The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DERRICK N. H.,1 )
)
Plaintiff, )
)
vs. ) Case No. 20-cv-124-MAB2
)
COMMISSIONER of SOCIAL )
SECURITY, )
)
Defendant. )
MEMORANDUM AND ORDER
BEATTY, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), Plaintiff, represented by counsel, seeks
judicial review of the final agency decision denying his application for Supplemental
Security Income (SSI) benefits pursuant to 42 U.S.C. § 423.
PROCEDURAL HISTORY
Plaintiff applied for disability benefits in November 2016, alleging disability as of
July 8, 2016. After holding an evidentiary hearing, an ALJ denied the application on
February 12, 2019. (Tr. 15-24). The Appeals Council denied review, and the decision of
the ALJ became the final agency decision. (Tr. 1). Administrative remedies have been
exhausted and a timely complaint was filed in this Court.
1 In keeping with the court’s practice, Plaintiff’s full name will not be used in this Memorandum and Order
due to privacy concerns. See Fed. R. Civ. P. 5.2(c) and the Advisory Committee Notes thereto.
2 This case was assigned to the undersigned for final disposition upon consent of the parties pursuant to 28
U.S.C. §636(c). See, Docs. 10 & 11.
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ISSUES RAISED BY PLAINTIFF
Plaintiff raises the following points:
1. The ALJ failed to properly evaluate residual functional capacity (RFC).
2. The ALJ failed to properly evaluate Step 2 of the sequential evaluation.
APPLICABLE LEGAL STANDARDS
To qualify for SSI, a claimant must be disabled within the meaning of the
applicable statutes and regulations. Under the Social Security Act, a person is disabled if
he has an “inability to 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).
To determine whether a plaintiff is disabled, the ALJ considers the following five
questions in order: (1) Is the plaintiff presently unemployed? (2) Does the plaintiff have
a severe impairment? (3) Does the impairment meet or medically equal one of a list of
specific impairments enumerated in the regulations? (4) Is the plaintiff unable to perform
his former occupation? and (5) Is the plaintiff unable to perform any other work? 20 C.F.R.
§ 404.1520.
An affirmative answer at either Step 3 or Step 5 leads to a finding that the plaintiff
is disabled. A negative answer at any step, other than at Step 3, precludes a finding of
disability. The plaintiff bears the burden of proof at Steps 1–4. Once the plaintiff shows
an inability to perform past work, the burden then shifts to the Commissioner to show
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the plaintiff’s ability to engage in other work existing in significant numbers in the
national economy. Zurawski v. Halter, 245 F.3d 881, 886 (7th Cir. 2001).
It is important to recognize that the scope of review is limited. “The findings of the
Commissioner of Social Security as to any fact, if supported by substantial evidence, shall
be conclusive. . . .” 42 U.S.C. § 405(g). Thus, this Court must determine not whether
Plaintiff was, in fact, disabled at the relevant time, but whether the ALJ’s findings were
supported by substantial evidence and whether any errors of law were made. Lopez ex rel.
Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003). The Supreme Court defines substantial
evidence as, “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (internal citations
omitted).
In reviewing for “substantial evidence,” the entire administrative record is taken
into consideration, but this Court does not reweigh evidence, resolve conflicts, decide
questions of credibility, or substitute its own judgment for that of the ALJ. Burmester v.
Berryhill, 920 F.3d 507, 510 (7th Cir. 2019). However, while judicial review is deferential,
it is not abject; this Court does not act as a rubber stamp for the Commissioner. See Parker
v. Astrue, 597 F.3d 920, 921 (7th Cir. 2010), and cases cited therein.
THE DECISION OF THE ALJ
The ALJ followed the five-step analytical framework described above. She
determined that Plaintiff has not engaged in substantial gainful activity since November
15, 2016, the application date.
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The ALJ found that Plaintiff had severe impairments of peripheral vascular
disease; status post bilateral lower extremity stent placement; and status post left
calcaneus fracture.
The ALJ found that Plaintiff does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed impairments
in 20 C.F.R. Part 404, Subpart P, Appendix 1.
The ALJ found that Plaintiff had the residual functional capacity (RFC) to,
“perform sedentary work…except the claimant must never climb ladders, ropes, of[sic]
scaffolds; can occasionally climb ramps and stairs; can occasionally crouch and crawl;
and must never work at unprotected heights, around moving mechanical parts or other
such hazards.” (Tr. 19).
