Sullenger v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

TRACEY S.1, )

)

Plaintiff, )

)

v. ) Case No. 2:19-cv-98

)

ANDREW M. SAUL, )

Commissioner of Social Security, )

)

Defendant. )

OPINION AND ORDER

This matter is before the court on petition for judicial review of the decision of the

Commissioner filed by the plaintiff, Tracey S., on March 12, 2019. For the following reasons,

the decision of the Commissioner is REMANDED.

Background

The plaintiff, Tracey S., filed an application for Disability Insurance Benefits on July 5,

2015,alleging a disability onset date of November 12, 2012. (Tr. 15). The Disability

Determination Bureau denied Tracey S.’s application initially onNovember 9, 2015, and again

uponreconsideration on May 19, 2016. (Tr. 15). Tracey S. subsequently filed a timely request

for a hearing on June 3, 2016. (Tr. 15). Avideo hearing was held on November 28, 2017,

before Administrative Law Judge (ALJ) Mario Silva, and the ALJ issued an unfavorable decision

onMay 2, 2018. (Tr. 15-27). Vocational Expert (VE) Tricia Muthappearedat the hearing. (Tr.

15). The Appeals Council denied review making the ALJ’s decision the final decision of the

Commissioner. (Tr. 1-3).

Tracey S. last met the insured status requirement of the Social Security Act on March 31,

1To protect privacy, the plaintiff’s full name will not be used in this Order.

2018. (Tr. 17). At step one of the five-step sequential analysis for determining whether an

individual is disabled, the ALJ found that Tracey S. had not engaged in substantial gainful

activity since February 25, 2015,the alleged onset date, through March 31, 2018,the date last

insured. (Tr. 17).

At step two, the ALJ determined that Tracey S. had the following severe impairments:

lumbar degenerative disc disease with sciatica, fatty liver, poly-arthritis, inflammatory arthritis,

right shoulder degenerative joint disease, obesity, hypertension, cardiac arrhythmia, mild

degenerativechanges of the right ankle, and right foot mild hallux valgus deformity with bunion

formation. (Tr. 18). The ALJ found that these severe impairments significantly limited Tracey

S.’s ability to perform basic work activities. (Tr. 18).

The ALJ determined that Tracey S.’smedically determinablemental impairment of

anxiety disorder did not cause more than a minimal limitation on her ability to perform basic

mental work activities, and therefore was non-severe. (Tr. 18). In making this finding, the ALJ

considered the paragraph B criteria for mental impairments, which required at least one extreme

or two marked limitations in a broad area of functioningwhichinclude:

understanding, remembering, or applyinginformation; interacting

with others; concentrating, persisting, or maintaining pace; and

adapting or managing oneself.

(Tr.18).

The ALJ found that Tracey S. had mild limitations in understanding, remembering, or

applying information; no limitationsin interacting with others; mild limitations in concentrating,

persisting, or maintaining pace; and no limitations adapting or managing herself. (Tr. 18). The

ALJ indicated that because Tracey S.’s mental impairment caused no more than “mild”

limitationsin any of the functional areas it was non-severe. (Tr. 18).

At step three, the ALJ concluded that Tracey S. did not have an impairment or

combination of impairments that met or medically equaled the severity of one of the listed

impairments in 20 CFR Part 404, Subpart P, Appendix 1. (Tr. 19). The ALJ determinedthat

Tracey S.’s impairments, considered singly and in combination, did not meet or medically equal

the criteria in listings 1.02, 1.04, 4.05, and 14.09. (Tr. 19). The ALJ alsoindicated that he

considered Tracey S.’s obesity and any additional and cumulative effects related to her obesity.

(Tr. 19).

