The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
PATRICIA H.1, )
)
Plaintiff, )
)
v. ) CIVIL NO. 1:20cv347
)
KILOLO KIJAKAZI, )
Commissioner of Social Security, )
)
Defendant. )
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 a period of
disability and for Disability Insurance Benefits (DIB) under Title II of the Social Security Act. 42
U.S.C. § 423(d), § 1382c(a)(3). Section 405(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
1 To protect privacy, Plaintiff’s full name will not be used in this Order.
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. Scott v.
Astrue, 734, 739 (7th Cir. 2011); 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 also Jones v.
Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010). "If the record contains such support [it] must [be]
affirmed, 42 U.S.C. §405(g), unless there has been an error of law." Garfield, supra at 607; see
also Schnoll v. Harris, 636 F.2d 1146, 1150 (7th Cir. 1980).
In the present matter, after consideration of the entire record, the Administrative Law
Judge (“ALJ”) made the following findings:
1. The claimant meets the insured status requirements of the Social Security Act
through December 31, 2024.
2
2. The claimant has not engaged in substantial gainful activity since October 9,
2018, the amended alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: PTSD, generalized anxiety
disorder, social anxiety disorder, major depression, residuals to the left side of her
body and lumbar spine due to gunshot wounds (including neuropathy in her left
lower extremity), obesity, and left carpal tunnel syndrome (20 CFR 404.1520(c)).
4. The claimant does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined in
20 CFR 404.1567(b) except that she can never climb ladders, ropes, or scaffolds
and she can only occasionally climb ramps and stairs, balance, stoop, kneel,
crouch, and crawl. She needs to avoid unprotected heights and dangerous moving
machinery. She can perform frequent handling and fingering with the
non-dominant (left) upper extremity. She must avoid concentrated exposure to
wetness and vibration. She can perform work requiring simple instructions and
routine, repetitive tasks, but she cannot perform work requiring a specific
production rate (such as assembly-line work). She can make only simple
work-related decisions, maintain attention and concentration for two-hour
segments, and respond appropriately to predictable, routine changes in the
workplace. She can have brief and superficial interactions with others (defined as
occasional interaction with supervisors apart from what is necessary for general
instruction, task completion, or training, and occasional interaction with
co-workers and the general public). She cannot perform tandem tasks.
6. The claimant is capable of performing past relevant work as a cleaner (DOT
#323.687- 014), both as she actually did this job and as it is generally done in the
national economy. This work does not require the performance of work-related
activities precluded by the claimant’s residual functional capacity (20 CFR
404.1565).
7. The claimant has not been under a disability, as defined in the Social Security Act,
from October 9, 2018, through the date of this decision (20 CFR 404.1520(f)).
(Tr. 17-29).
Based upon these findings, the ALJ determined that Plaintiff was not entitled to disability
benefits. The ALJ’s decision became the final agency decision when the Appeals Council denied
3
review. This appeal followed.
Plaintiff filed her opening brief on September 20, 2021. On October 29, 2021, 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 must 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, 2290-
91 (1987). The United States Court of Appeals for the Seventh Circuit has summarized that test
as follows:
The following steps are addressed in order: (1) Is the claimant
presently unemployed? (2) Is the claimant's impairment "severe"?
(3) Does the impairment meet or exceed one of a list of specific
impairments? (4) Is the claimant unable to perform his or her
former occupation? (5) Is the claimant unable to perform any other
work within the economy? An affirmative answer leads either to
the next step or, on steps 3 and 5, to a finding that the claimant is
disabled. A negative answer at any point, other than step 3, stops
the inquiry and leads to a determination that the claimant is not
disabled.
Nelson v. Bowen, 855 F.2d 503, 504 n.2 (7th Cir. 1988); Zalewski v. Heckler, 760 F.2d 160, 162
n.2 (7th Cir. 1985); accord Halvorsen v. Heckler, 743 F.2d 1221 (7th Cir. 1984). From the nature
of the ALJ's decision to deny benefits, it is clear that step four was the determinative inquiry.
Plaintiff alleges the following impairments: left carpal tunnel syndrome, obesity, post-
traumatic stress disorder, generalized anxiety disorder, social anxiety disorder, major depression,
bullet fragments, hematuria, sinusitis, allergic rhinitis, hypertension, insomnia, chronic neck pain,
labyrinthitis, mild levoscoliosis of the upper thoracic spine, insomnia, and headaches.