Based on the testimony of a vocational expert (VE), the ALJ concluded that
Plaintiff was unable to do his past work yet concluded there are jobs that exist in
significant numbers in the national economy that Plaintiff can perform.
THE EVIDENTIARY RECORD
The Court reviewed and considered the entire evidentiary record in preparing this
Memorandum and Order. The following summary of the record is directed to Plaintiff’s
arguments.
1. Agency Forms
Plaintiff was born in 1969 and was 49 years old on the date of the ALJ’s decision.
(Tr. 172). Plaintiff said he stopped working in January 2010 for reasons other than his
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impairments. Plaintiff said, “I was fired. A lot of things went wrong and they jsut[sic]
released me.” Despite this, Plaintiff said he believes his conditions became severe enough
in January 2015 to stop working. He previously worked in maintenance from 2001 to 2006
and 2008 to 2010. (Tr. 166-67).
In a Function Report submitted in May 2017, Plaintiff said he likes to fish, but he
cannot stand walking up and down all the hills around the lake. Plaintiff said he cannot
participate in any sports and cannot walk longs periods to exercise. Plaintiff said his
conditions affect his lifting, standing, walking, stair climbing, and use of his hands.
Plaintiff is left-handed. Plaintiff indicated he can walk about a quarter of a mile before
needing to rest. (Tr. 220-21).
2. Evidentiary Hearing
Plaintiff was represented by an attorney at the evidentiary hearing in November
2018. (Tr. 32). Plaintiff said he was sitting the majority of the time because he cannot stand
on his legs for long periods of time. Plaintiff indicated he had a fairly serious injury to his
heel. It is also worth noting Plaintiff used a cane at the evidentiary hearing. (Tr. 38).
A vocational expert (VE) testified at the hearing. The ALJ presented hypotheticals
to the VE which corresponded to the ultimate RFC findings, and the VE testified that a
person with Plaintiff’s RFC could not perform his past work. The VE testified this person
could do jobs such as a ticket taker, a circuit board touch-up worker, and an optical good
assembler. (Tr. 43-44).
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3. Relevant Medical Records
Plaintiff presented to Memorial Hospital’s Emergency Department on November
7, 2017, after cutting his middle three fingers with a table saw. (Tr. 780). A physical
examination revealed Plaintiff had lacerations to the second through fourth digits. Plans
included pain medications, an x-ray, and a follow-up appointment. (Tr. 782). The
impression was, “Laceration of hand with complication, Open finger fracture.” (Tr. 783).
Plaintiff underwent an x-ray of his left hand, and the impression was, “1. Comminuted,
displaced fracture of the mid/distal second distal phalanx. No apparent DIP joint
involvement. 2. Tiny fracture fragment of the dorsal tip of the fourth distal phalanx.” (Tr.
837).
Plaintiff underwent an ankle x-ray on April 27, 2018, and the impression was, “1.
There is a highly comminuted mildly to moderately displaced fracture seen throughout
the cuboid3 as above.” (Tr. 828). Plaintiff also underwent a foot x-ray, and the impression
was, “1. There is a highly comminuted mild to moderately displaced fracture seen
diffusely of the calcaneus4.” (Tr. 830).
Plaintiff presented to Justin Colanese, an orthopedic foot and ankle surgery
specialist, on May 2, 2018, reporting being diagnosed with a calcaneus fracture after
falling while trimming trees. A physical examination revealed Plaintiff’s left foot was
3 Cuboid refers to, “the outermost bone in the distal row of tarsal bones of many higher vertebrates.”
https://www.merriam-webster.com/dictionary/cuboid, visited on September 24, 2020.
4 Calcaneus refers to, “bone.” https://medical-dictionary.thefreedictionary.com/calcaneus, visited on
September 24, 2020.
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moderately swollen; had mild planus deformity bilaterally; had mild ecchymosis5; had
tenderness to palpation with calcaneal squeeze; and had limited inversion and eversion
range of motion. Regarding imaging, Dr. Colanese said:
Imaging of his left foot and heel show an intra-articular calcaneus fracture,
there is loss of height, Boehler’s angle measures -4 degrees, [unrecognizable
text] lateral wall blowout, no major varus or valgus, and intra-articular the
posterior facet with several fragments and mild displacement intra-
articularly.