After consideration of the entire record, the ALJ then assessed Tracey S.’s residual

functional capacity (RFC) as follows:

[T]he claimant had the residual functional capacity to perform

sedentary work as defined in 20 CFR 404.1567(a) except the

claimant can lift up to 20 pounds occasionally, lift and carry 10

pounds frequently. The claimant can sit for up to 6 hours in an 8-

hour workday but can only stand/walk for 2 hours in an 8-hour

workday. The claimant can never climb ladders, ropes, or scaffolds

but can occasionally climb ramps or stairs, balance, stoop, kneel,

crouch, and crawl. The claimant can do more than occasional

overhead reachingwith the right upper extremity. The claimant can

do frequent but not constant handling and fingering. The claimant

is to avoid all exposure to unprotected heights and is limited to no

more than moderate exposure to environmental irritants such as

fumes, odors, dusts, or gases. The claimant is unable to engage in

jobs that require the operation of foot controls with either the right

or left foot. The claimant is limited to work that can be performed

on even terrain.

(Tr. 20). The ALJ explained that in considering Tracey S.’s symptoms he followed a two-step

process. (Tr. 20). First, he determined whether there was an underlying medically determinable

physical or mental impairment that was shown by a medically acceptable clinical or laboratory

diagnostic technique that reasonably could be expected to produce Tracey S.’s pain or other

symptoms. (Tr. 20). Then he evaluated the intensity, persistence, and limiting effects of the

symptoms to determine the extent to which they limited Tracey S.’s functioning. (Tr.20).

The ALJ found that after considering the evidenceTracey S.’smedically determinable

impairments reasonably could be expected to produce her alleged symptoms. (Tr. 21).

However,her statements concerning the intensity, persistence, and limiting effects of her

symptoms were not entirely consistent with the medical evidence and other evidence in the

record. (Tr. 21). The ALJ noted that Tracey S.’s statements about the intensity, persistence, and

limiting effects of her symptoms were inconsistent because the record showed treatment for her

conditions but not limitations to the extent that she had alleged. (Tr. 21).

At step four, the ALJ determined that Tracey S.was unable to perform any past relevant

work. (Tr. 25). Considering Tracey S.’s age, education, work experience, and RFC, the ALJ

concluded that there were jobs in the national economy that she could perform, includingorder

clerk(18,000 jobs nationally), charge account clerk (15,000 jobs nationally), and document

preparer (91,000 jobs nationally). (Tr. 26). TheALJ found that Tracey S.had not been under a

disability, as defined in the Social Security Act, from February 24, 2015, the alleged onset date,

through March 31, 2018, the date last insured. (Tr. 27).

Discussion

The standard for judicial review of an ALJ’s finding that a claimant is not disabled within

the meaning of the Social Security Act is limited to a determination of whether those findings are

supported by substantial evidence. 42 U.S.C. §405(g) (“The findings of the Commissioner of

Social Security, as to any fact, if supported by substantial evidence, shall be conclusive.”);

Moore v. Colvin,743 F.3d 1118, 1120–21 (7th Cir. 2014); Bates v. Colvin, 736 F.3d 1093, 1097

(7th Cir. 2013) (“We will uphold the Commissioner’s final decision if the ALJ applied the

correct legal standards and supported her decision with substantial evidence.”). Courts have

defined substantial evidence as “such relevant evidence as a reasonable mind might accept to

support such a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28

L. Ed. 2d 852 (1972) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206,

217, 83 L. Ed. 2d 140 (1938)); see Bates, 736 F.3d at 1098. A court must affirm an ALJ’s

decision if the ALJ supportedhis findings with substantial evidence and if there have been no

errors of law. Roddy v. Astrue,705 F.3d 631, 636 (7th Cir. 2013) (citations omitted). However,

“the decision cannot stand if it lacks evidentiary support or an adequate discussion of the issues.”

Lopez ex rel.Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003).

Disability insurance benefits are available only to those individuals who can establish

“disability” under the terms of the Social Security Act. The claimant must show that she is

unable “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 12 months.” 42 U.S.C.

§423(d)(1)(A). The Social Security regulations enumerate the five-step sequential evaluation to

be followed when determining whether a claimant has met the burden of establishing disability.

