Winston v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

MYCHAEL W. 1, )

)

Plaintiff, )

)

v. ) CIVIL NO. 3:22cv675

)

KILOLO KIJAKAZI, Acting )

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 for Disability

Benefits under the Social Security Act. 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 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 no less than 12

months. . . ." 42 U.S.C. §416(i)(1); 42 U.S.C. §423(d)(1)(A). A physical or mental impairment is

"an impairment that results from anatomical, physiological, or psychological abnormalities which

1 For privacy purposes, Plaintiff’s full name will not be used in this Order.

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 a hearing, 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. The claimant has not engaged in substantial gainful activity since December 7,

2019, the alleged onset date (20 CFR 404.1571 et seq.)

3. The claimant has the following severe impairments: right hip osteoarthritis,

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status-post right total hip arthroplasty; obesity; major depressive disorder;

generalized anxiety disorder/post-traumatic stress disorder; and attention deficit

hyperactivity disorder (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 no more than occasional balancing, stooping, kneeling,

crouching, crawling, climbing of ramps and stairs, but no climbing of ladders,

ropes, or scaffolds; no more than occasional overhead reach; no exposure to moving

machinery, slippery, wet or uneven surfaces; the claimant requires work free of fast

paced production or quota, meaning no tandem work assignments, machine

regulated work or hourly production requirements.

6. The claimant is capable of performing past relevant work as a case worker and

social services aide. 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 December 7, 2019, through the date of this decision (20 CFR 404.1520(f)).

(Tr. 17-24).

Based upon these findings, the ALJ determined that Plaintiff was not entitled to benefits,

leading to the present appeal.

Plaintiff filed his opening brief on February 28, 2023. On June 16, 2023 the defendant

filed a memorandum in support of the Commissioner’s decision to which Plaintiff replied on

August 12, 2023. Upon full review of the record in this cause, this court is of the view that the

Commissioner’s decision should be affirmed.

A five step test has been established to determine whether a claimant is disabled. See

Singleton v. Bowen, 841 F.2d 710, 711 (7th Cir. 1988); Bowen v. Yuckert, 107 S.Ct. 2287, 2290-91

(1987). The United States Court of Appeals for the Seventh Circuit has summarized that test as

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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). In the present

case, Step 4 was the determinative inquiry.

In support of remand, Plaintiff argues that the ALJ failed to properly consider Plaintiff’s

statements regarding his symptoms, did not explain how limiting Plaintiff to non-fast-paced work

was an appropriate accommodation, erroneously concluded that Plaintiff can perform light work,

and failed to explain the conclusion that Plaintiff can occasionally reach overhead.

Plaintiff asserts the ALJ should have included more work limitations to accommodate his

symptoms of headaches with limits for being off task and absent from work, and dizziness and

balance symptoms with unspecified limits. However, Plaintiff cites no objective basis for these

limits. Fanta v. Saul, 848 F. App’x 655, 659 (7th Cir. 2021) (“Fanta does not point to any

objective evidence or medical opinions in the record that support stricter limitations.”). The

Commissioner correctly notes that Plaintiff improperly attempts to shift the burden of proving his

work limits to the ALJ. 20 C.F.R. § 404.1512(a) (Plaintiff has the burden of proving disability).

The ALJ cited discussions of the prior administrative medical findings, a psychological medical

expert’s answers to interrogatories about the impact of Plaintiff’s mental impairments and

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symptoms on work capacity, objective medical evidence, clinical findings, treatment history,

Plaintiff’s reports to his treating sources, and activities of daily living, in concluding the evidence

failed to support a disabling degree of limits beyond those she found ( Tr. 18-23).

The ALJ also considered the prior administrative medical findings at the initial and

reconsideration level from state agency physicians Dr. Brill and Dr. Sands, who reviewed the

medical records regarding Plaintiff’s impairments, including reports from treating physician Dr.

Troyer, neuropsychologist Dr. Elliott, and physical therapist Olga Hodgetts, D.P.T. (Tr. 22,

referring to Tr. 69-73, 78-85). The ALJ found unpersuasive Dr. Brill’s opinion that none of

Plaintiff’s impairments were severe, which was at odds with the clinical record and the opinion of

Dr. Sands that Plaintiff had several severe impairments that limited him to a range of light work

capacity (Id.). The ALJ found the opinion of Dr. Sands to be persuasive, noting that the clinical

findings in the record showed Plaintiff was able to ambulate, and showed no deficits in Plaintiff’s

motor strength, sensory responses, or manipulative dexterity (Tr. 22, referring to Dr. Sands’ report

at Tr. 78-85).

