Stark v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

JAMES S.1, )

)

Plaintiff, )

)

v. ) CIVIL NO. 4:20cv34

)

ANDREW SAUL, )

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

Insurance Benefits (DIB) and Supplemental Security Income (SSI) as provided for in the Social

Security Act. 42 U.S.C. § 423(a), § 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, 2019.

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2. The claimant has not engaged in substantial gainful activity since May 27, 2016,

the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.)

3. The claimant has the following severe impairments: degenerative disc disease;

obesity; attention deficit hyperactivity disorder (ADHD); anxiety; and depression

(20 CFR 404.1520(c) and 416.920(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, 404.1526,

416.920(d), 416.925 and 416.926).

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) and 416.967(b) except the claimant can lift and carry twenty

pounds occasionally and ten pounds frequently. The claimant can sit for six hours

and stand and/or walk for six hours for a total of eight hours in a workday, with

normal breaks. The claimant can never reach overhead with both upper

extremities, but can frequently reach in all other directions with both upper

extremities and frequently handle and finger with both hands. The claimant can

occasionally climb ramps and stairs, as well as occasionally balance, stoop, kneel,

and crouch. The claimant can never climb ladders, ropes, or scaffolds, never

crawl, never work at unprotected heights, and never work around dangerous

machinery with moving mechanical parts. The claimant is limited to simple work-

related decisions and simple, routine tasks with no assembly line work or strictly

enforced daily production quotas. The claimant is limited [to] occasional

interaction with the general public, co-workers, and supervisors.

6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and

416.965).

7. The claimant was born on May 18, 1966 and was 49 years old, which is defined as

an individual closely approaching advanced age, on the alleged disability onset date

(20 CFR 404.1563 and 416.963).

8. The claimant has at least a high school education and is able to communicate in

English (20 CFR 404.1564 and 416.964).

9. Transferability of job skills is not material to the determination of disability because

using the Medical-Vocational Rules as a framework supports a finding that the

claimant is “not disabled,” whether or not the claimant has transferable job skills

(See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

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10. Considering the claimant’s age, education, work experience, and residual

functional capacity, there are jobs that exist in significant numbers in the national

economy that the claimant can perform (20 CFR 404.1569, 404.569a, 416.969,

and 416.969a).

11. The claimant has not been under a disability, as defined in the Social Security Act,

from May 17, 2016, through the date of this decision (20 CFR 404.1520(g) and

416.920(g)).

(Tr. 21-30).

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

review. This appeal followed.

Plaintiff filed his opening brief on January 18, 2021. On March 30, 2021, the defendant

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

12, 2021. Upon full review of the record in this cause, this court is of the view that the ALJ’s

decision must be remanded.

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.

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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 five was the determinative inquiry.

On January 9, 2015, Plaintiff saw Richard B. Rodgers, M.D., at Goodman Campbell Brain

and Spine, for balance issues and chronic back pain that radiated to the extremities, causing

numbness and tingling. (Tr. 328-29.) Dr. Rodgers reviewed a total spine MRI, which showed mild

degenerative changes with congenital stenosis in the lumbar spine, disc osteophyte-related changes

in the mid-to lower-thoracic spine, causing some anterior cord compression, and degenerative disc

changes in the cervical spine, most prominent at C5-6 and C6-7, with a disc herniation, thickening,

or ossification that caused significant spinal cord compression. (Id.) Dr. Rodgers diagnosed mild

myelopathy likely due to spinal cord compression and discussed surgical options. (Id.)

On February 26, 2015, Plaintiff underwent a corpectomy at C6 with application of an

intervertebral synthetic cage; the post-operative diagnosis was cervical spondylotic myelopathy

with herniated intervertebral disc. (Tr. 330-32.) Plaintiff returned to Dr. Rodgers on April 1, 2015;

his “arm symptoms [were] markedly resolved,” but he still had a lot of interscapular neck and back

pain. (Tr. 333.) A same-day x-ray of the cervical spine was unremarkable status post C6

corpectomy. (Tr. 334.) At a follow-up on June 3, 2015, Plaintiff’s neck pain was improving but he

had some headaches, his back pain was a “significant problem,” and he continued to have balance

issues. (Tr. 335.) A same-day x-ray showed no changes. (Tr. 336.) Dr. Rodgers advised that

thoracic disc surgery was not ideal at that time. (Tr. 335.)

A July 29, 2016 cervical spine MRI showed degenerative changes throughout, most

pronounced at C3-C4, with disc bulging/extrusion causing mild mass effect on the spinal cord and

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questionable increased signal within the cord which could reflect edema or myelomalacia. (Id.)