20 C.F.R. § 404.1520. The ALJ first considers whether the claimant is presently employed and

“doing . . . substantial gainful activity.” 20 C.F.R. § 404.1520(b). If she is, the claimant is not

disabled and the evaluation process is over. If she is not, the ALJ next addresses whether the

claimant has a severe impairment or combination of impairments that “significantly

limits ...physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c);see

Williams v. Colvin, 757 F.3d 610, 613 (7th Cir. 2014) (discussing that the ALJ must consider the

combined effects of the claimant’s impairments). Third, the ALJ determines whether that severe

impairment meets any of the impairments listed in the regulations. 20 C.F.R. § 401, pt. 404,

subpt. P, app. 1. If it does, then the impairment is acknowledged by the Commissioner to be

conclusively disabling. However, if the impairment does not so limit the claimant’s remaining

capabilities, the ALJ reviews the claimant’s “residual functional capacity” and the physical and

mental demands of her past work. If, at this fourth step, the claimant can perform her past

relevant work, she will be found not disabled. 20 C.F.R. § 404.1520(e). However, if the

claimant shows that her impairment is so severe that she is unable to engage in her past relevant

work, then the burden of proof shifts to the Commissioner to establish that the claimant, in light

of her age, education, job experience, and functional capacity to work, is capable of performing

other work and that such work exists in the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R.

§ 404.1520(f); see Biestek v. Berryhill,139 S. Ct. 1148 (2019) (upon the disability benefits

applicant’s request, vocational expert's refusal to provide the private market-survey data

underlying her opinion regarding job availability does not categorically preclude the expert's

testimony from counting as “substantial evidence” but, instead, the inquiry is case-by-case).

Tracey S.has requested that the court reverse the ALJ’s decision and award benefits, or

in the alternative, remand this matter for additional proceedings. In her appeal, Tracey S.has

argued that: (1) the ALJ erred in assessing the RFC; and (2) the ALJ erred in assessingher

subjective symptoms pursuant to SSR 16-3p.

“The RFC is an assessment of what work-related activities the claimant can perform

despite his limitations.” Young v. Barnhart,362 F.3d 995, 1000 (7th Cir. 2004); see 20 C.F.R.

§ 404.1545(a)(1)(“Your residual functional capacity is the most you can still do despite your

limitations.”); SSR 96-8p, at *2 (“RFC is an administrative assessment of the extent to which an

individual’s medically determinable impairment(s), including any related symptoms, such as

pain, may cause physical or mental limitations or restrictions that may affect his or her capacity

to do work-related physical and mental activities.”). The RFC is based upon medical evidence—

including statements from medical sources about what the claimant still can do—as well as

“other evidence, such as testimony by the claimant or his friends and family.” Craft v. Astrue,

539 F.3d 668, 676 (7th Cir. 2008); 20 C.F.R. § 404.1545(a)(3).

SSR 96-8p explains how an ALJ should assess a claimant’s RFC at steps four and five of

the sequential evaluation. In a section entitled, “Narrative Discussion Requirements,” SSR 96-

8p specifically spells out what is needed in the ALJ’s RFC analysis. This section of the Ruling

provides:

The RFC assessment must include a narrative discussion describing how the

evidence supports each conclusion, citing specific medical facts (e.g.,

laboratory findings) and nonmedical evidence (e.g., daily activities,

observations). In assessing RFC, the adjudicator must discuss the

individual’s ability to perform sustained work activities in an ordinary work

setting on a regular and continuing basis (i.e., 8 hours a day, for 5 days a

week, or an equivalent work schedule), and describe the maximum amount

of each work-related activity the individual can perform based on the

evidence availablein the case record. The adjudicator must also explain how

any material inconsistencies or ambiguities in the evidence in the case record

were considered and resolved.

SSR 96-8p (footnote omitted). Thus, as explained in this section of the Ruling, there is a

difference between what the ALJ must contemplate and what he must articulate in hiswritten

decision. “The ALJ is not required to address every piece of evidence or testimony presented,

but he must provide a ‘logical bridge’ between the evidence and his conclusions.” Getch v.

Astrue,539 F.3d 473, 480 (7th Cir. 2008) (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir.