4
In June of 2017, Plaintiff rejected the advances of a man, who was her friend. In response,
the man shot her 12 to 14 times in a building at the cosmetology school where she was a student.
After she escaped, the man shot himself and died. Afterwards, Park Center, a mental health
provider, treated Plaintiff for six months in 2017.
On February 14, 2019, consultative psychologist Leslie Predina, Ph. D. H.S.P.P.,
conducted a mental health status examination. Dr. Predina diagnosed: post-traumatic stress
disorder-with dissociative symptoms; generalized anxiety disorder; and social anxiety disorder.
On February 18, 2019, a non-examining consultant graded Plaintiff as: understand,
remember, or apply information: no impairment; interact with others: mild impairment;
concentrate, persist, or maintain pace: mild impairment; adapt or manage oneself: no impairment.
On April 17, 2019, another non-examining consultant arrived at the same gradations as the first
non-examining consultant.
On March 5, 2019, Plaintiff began mental health treatment with James A. Cates Ph. D. of
We Care Counseling. After conducting his initial mental status examination, Dr. Cates arrived at
provisional diagnoses of PTSD and depressive disorder. Dr. Cates recommended Rapid
Resolution Therapy (RRT) to address Plaintiff’s trauma. Dr. Cates described her health condition
as a “…severe emotional and physical disability.”
Northeastern Center, another mental health provider, treated Plaintiff from approximately
March 2019 through at least December 2019. A psychiatrist at Northeaster Center diagnosed
Plaintiff as follows: Posttraumatic Stress Disorder with dissociative symptoms and
depersonalization; Generalized Anxiety Disorder; Major Depressive Disorder, moderate. Plaintiff
received psychotherapy and medication, including Gabapentin and Cymbalta.
5
On May 21, 2019, Plaintiff’s Park Center therapist, Janet Anderson, MSN, APN, opined:
“[Plaintiff] is been treated through Park Center for her post traumatic stress disorder as a result of
a traumatic and violent event in Ft Wayne. I feel it would be best for her to live in a different and
safer feeling environment. The sounds of gunshots and the frequency of the ambulances aggravate
her symptoms, both psychiatrically and medically.”
On October 3, 2019, Northeastern Center therapist, Christine Swander MSW LSW,
opined as follows: [Plaintiff] is being seen at our facility for individual therapy and treatment for
posttraumatic stress disorder. [Plaintiff] reports the following symptoms to validate this
diagnosis: (1) recurrent, involuntary, and intrusive distressing memories of the traumatic event.
-Recurrent distressing dreams in which the content and/or affect of the dream are related to the
traumatic event; (2) dissociative reactions (e g., flashbacks) in which the individual feels or acts
as if the traumatic event were recurring. (Such reactions may occur on a continuum, with the most
extreme expression being a complete loss of awareness of present surroundings.); (3) intense or
prolonged psychological distress at exposure to internal or external cues that symbolize or
resemble an aspect of the traumatic event; (4) marked physiological reactions to internal or
external cues that symbolize or resemble an aspect of the traumatic event; (5) avoidance of or
efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the
traumatic event; (6) avoidance of or efforts to avoid external reminders (people, places,
conversations, activities, objects, situations) that arouse distressing memories, thoughts, or
feelings about or closely associated with the traumatic event.
On January 23, 2020, Plaintiff’s Northeastern therapist, Christine Swander MSW LSW,
completed a Fort Wayne Housing Authority “Verification of Disability/Handicap,” asserting that
6
Plaintiff met the disability requirements of 42 U.S.C. 423 (the Social Security disability
definition) as required by the U.S. Department of Housing and Urban Development (HUD).