On August 17, 2016, Plaintiff began treatment with Charles Turner, M.D., at Innovative

Medicine, for neck and back pain, loss of muscle mass and numbness in the right hand, tingling in

the collar bone, difficulty sleeping, and fatigue. (Tr. 432-34.) Exam revealed decreased spinal

flexion and a guarded attitude. (Tr. 434.) At an appointment on August 31 2016, Dr. Turner

diagnosed chronic pain that kept Plaintiff awake at night, insomnia, and anxiety. (Tr. 430-31.) In

September and October 2016 Plaintiff continued to have “constant pain” in his neck and his

medications were adjusted. (Tr. 428-30.) On November 23, 2016 Plaintiff reported increased pain;

fatigue was added to his diagnoses and he was prescribed Xanax. (Tr. 426-27.) On February 15,

2017, it was noted that Norco and Percocet had helped Plaintiff’s symptoms, but he had failed

various narcotics and other medications, back braces, injections, chiropractic intervention,

inversion table, physical therapy, and Flexeril. (Tr. 422-23.) On March 15 2017, Plaintiff reported

sharp pain and numbness in the left shoulder and swelling in the right shoulder. (Tr. 421-22.) In

April and May 2017, Plaintiff reported increased pain and increased anxiety and insomnia; he was

waiting for a referral to a psychiatrist. (Tr. 419-20.) In July 2017, Plaintiff had a flat affect, was

“obviously in pain,” his spine was tender from the neck to lower back, flexion and extension were

slow, and he had an “obviously restricted” gait. (Tr. 417.) On August 2, 2017 Plaintiff’s pain had

improved, but not alleviated; Dr. Turner discussed cortisone injections and added a diagnosis of

paresthesias of the right hand (referred him to a neurologist). (Tr. 415-16.)

On June 8, 2017, Plaintiff underwent an initial psychiatric assessment performed by Aldo

Buonanno, M.D., at Alpine Clinic, LLC. (Tr. 363-65.) Plaintiff had trouble falling and staying

asleep, hallucinations, dissociation, paranoia, and trust issues. (Tr. 363.) Exam showed back pain

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with decreased muscle strength, slow gait, inability to stand long, depressed and anxious mood,

anger, irritability, “high strung” behavior, illogical thought processes, feeling betrayed, lack of

trust, varied judgment, lack of insight, somewhat slow concentration, and shortened attention

span. (Tr. 364-65.) Dr. Buonanno diagnosed generalized anxiety disorder, post-traumatic stress

disorder (PTSD), and delusional disorder. (Tr. 365.) At follow-ups between July and September

2017 Plaintiff had depressed, anxious, and tearful mood and/or labile affect; he complained of poor

concentration, hyperactivity, irritability, frustration, and anxiety. (Tr. 351-62.)

On September 13, 2017, Plaintiff underwent a Neuropsychological Evaluation performed

by Kelly S. Earnst, Ph.D., H.S.P.P., at Alpine Clinic, LLC. (Tr. 346-50.) Plaintiff reported

longstanding issues with concentration, distraction, staying on task, finishing tasks, forgetfulness,

procrastination, depression, frustration, agitation, feelings of worthlessness, low energy, and

excessive worry. (Tr. 346.) During exam, Plaintiff got off topic and seemed distracted at times; he

required frequent clarification of test questions and instructions. (Tr. 347.) Testing indicated

overall intellectual abilities in the borderline range, with a full-scale IQ of 77 and problems with

sustained attention, delayed recall, and mental flexibility. (Tr. 347-49.) Dr. Earnst diagnosed

attention-deficit/hyperactivity disorder (ADHD), major depressive, and generalized anxiety

disorders; she noted that Plaintiff’s mood symptoms likely “had a negative effect on his

concentration and thinking”. (Tr. 349.)

On February 21, 2018, at the request of the State Agency, Plaintiff underwent a

consultative examination performed by Luella Bangura, M.D. (Tr. 370-73.) Plaintiff reported right

hand weakness, lower back pain that radiates to his arms and legs, inability to pick up items or

reach overhead, difficulty walking, standing, sitting, and moving his head side to side and up and

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down, headaches, trouble focusing, difficulty leaving the house and being in crowds, and panic

attacks; Plaintiff was seeing mental health professionals, but lost his insurance. (Tr. 370.) On

exam, Plaintiff had difficulty turning his head side to side and tenderness in the cervical spine; he

had decreased reflexes in the right leg, could walk on heels with some difficulty, bend 50% of the

way, and could not squat. (Tr. 371-72.) Dr. Bangura diagnosed right hand weakness, anxiety,

ADHD, and morbid obesity. (Tr. 372.)

Plaintiff returned to Dr. Turner on February 22, 2018; on exam, he was squirming in his

chair, seemed to be uncomfortable, and had numbness and tingling in the wrist and fingers of the

right hand as well as atrophy. (Tr. 402-04.) Dr. Turner adjusted Plaintiff’s medications and

referred him to a neurologist for arm paresthesia. Dr. Turner also noted that Plaintiff had failed

multiple medications to alleviate his insomnia and was “out of most options” for treatment, was

unable to afford testosterone, which would likely help his energy and pain, and had not taken

Xanax since November 2017 when he was last seen at Alpine Clinic. (Id.) On March 22, 2018 Dr.

Turner diagnosed attention deficit disorder (ADD), without hyperactivity and prescribed Adderall.

(Tr. 411-13.)