2000)); see Moore v. Colvin, 743 F.3d 1118, 1123 (7th Cir. 2014). Although the ALJ does not

need to discuss every piece of evidence, he cannot ignore evidence that undermines his ultimate

conclusions. Moore,743 F.3d at 1123 (“The ALJ must confront the evidence that does not

support his conclusion and explain why that evidence was rejected.”) (citing Terry v. Astrue, 580

F.3d 471, 477 (7th Cir. 2009); Myles v. Astrue, 582 F.3d 672, 678 (7th Cir. 2009); Arnett v.

Astrue, 676 F.3d 586, 592 (7th Cir. 2012)). “A decision that lacks adequate discussion of the

issues will be remanded.” Moore, 743 F.3dat 1121.

Tracey S. has presented multiple challenges tothe ALJ’s RFC assessment. First, shehas

argued that the ALJ erred in failing to limit her to work that involved no stooping. The ALJ

found that Tracey S. occasionally could balance, stoop, kneel,crouch, and crawl. (Tr. 20). In

October of 2015, a consultative examination was performed by Dr. J.Smejkal, M.D., who

reported that Tracey S. was unable to stoop and squat. (Tr. 23). The ALJ foundthat the

treatment record did not indicate an inability to stoop or squat. (Tr. 24). Therefore,he assigned

no weight toDr. Smejkal’s conclusionthat Tracey S. was unable to stoop. (Tr. 24).

Tracey S. contends that the ALJ has failed to identify any treatment note that measured

her ability to stoop. She asserts that while the ALJ indicated that the record generally supported

his determination that she could occasionally, as opposed to never, stoop, the ALJ cited no actual

evidence in support. Moreover, Tracey S. contends that the ALJ’s failure to include a limitation

that precluded her from stooping was not harmless because the VE may have testified thatthere

were nojobs that she could perform.

However, the court finds that any error by the ALJ for failing to limit Tracey S. to work

that involved no stoopingwas harmless. See Lemke v. Berryhill,2017 WL 3169060, at *2

(W.D. Wis. July 26, 2017); Jordan v. Astrue,2009 WL 3053715, at *15 (S.D. Ind. Sept. 18,

2009); see alsoParker v. Astrue,597 F.3d 920, 924 (7th Cir. 2010) (explaining harmless error

exception to Chenery doctrine). Based on information in the Dictionary of Occupational Titles,

none of the jobs proposed by the VE required any stooping. The positions of charge account

clerk, order clerk, document preparer all list “not present”for stooping. See DICOT 205.367-

014,209.567-014,249.587-018. Therefore, even if the ALJ had limited Tracey S. to no

stooping, hestill would have found her not disabled.

Next, Tracey S. has argued that the ALJ failed to explain if or how he accounted for her

significantly reduced grip strength in assessing the RFC. At the consultative examination, Dr.

Smejkal using Dynamometer testing found thatTracey S. was able to generate 12.1 kilograms of

force using both her right and left hand. (Tr. 367). Tracey S. contends that the ALJ overlooked

these objectively abnormal findings of diminished grip strength. She asserts that the ALJ instead

relied on the contrary portion of Dr. Smejkal’s opinionthat reportedthat she had normal grip

strength at 5/5 bilaterally. (Tr. 367). Tracey S. contends that given thetestresults, coupled with

evidence of pain, swelling, and numbness in her hands, the ALJ erred by limitingher to frequent

handling and fingering rather than occasional,or even less-than-occasional,handling and

fingering.

The Commissioner asserts that the evidence didnot support Tracey S.’s allegations that

she hadsignificantly diminished grip strength. In the decision, the ALJ supportedthe RFC

limitation to frequent handlingbynoting Dr. Smejkal’s evaluation. Dr. Smejkal reported that

Tracey S.’s strength was 5/5 in all upper major muscle groups. (Tr. 367). Dr. Smejkal also

reported that Tracey S. had no erythema, warmth, or swelling bilaterally in the hands and no

heberden nodes. (Tr. 367). Dr. Smejkal found that TraceyS. had normal grip strength at 5/5

bilaterally with good fine finger manipulative abilities, including the ability to button, zip, and

pick up coins. (Tr. 367). The ALJ also explainedthat he found the record supported Dr.