In support of remand, Plaintiff argues that the ALJ improperly overemphasized daily
activities and thus the ALJ’s RFC assessment was not supported by substantial evidence. A
careful review of the decision, however, reveals that the ALJ relied on several factors in crafting
the RFC, such as work activity after the onset date and medical opinion evidence, and did not
overemphasize daily activities. With respect to daily activities, and Plaintiff’s mother’s
description of Plaintiff’s limitations, the decision reads:
First, as noted earlier, the claimant has worked at least on a part-time basis since
the amended alleged onset date. Although her earnings from this work activity did
not exceed substantial gainful activity limits, it still suggests that she is not as
limited as she and her mother alleged. Next, there is no evidence in the record that
the claimant's mother is a physician, psychologist, or any other sort of acceptable
medical provider, as per the Social Security Administration’s regulations. Thus,
she is likely not well-qualified to comment on the claimant's impairments and
limitations. In addition, by virtue of her relationship with the claimant, she is not
likely to be a particularly objective reporter on the claimant's impairments and
limitations.
Furthermore, the record reflects that the claimant herself alleged that she is able to
get along with others without difficulty (Ex. 5E, 9E). The record also reflects that
the claimant is able to get along with her mother well enough to live with her, has
at least one friend, and is able to care for her minor children, do her daughter’s
hair, walk her children to the bus stop, do some cooking, put soap in a washing
machine and start it, drive, go to the grocery store (albeit allegedly only with her
children), pay bills, count change, handle bank accounts, feed her cat, take her
medications with reminders, go to appointments with reminders, mop her floor,
use Messenger on Facebook, watch television, follow instructions “good,” and go
out alone (Ex. 5E, 6E, 9E, claimant’s testimony). The undersigned is mindful of
the fact that the ability to perform daily activities is not necessarily consistent with
the ability to perform full-time work; however, the ability to perform such daily
activities does suggest that the claimant is not as limited as she and her mother
alleged.
(Tr. 20-21)
7
Clearly, the ALJ’s discussion of daily activities was proper and, in conjunction with other
factors such as work activity and the medical evidence, provides substantial evidence for the
ALJ’s RFC assessment.
Plaintiff argues that the ALJ’s discussion of daily activities is evidence that the ALJ did
not believe that the other evidence (continuing to work, medical opinion evidence that Plaintiff
was not as limited as she alleged) supported the RFC assessment. Plaintiff’s argument is
unsupported. The regulations specifically instruct ALJs that factors relevant to the RFC
assessment include daily activities. 20 C.F.R. §404.1529(c)(3). Thus it is clearly not reversible
error for the ALJ to consider daily activities in conjunction with other factors, such as ability to
continue working and opinion medical evidence.
Plaintiff also notes that Dr. Predina stated that Plaintiff would struggle to get along with
others due to mental health issues, and that this should have prompted a more restrictive RFC.
However, the ALJ extensively discussed the medical evidence, including Dr. Predina’s opinion:
Moreover, the other medical sources of record usually described the claimant as
alert and oriented, as able to answer questions, and/or as exhibiting normal
judgment, insight, and/or thought process, and/or as exhibiting unimpaired
memory (Ex. 1F, 3F, 4F, 7F-9F). * * * The undersigned finds that, in interacting
with others, the claimant has a moderate limitation. This is more restrictive than
the opinion of the State Agency psychologists that the claimant was only mildly
limited in interacting with others (Ex. 1A, 3A). * * * She is also able to work
part-time in a job that requires social interaction.
In addition, progress notes from Northeastern Center and Ms. Rumschlag and the
report from Dr. Predina do not contain documentation to support a finding that the
claimant is markedly or extremely limited in interacting with others. The claimant
consistently denied feeling suicidal and homicidal, and her mental status
examination findings with regard to interacting with others were within normal
limits, except for sad/depressed and anxious mood, traumatized mood, flat and
labile affect, poor eye contact, tearfulness/crying, monotone speech, and
paranoia/suspiciousness (Ex. 2F, 5F, 10F). The claimant was also usually
8
described by the other medical sources of record as cooperative, as exhibiting
normal affect and mood, and/or as able to make eye contact (Ex. 3F, 4F, 7F).
Furthermore, there is no evidence in the record that the claimant has been
hospitalized on an inpatient basis for a psychiatric reason, especially since the
amended alleged onset date.
(Tr. 22-23).
In light of this discussion by the ALJ, there is no basis for this Court to rule that the ALJ’s
analysis is “patently wrong”, and thus no basis for remand. Accordingly, the decision will be
affirmed.
Conclusion
On the basis of the foregoing, the decision of the Commissioner is hereby AFFIRMED.
Entered: November 22, 2021.
s/ William C. Lee
William C. Lee, Judge
United States District Court
9