On March 6, 2018, due to an insurance change, Plaintiff began treatment with a new

mental health provider, Wabash Valley Alliance, where he saw Nathan Worster, L.M.H.C., M.A.,

Q.B,H.P. (Tr. 375-83.) Plaintiff reported difficulties with concentration and reading, multiple past

arrests for fighting, and chronic pain in his neck and back. (Tr. 375-76.) Mental status exam

revealed only fair judgment and poor to fair concentration; his Global Assessment of Functioning

(GAF) score was 55 (moderate symptoms). (Tr. 380-83.) The diagnosis was ADHD, combined

type. (Tr. 380.) On April 2, 2018 Plaintiff was evaluated by Zeinab Tobaa, M.D., Wabash Valley

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Alliance. (Tr. 388-94.) Exam showed reluctance to reveal information, non-cooperative behavior,

guarding, defensiveness, dysphoric mood, and frustration; he had “fair” short- and long-term

memory, low-average intellect, and “questionable” judgment and insight. (Tr. 390-91.) Dr. Tobaa

diagnosed mood disorder, unspecified, and prescribed Lamictal (mood stabilizer). (Tr. 391.)

Plaintiff returned for monthly appointments with Dr. Turner between April 2018 to January

2019. (Tr. 405-10, 435-53.) He had continued numbness and tingling in the wrist and fingers of

the right hand with muscle atrophy, pain, insurance problems and difficulty finding a mental health

provider, and worsening insomnia. (Id.)

In February 2018, a medical consultant opined Plaintiff could perform light work. (Tr.

63-88.) A psychological consultant opined that, despite his severe ADHD and trauma/stress-

related disorders, Plaintiff could perform simple, unskilled work routines in jobs without fast pace,

quotas, or more than superficial interaction with the public. (Id.) These opinions were affirmed.

(Tr. 91-120.)

Plaintiff completed Function Reports in January and July 2018. (Tr. 260-76, 288-94.)

Plaintiff’s partner completed a Third-Party Function Report in July 2018. (Tr. 295-302.)

At the hearing before the ALJ Plaintiff testified that before his surgery in 2014, he worked

in maintenance, lifting up to 125 pounds and being on his feet all day long. (Tr. 45.) He cannot

work now because he cannot be on his feet for more than 20 to 25 minutes, even with his cane;

without his cane, he leans against the wall, his legs lock, and he becomes dizzy if he stands long.

(Tr. 47.) He has been using the cane, which Dr. Turner recommended, for the past three years.

(Tr. 47-48.) His neck pain has worsened since his surgery and he has poor range of motion and

stiffness. (Tr. 49.) His hands, fingers, elbows, and left leg have constant numbness and tingling; he

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is unsure if insurance would cover cortisone injections. (Tr. 49-50, 53.) He has difficulty buttoning

his pants and writing; he does dishes sitting down and cannot carry a laundry basket because he

has balance issues. (Tr. 50.) When he stands, he gets dizzy and must hold on to something for a

few minutes; sometimes he has numbness and tingling in his feet when he stands. (Tr. 50-51.) He

needs help dressing because he cannot lift his arms above his head, button his shirt, or tie his

shoes. (Tr. 51.) He spends most of the day on the couch because it is the only comfortable

position. Plaintiff only sleeps 5 hours at night and naps every day. (Tr. 52-53.) Once or twice a

week, Plaintiff does not get out of bed due to back pain. (Tr. 53.) He has issues with memory and

concentration and loses personal items “constantly.” (Tr. 53-54.) He uses an electric cart when

grocery shopping and does not shop alone; he cannot load and unload groceries because he cannot

stand without a cane. (Tr. 54.)

The Vocational Expert (VE) testified in response to a hypothetical question consistent with

the ultimate residual functional capacity (RFC). (Tr. 57-60.) She testified that the individual could

work as: Small Parts Assembler, Dictionary of Occupational Titles (DOT) No. 706 .684-022;

Electronics Worker, DOT No. 726.687-010; and, Laundry Folder, DOT No. 369.687-018. (Tr.

57-58.) Needing to alternate between sitting and standing more frequently than every 30 minutes

or bilateral handling, fingering, and feeling only occasionally would eliminate work. (Tr. 58, 60.)

Further, the individual could perform the occupations identified if he required a cane for

ambulation, but not for balance, and could lift up to 20 pounds in the other hand. (Tr. 59.) More

than one absence per month or being off task more than 10 percent would preclude employment.

(Id.)

In support of remand, Plaintiff first argues that it was improper for the ALJ to rely on the

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opinions submitted by the State Agency consultants who reviewed the record in 2018. Plaintiff

contends that the State Agency medical consultants’ opinions were based on select findings from a

single exam. (Tr. 100.) Plaintiff claims that the Agency consultants did not consider exams

showing decreased spinal flexion (Tr. 434), back pain with decreased muscle strength, slow gait,

and inability to stand long (Tr. 364-65), obvious pain, tenderness from the neck to the lower back,

slow flexion and extension, obviously restricted gait (Tr. 417); objective testing showing

abnormalities; diagnoses of myelopathy (Tr. 328-29), cervical spondylotic myelopathy with

herniated intervertebral disc (Tr. 330-32), chronic pain (Tr. 430-31), right hand paresthesia (Tr.