Subramaniam Krishnamurthi’s opinion that “handling and fingering are limited to frequent use.”

(Tr. 25). The ALJ indicated that Dr. Krishnamurthi’s evaluation with respect to handling and

fingering was persuasive as it was expressed in terms consistent with the DOT andconsidered all

of the evidence available as of the date he submitted the report. (Tr. 24-25).

The problem with Tracey S.’s argument is that even if the Dynamometer results reflected

diminished grip strength, Dr. Smejkal’s report reflected “normal grip strength at 5/5 bilaterally.”

(Tr. 367). This court does not have the requisite medical expertise tointerpret the test results and

rewrite Dr. Smejkal’s medical report. Furthermore, the ALJ has relied on substantial evidenceto

support the limitation for frequent handling and fingering found in the RFC.

Furthermore,Tracey S. has argued that the ALJ erred in failing to consider her obesity in

combination with her other impairments in the RFC discussion. At step two, the ALJ found that

Tracey S. had the following severe impairments: lumbar degenerative disc disease with sciatica,

fatty liver, poly-arthritis, inflammatory arthritis, right shoulder degenerative joint disease,

obesity, hypertension, cardiac arrhythmia, mild degenerative changes of the right ankle, and right

foot mild hallux valgus deformity with bunion formation. (Tr. 18). TheALJ has acknowledged

Tracey S.’s obesity as a severe impairment. Tracey S. testified that she was 5’8 and weighed 380

pounds, giving her a body mass index of 42.6. (Tr. 19).

At step three, the ALJ indicated that “[i]n evaluating [Tracey S.’s] combination of

impairments,[he] ha[d]assessed [her] obesity in considering any additional and cumulative

effects related to obesity.” (Tr.19). Clearly, however, a boilerplate statement that Tracey S.’s

obesitywas considered in combination with herother impairments is not an adequate

explanation. See Parker v. Colvin,2016 WL 4435622 *4 (N.D. Ind. 2016) (“remanding where

the ALJ made the single statement that “the claimant's obesity was considered in relation so the

musculoskeletal, respiratory, and cardiovascular body systems listings as required by the Ruling”

and limited Plaintiff to light work with postural limitations. However, the ALJ did not create a

logical bridge from the bare statement that he considered Plaintiff's obesity in combination with

other limitations and what specific conclusions he came to regarding the limitations they cause”).

An ALJ must “consider the exacerbating effects of a claimant’s obesity on her underlying

conditions when arriving at a claimant’s RFC.” Hernandez v. Astrue,277 F.App'x 617, 623–24

(7th Cir. 2008). Even when a claimant does not explicitly list obesity as an impairment in her

application for disability, the ALJ still must evaluate how obesity impacts the claimant’s overall

condition if the ALJ was put on notice that obesity could be a relevant factor. Clifford v. Apfel,

227 F.3d 863, 873 (7th Cir. 2000); see alsoArnett v. Astrue,676 F.3d 586, 593 (7th Cir. 2012)

(stating “[a]n ALJ must factor in obesity when determining the aggregate impact of [a

claimant’s] impairments.”). That is so because “[t]he combined effects of obesity with other

impairments can be greater than the effects of each of the impairments considered separately.”

SSR 19-2p,2019 WL 2374244, at *4.

The Commissioner contends that the ALJ addressed evidence relating to Tracey S.’s

obesity. Specifically, the Commissioner indicated that the ALJ cited treatment notes that

reported a diagnosis of obesity and reflectedBMI’s of 41.6 and 41.37. (Tr. 21-22, 278, 298,

452). Also, the ALJ noted that Tracey S.experiencedknee painexacerbated by activity and that

her weight had increased to 290 pounds (BMI of 44.09). (Tr. 23). However,aside from listing

TraceyS.’s BMI various times throughout the decision, the ALJ offered no explanation on how

her obesity factored into his assessment of the RFC. Even if the ALJ thought that Tracey S.’s

obesity did not result in limitations on her ability to work, he should have explained how he

reached that conclusion.

