claimant’s impairments, either singly
or in combination, meet or medically equal the criteria of any of the conditions in
the Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1. The Listing
of Impairments includes medical conditions defined by criteria that the SSA has
pre-determined are disabling, so that if a claimant meets all of the criteria for a
listed impairment or presents medical findings equal in severity to the criteria for
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the most similar listed impairment, then the claimant is presumptively disabled
and qualifies for benefits. Sims v. Barnhart, 309 F.3d 424, 428 (7th Cir. 2002).
If the claimant’s severe impairments do not satisfy a listing, then his residual
functional capacity (RFC) is determined for purposes of steps four and five. RFC is
a claimant’s ability to do work on a regular and continuing basis despite his
impairment-related physical and mental limitations. 20 C.F.R. § 404.1545. At the
fourth step, if the claimant has the RFC to perform his past relevant work, then he
is not disabled. The fifth step asks whether there is work in the relevant economy
that the claimant can perform, based on his vocational profile (age, work
experience, and education) and his RFC; if so, then he is not disabled.
The individual claiming disability bears the burden of proof at steps one
through four. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). If the claimant meets
that burden, then the Commissioner has the burden at step five to show that work
exists in significant numbers in the national economy that the claimant can
perform, given his age, education, work experience, and functional capacity. 20
C.F.R. § 404.1560(c)(2); Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004).
Standard for Review of the ALJ’s Decision
Judicial review of the Commissioner’s (or ALJ’s) factual findings is
deferential. A court must affirm if no error of law occurred and if the findings are
supported by substantial evidence. Dixon v. Massanari, 270 F.3d 1171, 1176 (7th
Cir. 2001). Substantial evidence means evidence that a reasonable person would
accept as adequate to support a conclusion. Id. The standard demands more than a
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scintilla of evidentiary support, but does not demand a preponderance of the
evidence. Wood v. Thompson, 246 F.3d 1026, 1029 (7th Cir. 2001).
The ALJ is required to articulate a minimal, but legitimate, justification for
her decision to accept or reject specific evidence of a disability. Scheck v. Barnhart,
357 F.3d 697, 700 (7th Cir. 2004). The ALJ need not address every piece of evidence
in her decision, but she cannot ignore a line of evidence that undermines the
conclusions she made, and she must trace the path of her reasoning and connect the
evidence to her findings and conclusions. Arnett v. Astrue, 676 F.3d 586, 592 (7th
Cir. 2012); Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).
Analysis
I.
The ALJ determined that Mr. Berry was not disabled at step two.
Mr. Berry was born in 1950 and was 57 years old at the alleged onset of his
disability in December 2008. His date last insured for DIB benefits was March 31,
2010, when Mr. Berry was 59 years old. R. 143. Mr. Berry’s work experience is
focused in the construction industry, including nearly 26 years during which he had
his own construction business, building boathouses, decks, and garages on two lakes
in Brown County, Indiana.
At step one, the ALJ found Mr. Berry had not engaged in substantial gainful
activity since his alleged onset date.
At step two, the ALJ determined there were no medical signs or laboratory
findings to substantiate that Mr. Berry had a medically determinable impairment
before the expiration of his date last insured. Accordingly, the ALJ found at step
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two that Mr. Berry was not disabled and did not reach steps three, four, or five of
the sequential analysis.
II.
The ALJ’s step two decision is supported by substantial evidence.
A. In a Title II case, the claimant must be disabled before his date last
insured.
Title II benefits are for individuals who have achieved insured status through
employment and withheld premiums. 42 U.S.C. § 423(a)(1)(A). Formulas are used
to determine the length of time that an individual, based on his age and work
history, remains insured for Title II benefits. See 42 U.S.C. § 423(c)(1); 20 C.F.R. §
404.130. In Mr. Berry’s case, his date last insured was March 31, 2010. His
eligibility for Title II benefits depends upon his having become disabled before
March 31, 2010. Shideler v. Astrue, 688 F.3d 306, 311 (7th Cir. 2010) (whatever the
condition a claimant may be at some later point in time, he “must establish that he
was disabled before the expiration of his insured status . . . to be eligible for
disability insurance benefits”); Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 348
(7th Cir. 1997) (to be entitled to DIB, “an individual must establish that the
disability arose while he or she was insured for benefits”).
B. The medical evidence does not reflect testing, diagnoses, or
treatment related to Mr. Berry’s alleged disability before his date
last insured.