415-16); corpectomy and cage application surgery (Tr. 330-32); complaints of pain, balance

issues, difficulty engaging in certain activities, and fatigue/insomnia (Tr. 328-29, 335, 363, 428,

421-22); and heavy medications, including Percocet, Trazodone, and Norco, which were

frequently adjusted (Tr. 365, 422-23, 430-31). Plaintiff contends that the single exam cited by the

Agency medical consultants does not support their assessment of Plaintiff’s capabilities.

Plaintiff further contends that the State Agency opinions (rendered in February and July

2018) are critically outdated given the new evidence they did not assess, including continued

numbness, tingling, and atrophy of the muscles of the right hand (Tr. 402-07), failed treatments for

insomnia (Tr. 402-04, 440), exam showing only fair judgment, poor to fair concentration, and a

GAF score of 55 (Tr. 380-83), exam showing reluctance to reveal information, non-cooperative

behavior, guarding and defensiveness, only “fair” short- and long-term memory, low-average

intellect, and “questionable” judgment and insight (Tr. 390-91), and a new diagnosis of mood

disorder (Tr. 391).

Also, Plaintiff argues that the ALJ ultimately found the State Agency consultants’ opinions

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“persuasive,” even though he assigned additional restrictions based on evidence that the

consultants did not have available to them. (Tr. 27-28.) Thus, Plaintiff concludes that the ALJ’s

own recognition that the Agency consultants’ opinions were outdated and incomplete shows that

the ALJ impermissibly relied on his own layperson’s opinion in crafting the RFC. Jonie G. v. Saul,

No. 18 CV 50100, 2019 WL 6716610, at *6 (N.D. Ill. Dec. 10, 2019) (ALJ errors couldn’t be

salvaged by State Agency consultants’ opinions because they were outdated, inconsistent with

other evidence in the record, and ALJ did not rely on them); Rohan v. Chater, 98 F.3d 966, 970

(7th Cir. 1996) (ALJs “must not succumb to the temptation to play doctor and make their own

medical findings”); Blakes ex rel. Wolfe v. Barnhart, 331 F.3d 565, 570 (7th Cir. 2003) (ALJs

may not substitute their own opinions to fill gaps in the record).

In response, the Commissioner argues that the Agency consultants did not rely on only a

single exam but reviewed treatment notes from throughout the period at issue. The Commissioner

further asserts that the ALJ was entitled to rely on the opinions because the Agency consultants

are “highly qualified and experts in Social Security disability evaluation”, and, in any event, it was

the ALJ’s responsibility to determine Plaintiff’s RFC. Clearly, the fact that the Agency consultants

may be “highly qualified” does not automatically render the opinions supported. Giacchetti v.

Berryhill, No 16 C 5055, 2017 WL 1731715, at *7 (N.D. Ill. May 2, 2017) (“While evidence from

agency medical consultants is relevant because they are ‘highly qualified and experts in Social

Security disability evaluation, expertise in Social Security evaluation is not what makes the opinion

of a [medical source] probative.”).

This Court agrees with Plaintiff that the opinions are not supported in light of the medical

consultants’ apparent failure to consider exams showing a multitude of abnormal findings as set

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forth above.

Although it is the ALJ’s duty to craft the RFC, the ALJ is still “required to rely on expert

opinions instead of determining the significance of particular medical findings himself.” Moon v.

Colvin, 763 F.3d 718, 722 (7th Cir. 2014); Wesolowski v. Colvin, No. 15 C 8830, 2016 WL

6082353, at *3 (N.D. Ill. Oct. 18, 2016) (if an ALJ discounts the opinions of medical experts,

including State Agency consultants, “the ALJ [is] obligated to seek out additional expert

assistance” and not make his own medical determinations). Here, as noted above, in addition to

the evidence that State Agency consultants failed to consider, there was new evidence post-dating

their review, including continued numbness, tingling, and atrophy of the right hand muscles, failed

treatments for insomnia, an exam showing only fair judgment, poor to fair concentration, and a

GAF score of 55, an exam showing reluctance to reveal information, non-cooperative behavior,

guarding and defensiveness, only fair short- and long-term memory, low-average intellect, and

“questionable” judgment and insight, and a new diagnosis of mood disorder. Clearly, these

findings “bear[] directly” on, and undermine, the State Agency’s opinions. Moreno v. Berryhill,

882 F.3d 722, 729 (7th Cir. 2018). In light of the amount of evidence that does not appear to have

been reviewed, this Court will, out of an abundance of caution, remand on this issue.

Next, Plaintiff argues that the ALJ erred at Step Three. Step Three requires consideration

of whether a claimant’s conditions, individually or in combination, meet or equal a listed

impairment. See 20 C.F.R. §§ 404.1520, 404.1525, 404.1526. Plaintiff contends that, here, the

Step Three analysis is flawed because the ALJ failed to properly consider medical equivalence

given the combination of Plaintiff’s conditions.