The ALJ also discussed several reports about Plaintiff’s walking ability, noting that Plaintiff

had undergone a right hip replacement surgery (arthroplasty) in June 2020, and by October 2020,

four months after surgery, Plaintiff told his doctor that he was pleased with the result and was

doing very well with no issues or complaints at that time (Tr. 20-21, referring to evidence at Tr.

313). Plaintiff stated that his pain was well-controlled and he had resumed most of his daily

activities, with Ibuprofen taken as needed for pain (Tr. 313). While his gait was observed as

antalgic during the October 2020 follow-up examination (Tr. 313), at other times he demonstrated

a normal gait (Tr. 426, 452). The ALJ correctly noted that Plaintiff was able to walk even if it was

with a limp (Tr. 21).

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The ALJ’s work capacity finding for a range of light work with occasional postural limits,

and no climbing ladders, ropes or scaffolds, matched that of Dr. Sands (Tr. 19, compare with Tr.

82-83), except that the ALJ also added limits for no more than occasional overhead reaching, and

against exposure to environmental hazards such as against operating machinery and exposure to

slippery, wet or uneven surfaces (Tr. 19). As the ALJ noted in her decision, no other physician in

the record opined that Plaintiff had greater limits (Tr. 22).

Dr. Sands opined that Plaintiff was capable of a range of light work that was similar to the

one the ALJ found. The ALJ cited the clinical findings about walking and neurological

functioning, including motor strength, sensory responses, and manipulative ability that supported

the doctor’s work capacity assessment (Tr. 22). Dr. Sands is a medical expert familiar with the

Social Security Administration regulations, and provided a detailed explanation and analysis of the

evidence. 20 C.F.R. § 404.1513a(b)(1) (state agency medical consultants are highly qualified and

experts in Social Security disability evaluation). Thus, there is no error on this point,

Plaintiff asserts that Dr. Sands did not consider the impact that obesity, dizziness, and

balance would have on his ability to stand or walk six hours a day. Plaintiff also asserts his left

shoulder osteoarthritis was not considered by Dr. Sands. However, Dr. Sands noted that family

physician Dr. Troyer saw Plaintiff for left shoulder strain, found left shoulder abduction was 90

degrees, and Plaintiff had pain and clicking with flexion and internal rotation, but nonetheless

found Plaintiff had normal strength in his arms and legs (Tr. 79, referring to Dr. Troyer’s records at

Tr. 245-46, 248). In that same report that Dr. Sands considered, Dr. Troyer listed Plaintiff’s

extremely obese weight and body mass index (Tr. 245, 247). Furthermore, Dr. Sands considered

physical therapy records that discussed Plaintiff’s dizziness and balance issues, but found

Plaintiff’s abilities to ambulate independently and perform work tasks had improved with therapy,

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and would continue to resolve and be restored to prior levels of function with further therapy goals

to improve strength and balance (Tr. 80, referring to physical therapist’s records at Tr. 285-86, 289,

298, 300, 302). The ALJ also addressed Plaintiff’s balance and dizziness symptoms, as well as

obesity, when assessing the impact of Plaintiff’s symptoms on his work capacity (Tr. 19-22).

Furthermore, the ALJ added limits on occasional overhead reaching to address Plaintiff’s shoulder

symptoms and exposure to environmental hazards such as moving machinery and slippery, wet and

uneven surfaces to address his balance symptoms (Tr. 19). Plaintiff has not shown any greater

limits were warranted.

The ALJ also provided a reasoned basis for her mental work capacity findings. The ALJ

sought the assistance of a medical expert, Michael Lace, Psy.D., to review the evidence of

Plaintiff’s mental impairments and assess any limits on mental work functioning (Tr. 22, referring

to Dr. Lace’s answers to interrogatories at Tr. 454-63). As the ALJ noted in her decision, Dr. Lace

assessed mild limits in the mental function areas of understanding, remembering, and carrying out

instructions; interacting appropriately with others; and adapting or managing oneself; and moderate

limits in concentration, persistence, or pace (Tr. 22, referring to Dr. Lace’s report at Tr. 455-56,

460). Dr. Lace cited specific medical records in support of his findings (Tr. 455-56, and 460,

referring to Exhibit 7 at Tr. 459). At the close of his report, Dr. Lace stated his opinion that

Plaintiff was limited to no fast-paced production activities (Tr. 463). The ALJ found Dr. Lace’s

medical source opinion was persuasive, and incorporated that limit into her mental functional

capacity finding (Tr. 19, 22). As the ALJ noted, no other physician of record assessed greater limits

than those the ALJ assessed based on Dr. Lace’s opinion (Tr. 22).