Mr. Berry relied on his treatment by Dr. Marc Willage as evidence of his
disability. He first saw Dr. Willage in June 2009 (before his date last insured) and
did not return for treatment until March 2011 (after his insured status expired). At
the June 2009 appointment, Mr. Berry reported he could not hear out of his left ear
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and had a history of wax accumulating in that ear. The doctor’s examination
indicated seborrhea of both ears with hard appearing cerumen occluding both ears.1
He prescribed ointment and droplets as treatment. R. 159. Dr. Willage also
recorded under the title “Past Medical History” that Mr. Berry had suffered a head
injury when struck by a garage door spring. Id.
About two years later, in March 2011, Mr. Berry returned to Dr. Willage and
complained of a headache for which he could not control the pain. R. 156. He
reported that in his mid-30s he had been struck in the head by a garage door spring
and had had gradually progressing, worsening, and variable headaches over the left
frontal area since then. He also reported a history of throbbing headaches on the
right side at times over the last 10 years. Id. Dr. Willage recommended screening
exams and studies and possibly an EEG and CT scan. R. 157. Mr. Berry
underwent a CT scan in May 2011. R. 175. It was “essentially normal,” though Mr.
Berry continued to report headaches, which were especially worse after significant
physical activity. R. 169. Mr. Berry returned to Dr. Willage in November 2011 and
in April 2012, and reported at those visits that he had recurrent headaches, vertigo,
and problems with balance. R. 162, 166.
Dr. Willage wrote two opinions concerning Mr. Berry’s condition. He
prepared a letter dated November 29, 2011, “to whom it may concern” which states
his belief in Mr. Berry’s “assertion of incapacitating headaches when giving forth
significant physical exertion” and his opinion that Mr. Berry is not physically
1
Seboreum describes an inflammation of the skin. Cerumen is earwax.
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capable of performing jobs for which he has experience and training. R. 161. Dr.
Willage also completed a form titled “Headaches Residual Functional Capacity
Questionnaire,” dated April 2012, in which Dr. Willage stated he had been treating
Mr. Berry for headaches since March 2011. As to positive test results or objective
signs of the headaches, Dr. Willage noted that a CT scan was normal and that he
recommended an EEG, appropriate lab work, and an evaluation by a neurologist.
R. 180.
C. Step two requires a medically determinable impairment.
Social Security Act regulations require that a claimant have a physical or
mental impairment that is “medically determinable.” 20 C.F.R. § 404.1520(a)(4)(ii).
An individual’s “symptoms” are not enough to establish a medically determinable
impairment, no matter how credible they seem. SSR 96-4p. Rather, there must be
objective medical abnormalities shown by “medical signs or laboratory findings.” Id.
The Social Security Administration has explained:
No symptom or combination of symptoms by itself can constitute a
medically determinable impairment. In claims in which there are no
medical signs or laboratory findings to substantiate the existence of a
medically determinable physical or mental impairment, the individual
must be found not disabled at step 2 of the sequential evaluation
process set out in 20 C.F.R. 404.1520.
Id.
D. The ALJ reasonably determined that there was insufficient evidence
of a medically determinable impairment.
The ALJ’s determination that there was insufficient evidence of a medically
determinable impairment is supported by substantial evidence, including the
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medical opinion of state agency physicians. Mr. Berry complains that the ALJ
should have given more weight to Dr. Willage’s opinion, however. He contends that
the headache questionnaire completed by Dr. Willage in April 2012 shows that he
suffered from a medically determinable impairment before his March 2010 last date
insured. He states that “It is clear that in Dr. Willage’s opinion there are medical
signs that substantiate Claimant’s condition such as a fractured skull that dates
back to 1984.” (Dkt. 17 at p. 7). The record provides no substantiation for Mr.
Berry’s version of the evidence. Nothing suggests a fractured skull. Mr. Berry’s
May 2011 CT scan was “essentially normal,” and even as of April 2012, Dr. Willage
indicated that other tests and evaluations needed to be conducted. (R. 180).
Moreover, Dr. Willage noted that he did not begin treating Mr. Berry for his
headache symptoms until March 2011. There is simply nothing in Dr. Willage’s
April 2012 opinion or in his treatment records documenting medical signs or
laboratory findings connected to headaches before the March 31, 2010 date last
insured. As addressed above, the only medical signs identified by Dr. Willage before
that date related to an inflammatory skin condition and earwax, neither of which
was ever tied to Mr. Berry’s headaches.
The ALJ’s decision reflects her careful consideration of all the evidence. Her
conclusion that Mr. Berry did not suffer from a medically determinable impairment
before his date last insured is reasonable. The court must therefore affirm the
Commissioner’s decision.
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Conclusion
For the foregoing reasons, the court AFFIRMS the Commissioner’s decision
that Mr. Berry was not disabled.
So ORDERED.
Dated: March 24, 2015
____________________________________
Debra McVicker Lynch
United States Magistrate Judge
Southern District of Indiana
Distribution:
All ECF-registered counsel of record by email through the court’s ECF system
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