In assessing medical equivalence, the ALJ must look at the signs, symptoms, and

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laboratory findings of all impairments to determine if they medically equal a Listing. Plaintiff

contends that the ALJ failed to analyze all of the critical evidence when he concluded that there

was no medical equivalence and that although Plaintiff’s individual impairments may not meet a

listing on their own, there are “closely analogous” listings that the combination of impairments

could medically equal. See Clark v. Astrue, No. 2:11–CV–300–PRC, 2013 WL 1213141, at *11

(N.D. Ind. Mar. 22, 2013)(remanding and directing ALJ to consider whether the cumulative effect

of claimant’s impairments medically equaled any listed impairment).

Plaintiff’s neck and back pain are evaluated under Listing 1.04(A). The record shows that

Plaintiff has several, but not all, of the abnormal signs, symptoms, and laboratory findings therein:

Listing 1.04 — Disorders of the Spine (e.g., herniated nucleus pulposus, spinal

stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture),

resulting in compromise of a nerve root (including the cauda equina) or the spinal

cord. With (A) nerve root compression characterized by neuro-anatomic

distribution of pain, limitation of motion of the spine, motor loss accompanied by

sensory or reflect loss, and, if there is involvement of the lower back, positive

straight-leg raising test sitting and supine . . . .

20 C.F.R. Pt. 404, Subpt. P., App. 1, § 1.04. Plaintiff has multiple disorders of the spine (i.e.,

congenital stenosis in the lumbar spine and cervical spondylotic myelopathy) (Tr. 328-32),

established by diagnostic testing, which showed, in 2015, anterior cord compression in the mid- to

lower-thoracic spine, and degenerative disc changes in the cervical spine with disc herniation,

thickening, or ossification causing significant spinal cord compression (Tr. 328-29) and evidence

of a herniated, status post corpectomy disc (Tr. 330-32). In 2016, testing showed degenerative

changes throughout the cervical spine, most pronounced at C3-C4, with disc bulging/extrusion

causing mild mass effect on the spinal cord and questionable increased signal within the cord

which could reflect edema or myelomalacia (Tr. 337-38). Plaintiff notes that the record also

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shows neuroanatomical distribution of pain. Plaintiff has complained of neck and back pain

post-surgery, including radiating pain, numbness, tingling, and loss of muscle mass in the right

hand, and inability to pick up items or reach overhead. (Tr. 328-29, 370, 432-34.) Exams showed

decreased muscle strength (Tr. 364-65), slow flexion and extension (Tr. 417), decreased reflexes

in the leg (Tr. 371-72), and reduced range of motion in the neck (id.).

Plaintiff acknowledges that he may not meet Listing 1.04 because each of the

aforementioned signs cannot be attributed solely to Plaintiff’s lumbar or cervical issues. Rather,

Plaintiff demonstrates each of the criteria only if his back and neck problems are considered in

combination. As there are other relevant findings, Plaintiff contends that requires careful

consideration of medical equivalence because there is other evidence that could be of equivalent

significance to the abnormality not documented in Listing 1.04. See 20 C.F.R. § 404.1526. For

example, Plaintiff’s exams have shown tenderness from the neck to the back. (Tr. 364-65,

371-72.) Plaintiff has been prescribed narcotics (Percocet, Norco), which do not eliminate

Plaintiff’s back pain. (Tr. 422-23.) Plaintiff has failed other treatments for his back and neck pain,

including back braces, injections, chiropractic intervention, inversion therapy, physical therapy,

and muscle relaxers. (Id.) He also has demonstrated abnormal gait during exams (Tr. 364-65,

417), has been using a cane for years due to balance issues (Tr. 54, 294), and uses an electric chair

at the grocery store (Tr. 54).

Plaintiff further notes that during the February 2018 consultative exam, he could not squat

or properly bend at the waist and had difficulty walking on heels. (Tr. 371-72.) Plaintiff cannot

stand more than 20 to 25 minutes even with his cane (Tr. 47) or sit or lie down more than 15 to 20

minutes before needing to change positions (Tr. 262-64, 289, 294); can only consistently lift 10

15

pounds and cannot carry a laundry basket due to balance issues (Tr. 48-50), has difficulty with

buttons (Tr. 50, 263, 289), and cannot squat or bend properly (Tr. 269-73, 292). Also, Plaintiff is

obese—a condition the ALJ found severe. (Tr. 21.)

Plaintiff argues that all of this evidence, which he claims the ALJ did not analyze, shows

that Plaintiff’s combined back and neck issues and obesity, are of at least equal medical

significance to Listing 1.04 such that he could medically equal that listing. See Garner v. Berryhill,

No. 1:18cv211, 2019 WL 1324605, at *7 (N.D. Ind. Mar. 22, 2019); Parker v. Astrue, 597 F.3d

920, 923 (7th Cir. 2010) (“[ALJ’s] failure to consider the cumulative effect of impairments not

totally disabling in themselves was an elementary error.”).