(Tr. 853). The assessment included heel pain and closed displaced fracture of body of left
calcaneus, and plans included non-surgical treatment due to comorbidities and high risks
for wound healing complications. (Tr. 854).
Plaintiff underwent a heel x-ray on May 2, 2018, and the impression was,
“Comminuted depressed intrarticular acute left calcaneus fracture.” (Tr. 826).
Plaintiff presented to Miguel Granger, a family medicine specialist, on May 10,
2018, reporting a fracture and heel pain. (Tr. 873, 876). The assessment included fracture
of calcaneus, and plans included medications. (Tr. 877).
Plaintiff presented to Dr. Colanese on May 31, 2018, for a follow-up on his ankle
injury. Plaintiff reported ankle stiffness and pain. A physical examination revealed some
deformity with loss of heel height; improved swelling; evidence of resolving fracture
blisters; no tenderness to palpation medially or laterally; tenderness directly under the
plantar aspect of the foot; and diminished pulses. Dr. Colanese said, “Calcaneal views
5 Ecchymosis refers to, “a hemorrhagic spot, larger than a petechia, in the skin or mucous membrane,
forming a flat, rounded or irregular, blue or purplish patch.” https://medical-
dictionary.thefreedictionary.com/ecchymosis, visited on September 24, 2020.
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redemonstrate the intra-articular calcaneus fracture with joint depression, lateral wall
blowout, there appears to be some increased loss of height compared to prior films.” Dr.
Colanese noted there was not much evidence of healing on the radiographs that day. The
assessment included closed displaced fracture of body of left calcaneus with routine
healing, and plans included continuing with nonoperative treatment, non-weightbearing
precautions, pain medications, and follow-up appointments. (Tr. 850-51).
Plaintiff underwent a heel x-ray on May 31, 2018, and the impression was,
“Redemonstrated intrarticular left calcaneus fracture, with minimal interval healing, and
mild increase in fracture displacement and impaction.” (Tr. 825).
Plaintiff underwent a foot x-ray on June 2, 2018, and the impression was, “No
change in the comminuted intra-articular displaced calcaneus fracture.” (Tr. 834).
Plaintiff underwent a heel x-ray on June 28, 2018, and the impression was,
“Redemonstrated intra-articular comminuted calcaneus fracture with impaction, further
loss of height and increased calcaneal widening compared to previous view, early
healing.” (Tr. 823).
Plaintiff presented to Dr. Colanese on June 29, 2018, for a follow-up of his left heel.
Although Plaintiff was instructed to wear a boot without weight-bearing, Plaintiff had
been putting some weight on his foot and still had pain and swelling. A physical
examination revealed mild swelling, planovalgus6 deformity, continued loss of heel
6 Planovalgus refers to, “A condition in which the longitudinal arch of the foot is flattened and the hindfoot
is everted.” https://medical-dictionary.thefreedictionary.com/planovalgus, visited on September 24,
2020.
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height, pain with calcaneal squeeze, tenderness palpation plantarly, and diminished
pulses. Dr. Colanese said, “Repeat imaging of his right heel taken today redemonstrates
intra-articular calcaneus fracture with joint depression, lateral wall blowout, and
compared to previous views continues to lose height of his heel and increase in infection.
No definitive union.” The assessment included closed displaced fracture of body of left
calcaneus with routine healing, and plans included pain medications. (Tr. 847-48).
Plaintiff underwent a heel x-ray on June 29, 2018, and Dr. Colanese said:
He has been noncompliant with nonweightbearing precautions, fracture is
not united, continues to lose some height of his calcaneus. Lateral
impingement, subtalar arthritis, anterior ankle impingement are all likely
outcomes. For now, he is going to use crutches, continues with CAM boot,
and remain nonweightbearing.
(Tr. 848).
Plaintiff presented to Dr. Granger on July 6, 2018, reporting left heel pain, wearing
a boot, and pain with prolonged walking. (Tr. 870, 872). The assessment included fracture
of calcaneus, and plans included medications. (Tr. 873).