Plaintiff contests the ALJ’s mental work capacity finding, yet he offers no alternate opinion

or supported limits on mental work capacity that the ALJ failed to consider or that is supported by

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the record. To the extent the ALJ’s mental work capacity finding differed from that of Dr. Lace, the

ALJ added more limits, such as no tandem work assignments, no machine regulated work, and no

hourly production requirements (Tr. 19). These limits when presented to the vocational expert still

allowed performance of Plaintiff’s past work as a case worker and social services aide, as well as

156,000 representative jobs in the national economy as an information clerk, office helper and

routing clerk (Tr. 61-62). Plaintiff has failed to show what additional limits were supported by

record where the ALJ found more work limits than any of the physicians, including the

psychological medical expert who reviewed the entire record.

Furthermore, Plaintiff does not identify any medical source who limited his work capacity

beyond the limited range of light work that the ALJ found. The ALJ’s analysis of Plaintiff’s work

capacity was thorough and reasonably “reflects an adequate logical bridge from the evidence to the

conclusions.” Gedatus v. Saul, 994 F.3d 893, 900 (7th Cir. 2021).

Plaintiff asserts that the ALJ did not limit his capacity based on symptoms of headaches or

dizziness. However, the ALJ explained several factors she considered when assessing these

symptoms (Tr. 20-23). The ALJ noted Plaintiff’s various symptoms, including headaches and

dizziness, but noted a lack of corroboration in the medical records about these symptoms, such as

abnormal cranial nerves, photophobia symptoms, or observed imbalance due to dizziness (Tr. 21).

None of the treating, examining, or reviewing medical sources assessed limits based on headaches

or dizziness, and none suggested that Plaintiff would be off task or absent from work due to these

symptoms. The ALJ assessed limits against exposure to environmental hazards such as moving

machinery and exposure to wet, slippery or uneven surfaces to account for any headaches, dizziness

or balance concerns (Tr. 19).

Plaintiff contends that the ALJ erred because he did not include limits for being off task or

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absent from work due to headaches, but does not identify objective medical evidence to corroborate

such limits. Rather, in support of further limits, Plaintiff cites his own interpretation of Dr. Elliott’s

neuropsychological evaluation findings and his own subjective allegations of headaches, and

medical records in which Plaintiff complained of headache symptoms to his treatment providers.

But none of Plaintiff’s treatment providers limited his work capacity due to headaches or pain

complaints, nor has Plaintiff shown an objective basis for finding he would be absent from work or

off task for any specific amount of time during the workday due to headaches or dizziness.

Additionally, the state agency physician, Dr. Sands, considered Dr. Elliott’s evaluation and

Plaintiff’s complaints of headaches, yet did not limit Plaintiff to the degree that he alleged (Tr.

78-83).

Also, the ALJ added environmental hazard and no more than occasional overhead reaching

limits that accommodated Plaintiff’s balance and shoulder pain symptoms (Tr. 19). Again, Plaintiff

asserts more limits should have been assessed, namely against any overhead reaching, but does not

provide any objective medical source opinion that limited him to that degree. Rather, he cites his

own interpretation of the medical findings, and attempts to shift the burden of proving disability to

the ALJ. 20 C.F.R. § 404.1512(a); Karr v. Saul, 989 F.3d 508, 512-13 (7th Cir. 2021) (finding that

where plaintiff failed to present evidence supporting disabling functional limitations her appeal

“amounts to a failure of proof” because plaintiff “bears the burden of proving that she is

disabled.”). Clearly, the ALJ discussed Plaintiff’s various impairments at length and assessed

limits supported by the medical source opinions on work capacity, with added limits beyond those

opinions giving Plaintiff the benefit of the doubt (Tr. 19-23).

Moreover, the ALJ posed hypothetical questions to the vocational expert that exactly

matched all of the stated work limits in the ALJ’s residual functional capacity finding (Tr. 19,

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61-62). The vocational expert identified, as work Plaintiff could perform, Plaintiff’s past work as a

case worker and social services aide as well as significant numbers of jobs in the national economy

as an information clerk, office helper, and routing clerk (Tr. 23-24, referring to Tr. 62). Thus, the

ALJ reasonably found Plaintiff remained capable of performing his past work and in the

alternative, significant numbers of jobs despite the supported limits caused by his impairments. See

Johansen v. Barnhart, 314 F.3d 283, 288-89 (7th Cir. 2002). As the decision is supported by

substantial evidence, it must be affirmed.

Conclusion

On the basis of the foregoing, the decision of the Commissioner is hereby AFFIRMED.

Entered: August 25, 2023.

s/ William C. Lee

William C. Lee, Judge

United States District Court

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