In response, the Commissioner argues that the ALJ “minimally articulate[d]” his reasons

for his conclusions throughout the Decision. However, the inquiry is not whether the ALJ

addressed every piece of evidence, but whether a logical bridge exists from the evidence to the

ALJ’s conclusions. E.g., Varga v. Colvin, 794 F.3d 809, 813 (7th Cir. 2015); Minnick v. Colvin,

775 F.3d 929, 938 (7th Cir. 2015). In the present case, the ALJ failed to consider critical evidence

and, accordingly, did not build a logical bridge to his conclusions. The ALJ’s analysis of Listing

1.04 did not consider: diagnoses of numerous disorders of the spine (i.e., congenital stenosis of

the lumbar spine and cervical spondylotic myelopathy); objective testing showing significant spinal

cord compression, degenerative disc changes, disc bulging/extrusion, and possible increased signal

in the spinal cord reflecting edema or myelomalacia; Plaintiff’s complaints of radiating pain,

numbness, tingling, loss of muscle mass in the right hand, and inability to pick up items or reach

overhead despite undergoing surgery; exams showing decreased muscle strength, abnormal range

of motion, and decreased reflexes in the legs and reduced range of motion in the neck; and

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evidence of abnormal gait, pain not alleviated by medications or various treatments, use of a cane

and electric chair, and difficulty walking, standing, sitting, bending, squatting, carrying items, and

reaching. It is clear that the ALJ failed to make a “meaningful attempt to analyze the evidence.”

See V. J. H. v. Colvin, No. 1:15-cv-00073-TAB-WTL, 2016 WL 760952, at *3 (S.D. Ind. Feb.

23, 2016).

The Commissioner also argues that Plaintiff cannot show medical equivalence through the

combination of his conditions. However, Agency regulations specifically state that if no individual

impairment meets a listing, the combination of impairments will be considered under a closely

analogous listing. 20 C.F.R. § 404.1526(b)(3) (citing 20 C.F.R. § 404.1525(c)(3)). This Court has

found that musculoskeletal impairments, considered in combination, could equal a Listing under

Listing 1.00. See, e.g., Roberta F. v. Saul, No. 1:20cv63, 2021 WL 321447, at *8 (N.D. Ind. Feb.

1, 2021) (recognizing that claimant’s knee osteoarthritis under Listing 1.02, when considered in

combination with her lumbar spine issues, could equal Listing 1.04 and remanding for expert

determination as to whether claimant’s conditions medically equaled a listing).

The Commissioner points out that the State Agency consultants found that Plaintiff’s

conditions did not meet or equal Listing 1.04. However, the ALJ did not rely on those opinions, or

on any other medical opinion, in assessing medical equivalence at Step Three. See Davis v.

Berryhill, No. 4:16-CV-196-TAB-RLY, 2017 WL 4456722, at *2 (S.D. Ind. Oct. 6, 2017)

(“[T]he ALJ did not indicate that he accepted [the state agency physician’s] opinion regarding

medical equivalence.”). The only reference the ALJ made to the State Agency opinions was in the

RFC; this cannot serve as evidence at Step Three. Jonie G. v. Saul, No. 18 CV 50100, 2019 WL

6716610, at *6 (N.D. Ill. Dec. 10, 2019). In any event, the State Agency opinions were outdated

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and incomplete. Thus, the ALJ improperly substituted his own opinion to fill in the gap. Sullivan

v. Colvin, No. 1:13–cv–01758–JMS–DKL, 2014 WL 4059796, at * (S.D. Ind. Aug. 14, 2014)

(“[W]hen an ALJ relies on an incomplete medical expert opinion and interprets additional medical

records on his own, the ALJ improperly crosses the line between judge and medical doctor.”).

The Commissioner cites Filus v. Astrue, 694 F.3d 863, 867 (7th Cir. 2012), for his

position that “[b]ecause no other physician contradicted [the State Agency] opinions, the ALJ did

not err in accepting them.” However, as previously noted, the State Agency consultants did not

consider all the evidence and, thus, did not consider the combination of all of Plaintiff’s conditions.

Further, the State Agency consultants did not even mention the significant abnormalities in

Plaintiff’s spine as shown by numerous x-rays, MRIs, and exams, let alone discuss the significance

of these findings, which undermine the consultants’ conclusions. Thus, the ALJ was not entitled to

rely on their opinions. See, e.g., Stage, 812 F.3d at 1126 (“Before basing a denial on [outdated

State Agency opinions], the ALJ should have considered contrary evidence and obtained a medical

opinion based on a complete record.”). Thus, remand is required on the medical equivalency

analysis.

Next, Plaintiff argues that the RFC is not supported and lacks an accurate and logical

bridge. The RFC is a determination of the most a claimant can do. Social Security Ruling (SSR)

96-8p, 1996 WL 374184, at *1 (July 2, 1996). It is based upon consideration of “all relevant

evidence in the case record.” Id. at *5. Plaintiff contends that because of the errors discussed

above, the RFC is unsupported. Plaintiff further contends that the RFC fails because it does not

accommodate Plaintiff’s conditions and the ALJ erred in assessing Plaintiff’s and a third-party’s

statements.