The consideration of Tracey S.’s obesity is important in this case becauseshe

experienced pain and tenderness in her right foot (Tr. 377-78), degenerative changes to her right

ankle (Tr. 492), pain in the tendons of the knees (Tr. 652), swelling in the feet and back after

walking for one hour (Tr. 657), and low back pain (Tr. 661). Furthermore, the ALJ failed to

explain that despite Tracey S.’s obesity she was able to sit for six hours in an eight-hour

workday. Sitting for long periods of time, as sedentary work normally requires, may be difficult

for those extremely obese. Browning v. Colvin,766 F.3d 702, 707 (7th Cir. 2014).

The ALJ’s failure to explain how the evidence, as a whole, and how the evidence he

relied upon, led him to the limitations he assessedin the RFC, warrants remand. Briscoe ex rel.

Taylor v. Barnhart,425 F.3d 345, 352 (7th Cir. 2005) (ALJ’s failure to explain how she arrived

at her RFC under SSR 96-8p “... in itself is sufficient to warrant reversal of the ALJ’s

decision.”). The bare statement that the ALJ had taken all of TraceyS.’s impairments, including

obesity, into account does not show the court how, if at all, the ALJ incorporated Tracey S.’s

obesity into his RFC. Accordingly, remand is required.

Tracey S. also has argued that the ALJ did not account for her medically determinable

mental impairment of anxiety disorder in the RFC assessment. The ALJ found that Tracey S.’s

“anxiety disorder did not cause more than minimal limitation in [her] ability to perform basic

mental work activities and was therefore nonsevere.” (Tr. 18). The ALJ found that Tracey S.’s

anxiety disorder produced mild limitations in understanding, remembering, or applying

information; nolimitations in interacting with others; mild limitations in concentrating,

persisting, or maintaining pace; and nolimitations adapting or managing herself. (Tr. 18). The

ALJ indicated that because the medically determinable mental impairment caused no more than

“mild” limitation in any of the functional areas, it was non-severe. (Tr. 18).

Here, there is no indicationthat the ALJ considered the impact of Tracey S.’s anxiety

disorder, even if non-severe, in assessing the RFC. Moreover, the ALJ did not explain his

rationale for not including non-exertional limitations in the RFC. Such an explanation is

necessary for the court to trace the ALJ’s reasoning. See McMillion v. Berryhill,2017 WL

526514, at *8 (N.D. Ind. Feb. 8, 2017) (remanding where the ALJ failed to discuss the non-

severe mental limitations in the context of formulating the RFC). “If the ALJ believed that the

mild limitations in these functional areas did not merit a non-exertional limitation in the RFC, he

was obligated to explain that conclusion so that we can follow the basis of his reasoning.”

Muzzarelli v. Astrue,2011 WL 5873793, at *23 (N.D. Ill. Nov. 18, 2011) (citing Haynes v.

Barnhart, 416 F.3d 621, 626 (7th Cir. 2005)). The ALJ has failed to “articulate, at least

minimally, his analysis of the evidence so that the court can follow his reasoning.” Skarbek v.

Barnhart,390 F.3d 500, 503 (7th Cir. 2004). These omissions alsorequire remand.

Tracey S. has raised additional arguments regarding her subjective symptom allegations.

However, since this matter is being remanded on the above issues,the court need not address the

other arguments.

Tracey S. has requested that the court remand for an award of benefits. An award of

benefits is appropriate “only if all factual issues involved in the entitlement determination have

been resolved and the resulting record supports only one conclusion—that the applicant qualifies

for disability benefits.” Allord v. Astrue,631 F.3d 411, 415 (7th Cir. 2011). The Seventh

Circuit has held that when an ALJ’s decision is not supported by substantial evidence, the

appropriate remedy is to remand for further proceedings unless the evidence before the court

compels an award of benefits. Briscoe v. Barnhart,425 F.3d 345, 355 (7th Cir. 2005). The

record here does not warrant an award of benefits.

Based on the foregoing reasons, the decision of the Commissioner isREMANDED for

further proceedings consistent with this order.

ENTERED this 20th day of February, 2020.

/s/ Andrew P. Rodovich

United States Magistrate Judge