4. Medical Opinions
James Madison, a state agency medical consultant, performed a Physical Residual
Functional Capacity Assessment on March 15, 2017. Dr. Madison said Plaintiff could
occasionally lift and/or carry twenty pounds; frequently lift and/or carry ten pounds;
stand and/or walk about six hours in an eight-hour work day; sit about six hours in an
eight-hour work day; and push and/or pull without limitations other than shown for
lifting and/or carrying. (Tr. 53).
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Julio Pardo, a state agency medical consultant, also performed a Physical Residual
Functional Capacity Assessment and concluded the same on June 5, 2017. (Tr. 64).
ANALYSIS
First, Plaintiff argues the ALJ erred by basing the RFC assessment on the opinions
from the state agency medical consultants who had not reviewed later medical evidence
and by determining the significance of those reports herself.
It is not error to rely on state agency opinions simply because they did not review
later imaging. See Scheck v. Barnhart, 357 F.3d 697, 702 (7th Cir. 2004). However, an ALJ
should not “rely on an outdated assessment if later evidence containing new, significant
medical diagnoses reasonably could have changed the reviewing physician’s opinion.”
Moreno v. Berryhill, 882 F.3d 722, 728 (7th Cir. 2018). Here, over a year passed between the
March and June 2017 medical opinions and the additional medical records and x-rays
that accumulated regarding Plaintiff’s heel fracture. This passage of time allowed for
many new, significant medical observations and diagnoses, as suggested in Moreno, and
could have changed a reviewing medical opinion. That alone has the potential to change
the outcome of a case. Therefore, the Court agrees with Plaintiff’s argument here.
Plaintiff argues the ALJ erred by dismissing the June 2018 x-rays’ results of
Plaintiff’s heel fracture by saying, “this impairment appears to be healing with minimal
treatment.” (Tr. 21). This Court cannot entirely say the ALJ independently interpreted the
x-ray results because the June 28, 2018, x-ray impression said, “early healing” at Tr. 823,
and Dr. Colanese’s assessment the next day included, “closed displaced fracture of body
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of left calcaneus with routine healing” at Tr. 847. Therefore, this Court cannot agree with
Plaintiff that the ALJ independently interpreted the x-ray evidence.
In McHenry v. Berryhill, the court decided the ALJ erred by interpreting an MRI
himself rather than having a doctor explain the significance. 911 F.3d 866, 871 (7th Cir.
2018). The facts in McHenry can be compared to the ones at hand. In McHenry, the ALJ
independently compared MRI results with prior medical records to decipher whether the
impairments “actually existed at the same or similar level.” Id. Here, the ALJ relied on
the x-ray impression and Dr. Colanese’s assessment when describing the heel fracture as
healing. There is no error or mischaracterization of the results when an ALJ simply
paraphrases findings straight from the x-ray report itself. However, there is error when
the ALJ fails to acquire further medical opinions as described above.
Second, and piggy-backing off of Plaintiff’s argument above, Plaintiff argues the
ALJ failed to fully and fairly develop the record. To support this assertion, Plaintiff argues
that the ALJ failed to ask Plaintiff detailed questions at the evidentiary hearing regarding
his heel fracture and failed any attempt to update the medical evidence, by way of a
medical opinion, through November 2018 to determine the extent of the heel damage.
An ALJ has an independent duty to develop the record fully and fairly. 20 C.F.R.
§ 404.1512(b). “Social Security proceedings are inquisitorial rather than adversarial. It is
the ALJ’s duty to investigate the facts and develop the arguments both for and against
granting benefits [internal citation omitted].” Sims v. Apfel, 120 S. Ct. 2080, 2085 (2000).
An ALJ satisfies their duty to develop the record when the ALJ investigates for possible
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disabilities and discovers all relevant evidence. Jozefyk v. Berryhill, 923 F.3d 492, 497 (7th
Cir. 2019). To prove the ALJ failed, “the claimant must point to specific, relevant facts that
the ALJ did not consider.” Id.
Defendant attempts to negate Plaintiff’s argument simply because Plaintiff was
represented by an attorney at the hearing. However, Defendant’s argument fails. At the
evidentiary hearing, the ALJ said Plaintiff’s attorney indicated, “he’s not aware of any
other evidence that’s relevant to this case…” (Tr. 34). Also, the only mention of Plaintiff’s
heel fracture was by Plaintiff’s attorney when examining Plaintiff at the hearing. (Tr. 38).