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Plaintiff argues that the RFC fails to properly accommodate Plaintiff’s limitations, and

notes that merely “summarizing a medical history is not the same thing as analyzing it, in order to

build a logical bridge from evidence to conclusion.” Chuk v. Colvin, No. 14 C 2525, 2015 WL

6687557, at *7 (N.D. Ill. Oct. 30, 2015). Likewise, an ALJ may not selectively consider medical

reports, but must consider “all relevant evidence.” See Clifford v. Apfel, 227 F.3d 863, 871 (7th

Cir. 2000). Even non-severe conditions must be included in the RFC. 20 C.F.R. § 404.1545(a)(1)

(we will assess your residual functional capacity based on all the relevant evidence in your case

record); 20 C.F.R. § 404.1545(a)(2) (we will factor non-severe impairments into the RFC); SSR

96-8p, 1996 WL 374184, at *5 (non-severe impairments may be critical to the RFC determination

when considered in combination with other impairments)

Plaintiff contends that the ALJ erred in failing to determine the precise duration Plaintiff is

able to sit and stand at one time before needing to change positions and to include a sit/stand

option in the RFC to accommodate Plaintiff’s conditions. See SSR 96-9p, 1996 WL 374185, at *7

(July 2, 1996) (“The RFC assessment must be specific as to the frequency of the individual’s need

to alternate sitting and standing.”). Plaintiff points out that the precise length of time he can sit and

stand is critical in this case given the VE’s testimony that needing to alternate positions more

frequently than every 30 minutes would preclude work. (Tr. 58.)

Plaintiff further asserts that, given the evidence of Plaintiff’s neck and back conditions and

obesity, there is no accurate and logical bridge with respect to the ALJ’s restrictions to sitting up

to 6 out of 8 hours per day, standing or walking up to 6 out of 8 hours per day, lifting and carrying

20 pounds occasionally and 10 pounds frequently, occasional climbing of ramps and stairs, and

occasional balancing, stooping, kneeling, crouching, and crawling. E.g., Tr. 48-50, 263, 52, 54,

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269-73, 292, 300, 370-72. See Adams v. Berryhill, No. 1:18-CV-291-PPS, 2019 WL 2591016, at

*3-4 (N.D. Ind. June 24, 2019). Additionally Plaintiff asserts that, given the numbness, tingling,

and muscle loss in Plaintiff’s right hand and inability to lift his arms overhead, there is no bridge to

the ALJ’s restriction to frequent handling and fingering. (Tr. 50-51, 328, 370, 415-16, 432).

Christine F. v. Saul, No. 2:19-cv-359, 2020 WL 1673033, at *7 (N.D. Ind. Apr. 6, 2020) (given

claimant’s hand numbness and tingling, ALJ’s failure to consider manipulative restrictions was not

harmless where claimant would have been unable to perform her past work if restricted to less

than frequent handling and fingering).

Plaintiff next asserts that the ALJ did not adequately address whether Plaintiff would be

absent from work or need to be off task, despite ample evidence that restrictions in these areas are

necessary due to Plaintiff’s borderline intellectual abilities (Tr. 347-49); major depressive disorder,

generalized anxiety disorder, and ADD/ADHD (Tr. 265-66, 346, 349); fatigue and insomnia, (Tr.

52-53, 363, 402-04, 430-3); and pain (Tr. 263 430-31). Even the State Agency consultants, whose

opinions the ALJ found persuasive, opined that Plaintiff has moderate difficulties in his ability to

complete a normal workday and workweek without interruptions from psychologically based

symptoms and perform at a consistent pace without an unreasonable number and length of rest

periods (Tr. 116). Plaintiff suggests that this case is akin to a recent Seventh Circuit case in which,

the Commissioner argue[d] that Lothridge failed to identify which additional

limitations were supported by the record. As the vocational expert testified,

however, for Lothridge to be employable, she would need to be able to stay on task

for at least 90% of the workday and to have minimal tardiness and only one

absence per month. The ALJ neither cited evidence that Lothridge could meet these

benchmarks nor addressed the evidence that she could not. See Winsted v.

Berryhill, 923 F.3d 472, 477 (7th Cir. 2019). The Commissioner proposes that the

ALJ implicitly rejected that evidence by imposing no limitations beyond restricting

Lothridge to simple tasks and decisions. But this attempt to supply a post-hoc

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rationale for the ALJ's decisive findings runs contrary to the Chenery doctrine. See

SEC v. Chenery Corp., 318 U.S. 80, 87–88, 63 S.Ct. 454, 87 L.Ed. 626 (1943);

Parker, 597 F.3d at 922. The record also contains evidence of additional

limitations—such as a need for frequent breaks and accommodations for poor

concentration and focus—that the ALJ was obliged to consider. See Young v.

Barnhart, 362 F.3d 995, 1002–03 (7th Cir. 2004).

Lothridge v. Saul, --- F.3d ---, 2021 WL 37503, at *6 (Jan. 5, 2021). Here, the VE testified that

more than one absence per month or being off task more than 10 percent of the workday would

preclude employment. (Tr. 59.) Yet, like in Lothridge, the ALJ in this case did not assess whether

Plaintiff could meet these benchmarks, nor address the evidence suggesting that he cannot.

Plaintiff also contends that the ALJ erred in assessing Plaintiff’s and third-party’s

statements. Plaintiff argues that the ALJ failed to properly analyze and discuss the abnormal

findings, which support Plaintiff’s statements. Plaintiff further argues that the ALJ improperly

rejected other evidence corroborating Plaintiff’s symptoms.

Plaintiff next contends that the ALJ also erred in finding the statements of Plaintiff’s

partner “unpersuasive.” (Tr. 28.) Clearly, a family member need not be medically trained to render

an opinion. See Teschner v. Colvin, No. 15 C 6634, 2016 WL 7104280, at *9 (N.D. Ill. Dec. 6,

2016) (regulations permit testimony from family members without requiring them to have medical

training). Also, the Seventh Circuit has cautioned against reducing the weight of familial

third-party reports merely because the possibility for bias exists. See, e.g., Garcia v. Colvin, 741

F.3d 758, 761 (7th Cir. 2013); see also, Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996)

(testimony from family members is of “particular value”) (citation omitted). Plaintiff claims that his

partner’s statements largely corroborate Plaintiff’s statements and are consistent with observations

by medical professionals.; see also Brinley v. Berryhill, 732 F. App’x 461, 466 (7th Cir. 2018)

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(fact that family member report echoed many of plaintiff’s own reports “is a reason to find that

[plaintiff’s] account was corroborated by a family member”).

In response, the Commissioner argues that the medical evidence does not support

Plaintiff’s assertions, and that while it is clear that Plaintiff has demonstrated that he has

limitations, there is no evidence that these limitations would preclude all work. The Commissioner

claims that the ALJ explained his decision in such a way that this Court can determine that the

Decision was logically based on the findings and evidence in the record. This Court has pondered

the Decision and the evidence at some length and has many concerns about whether the RFC

properly sets forth Plaintiff’s limitations. There is ample evidence that Plaintiff has significant

problems in many areas and its hard to fathom that he would be able to do any of the jobs

identified by the VE and accepted by the ALJ. Thus remand is required on the issues related to the

RFC assessment.

The Commissioner’s reliance on Burmester v. Berryhill, 920 F.3d 507, 511-12 (7th Cir.

2019) to suggest that the RFC adequately accounts for Plaintiff’s deficits in concentration,

persistence, or pace and interacting with others is misplaced. In Burmester, the Seventh Circuit

noted that the record did not document the inability to concentrate. Id. By contrast, in this case,

there is ample evidence of Plaintiff’s difficulties with concentration. And, even if the ALJ relied on

the State Agency consultants’ narrative explanation that Plaintiff could do “simple, unskilled work

routines in jobs without a fast pace, quotas, or more than superficial interaction with the public” ,

the ALJ still “must adequately account for limitations identified elsewhere in the record, including

specific questions raised in check-box sections of standardized forms such as the PRT and MRFC

forms [i.e., the “check box” RFC findings].” DeCamp v. Berryhill, 916 F.3d 671, 675-76 (7th Cir.

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2019); see also Yurt v. Colvin, 758 F.3d 850, 859 (7th Cir. 2014) (reversing where ALJ failed to

account for limitations identified by doctor in check-box section of forms). Like DeCamp, here,

the ALJ’s restrictions are insufficient in light of the State Agency’s finding that Plaintiff has

moderate limitations in his ability to complete a normal workday and workweek without

interruptions from psychologically based symptoms and perform at a consistent pace without an

unreasonable number and length of rest periods. Thus, remand is warranted.

Next, Plaintiff argues that the ALJ erred in his Step Five analysis. Plaintiff maintains that in

light of the ALJ’s failure to properly consider all the evidence, there is no assurance that Plaintiff

can perform the occupations identified at Step Five. “[I]n this circuit, both the hypothetical posed

to the VE and the ALJ’s RFC assessment must incorporate all of the claimant’s limitations

supported by the medical record.” Varga v. Colvin, 794 F.3d 809, 813 (7th Cir. 2015). Plaintiff

points out that neither the RFC nor the hypotheticals posed to the VE incorporated all of

Plaintiff’s limitations and, thus, the jobs identified may not reflect jobs Plaintiff can perform.

Plaintiff also asserts that with proper consideration of all the evidence, he would have been

found disabled under Medical-Vocational Guidelines Rule 201.14. Plaintiff claims that he is

capable of, at most, sedentary work and given his age, education, and lack of transferrable skills,

the ALJ was required to find him disabled pursuant to Rule 201.14. See Bancolita, 312 F. Supp.

3d at 745. On remand, the Step Five analysis should be re-evaluated.

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Conclusion

On the basis of the foregoing, the decision of the Commissioner is hereby REVERSED

AND REMANDED for further proceedings consistent with this Opinion.

Entered: April 19, 2021.

s/ William C. Lee

William C. Lee, Judge

United States District Court

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