The ALJ did not ask Plaintiff any questions concerning his heel fracture. In fact, Plaintiff’s
attorney was the only one that did. The ALJ asked some questions but did not investigate
into Plaintiff’s medical impairments. Despite Plaintiff’s attorney asking questions and
despite the ALJ’s examination of the VE, the ALJ still had a duty to compile a complete
record. What is most concerning is the ALJ’s failure to inquire about Plaintiff’s medical
impairments and the ALJ’s failure to request up-to-date state agency medical opinions
following Plaintiff’s heel fracture.
The unfortunate result was a gap in the record regarding further medical evidence
and opinions. An ALJ’s decision must be supported by substantial evidence, and the
ALJ’s discussion of the evidence must be sufficient to “provide a ‘logical bridge’ between
the evidence and his conclusions.” Terry v. Astrue, 580 F.3d 471, 475 (7th Cir.
2009)(internal citations omitted). Here, there is simply not that logical bridge between the
evidence and the ALJ’s conclusions.
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Third, Plaintiff argues the ALJ erred in not identifying the results of his table saw
accident, “status-post partial amputation of the second through fourth digits of the left
hand,” as a severe impairment at Step 2. (Tr. 18). Plaintiff acknowledges that a failure to
find an impairment as “severe” during Step 2 can be harmless error, but Plaintiff alleges
that the ALJ failed to consider the combined effects of Plaintiff’s impairments which
changed the outcome of the case.
The failure to designate status-post partial amputation of the second through
fourth digits of the left hand as a severe impairment, by itself, is not an error requiring
remand. At Step 2 of the sequential analysis, the ALJ must determine whether the
claimant has one or more severe impairments. This is only a “threshold issue,” and, as
long as the ALJ finds at least one severe impairment, she must continue with the analysis.
And, at Step 4, she must consider the combined effect of all impairments, severe and non-
severe. Therefore, a failure to designate a particular impairment as “severe” at Step 2 does
not matter to the outcome of the case as long as the ALJ finds that the claimant has at least
one severe impairment. See Arnett v. Astrue, 676 F.3d 586, 591 (7th Cir. 2012) (citing Castile
v. Astrue, 617 F.3d 923, 927-928 (7th Cir. 2010)).
The ALJ found Plaintiff had the severe impairments of peripheral vascular disease;
status post bilateral lower extremity stent placement; and status post left calcaneus
fracture. It is true that regardless of the designation of impairments as severe, the ALJ is
still required to consider the combined effects of all impairments in determining
Plaintiff’s RFC. “When assessing if a claimant is disabled, an ALJ must account for the
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combined effects of the claimant's impairments, including those that are not themselves
severe enough to support a disability claim.” Spicher v. Berryhill, 898 F.3d 754, 759 (7th
Cir. 2018).
This Court does not find Plaintiff’s argument persuasive here. Plaintiff does not
claim, for example, that there are a multitude of medical records to support a heavier
discussion of his finger condition in relation to his other impairments. Plaintiff simply
points to the existence of his condition and how the ALJ did not ask the VE whether a
fingering issue would impact Plaintiff’s ability to perform sedentary jobs. Plaintiff
indicated that each of the jobs the ALJ found Plaintiff could perform require fingering.
However, Plaintiff has failed to identify any evidence demonstrating his inability to
finger. Additionally, the ALJ addressed Plaintiff’s partial-amputation issue at Tr. 18.
Plaintiff is simply reaching by employing a “reasonable person” standard and declaring
he has an impairment with fingering simply due to his table saw accident. Ultimately,
this argument is not persuasive and lacks support in the record.
This Memorandum and Order should not be construed as an indication that the
Court believes Plaintiff was disabled during the relevant period or that he should be
awarded benefits. On the contrary, the Court has not formed any opinions in that regard
and leaves those issues to be determined by the Commissioner after further proceedings.
CONCLUSION
The Commissioner’s final decision denying Plaintiff’s application for social
security disability benefits is REVERSED and REMANDED to the Commissioner for
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rehearing and reconsideration of the evidence, pursuant to sentence four of 42 U.S.C.
§405(g).
The Clerk of Court is directed to enter judgment in favor of Plaintiff.
IT IS SO ORDERED.
DATED: September 25, 2020
/s/ Mark A. Beatty
MARK A. BEATTY
United States Magistrate Judge
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