# Burgess v. Commissioner of Social Security

> District Court, N.D. Indiana · March 7, 2022

URL: https://www.frixlaw.com/law-library/cases/10162161

## Case

- **Court:** District Court, N.D. Indiana
- **Decided:** March 7, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
JOHN B.1, )
)
Plaintiff, )
)
v. ) CIVIL NO. 3:21cv485
)
KILOLO KIJAKAZI, Acting )
Commissioner of Social Security, )
)
Defendant. )
OPINION AND ORDER
This matter is before the court for judicial review of a final decision of the defendant
Commissioner of Social Security Administration denying Plaintiff's application for Disability
Insurance Benefits (DIB) and for 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 a hearing, the Administrative Law Judge (“ALJ”) made the

following findings:
1. The claimant meets the insured status requirements of the Social Security Act
through June 30, 2024.
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2. The claimant has not engaged in substantial gainful activity since May 7, 2018,
the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: degenerative joint disease of
the left ankle; tarsal tunnel of the left foot; chronic regional pain syndrome
(CRPS) of the left lower extremity; degenerative disc disease of the lumbar spine;
attention deficit disorder (ADD); major depressive disorder; bipolar disorder;
generalized anxiety disorder; and post-traumatic stress disorder (PTSD) (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 sedentary work as defined
in 20 CFR 404.1567(a) and 416.967(a), as the claimant can lift, and/or carry 20
pounds occasionally and 10 pounds frequently; sit for 6 hours in an 8-hour
workday; and stand and/or walk for 2 hours each in an 8-hour workday. The
claimant can never operate foot controls with the left foot. The claimant can never
climb ladders, ropes or scaffolds but can occasionally climb ramps and stairs; and
occasionally balance, stoop, kneel, crouch, and crawl. The claimant can never
work at unprotected heights or around moving mechanical parts. The claimant can
never operate a motor vehicle. The claimant can have occasional exposure to
humidity; wetness; extreme cold; and extreme heat. The claimant can have
frequent exposure to dust, odors, fumes, and pulmonary irritants; and vibration.
The claimant cannot work on rough or uneven surfaces. The claimant is able to
perform simple, routine tasks; and make simple work-related decisions. The
claimant can occasionally interact with supervisors, coworkers, and the public.
The claimant’s time of [sic] task can be accommodated by normal breaks.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and
416.965).
7. The claimant was born on August 13, 1980 and was 37 years old, which is defined
as a younger individual age 18-44, on the alleged disability onset date (20 CFR
404.1563 and 416.963).
8. The claimant has at least a high school education (20 CFR 404.1564 and
416.964).
9. Transferability of job skills is not material to the determination of disability
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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).
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, 404.1569(a), 416.969,
and 416.969(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act,
from May 7, 2018, through the date of this decision (20 CFR 404.1520(g) and
416.920(g)).
(Tr. 18-29).
Based upon these findings, the ALJ determined that Plaintiff was not entitled to disability
benefits. The ALJ’s decision became the final agency decision when the Appeals Council denied
review. This appeal followed.
Plaintiff filed his opening brief on January 6, 2022. On January 18, 2022, the defendant
filed a memorandum in support of the Commissioner’s decision, to which Plaintiff replied on
March 2, 2022. 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
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the next step or, on steps 3 and 5, to a finding that the claimant is
disabled. A negative answer at any point, other than step 3, stops
the inquiry and leads to a determination that the claimant is not
disabled.
Nelson v. Bowen, 855 F.2d 503, 504 n.2 (7th Cir. 1988); Zalewski v. Heckler, 760 F.2d 160, 162
n.2 (7th Cir. 1985); accord Halvorsen v. Heckler, 743 F.2d 1221 (7th Cir. 1984). From the nature
of the ALJ's decision to deny benefits, it is clear that step five was the determinative inquiry.
Plaintiff filed an application for DIB and SSI on March 8, 2019, alleging disability
beginning May 7, 2018. (Tr. 15). Plaintiff’s claim was initially denied on May 31, 2019. Plaintiff
requested reconsideration but was again denied on September 4, 2019. Id. On June 9, 2020,
Plaintiff appeared for a phone hearing before an ALJ. (Tr. 14-15). Vocational expert (VE)
Diamond Warren was present for this hearing. (Tr. 74). Following the hearing, the ALJ requested
medical interrogatory responses from medical expert (ME) Lee Fischer, and Plaintiff then
requested a supplemental hearing. (Tr. 15). The supplemental phone hearing was held on
December 3, 2020. At the supplemental hearing, the ME and vocational expert (VE) Kari
Seaver-Ready were also present. Plaintiff was represented by attorney Nick Lavella at both

hearings. Id. The ALJ issued an unfavorable decision on February 24, 2021. (Tr. 12). Plaintiff
filed a request for review by the Appeals Council, which denied the request on May 6, 2021. (Tr.
1). Plaintiff then timely filed a complaint with this Court.
In support of remand, Plaintiff first argues that the ALJ erred in his evaluation of the
medical opinion evidence. For claims filed after March 27, 2017, as is the case here, the Social
Security Administration provides that its adjudicators must weigh medical source statements
under the rules set out in 20 C.F.R. §§ 404.1520c and 416.920c. The agency’s regulations require

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an ALJ to consider any medical opinions provided by a medical source using several factors,
including supportability, consistency, relationship with the claimant, and specialization. 20 CFR
416.920c (c) (1) – (5). The most important factors considered when determining the
persuasiveness of a medical source opinion are supportability and consistency. 20 CFR 416.920c

(b)(2). Therefore, an ALJ must “explain how [they] considered the supportability and consistency
factors for a medical source’s opinions . . . in [the claimant’s] determination or decision.” An ALJ
may explain how they considered the other factors, but this is not required. Id.
Where opinions are equally well-supported and consistent with the record, the agency
explains that an examining relationship should be considered as a factor in favor of an opinion
because a “medical source may have a better understanding of [a claimant’s] impairment(s) if he
or she examines [the claimant] than if the medical source only reviews evidence in [the

claimant’s] folder.” 20 CFR 416.920c (c)(3)(v). Furthermore, a treating relationship may
demonstrate that a “medical source has a longitudinal understanding of [the claimant’s]
impairment(s),” taking into account subfactors like the length of the treatment relationship, the
frequency of examinations, the purpose of the treatment relationship, and the extent of the
treatment relationship. 20 CFR 416.920c (c) (3) (i) – (iv).
In the present case, Dr. Kristl, Plaintiff’s treating neurologist, provided a medical source
statement on May 20, 2020. (Tr. 1345-49). He provided the diagnostic criteria that were met for
chronic regional pain syndrome (CRPS). (Tr. 1345-46). He indicated that Plaintiff was not a

malingerer. (Tr. 1347). He said that depression and anxiety contributed to the severity of
Plaintiff’s symptoms and functional limitations. He thought that Plaintiff’s combination of
physical impairments and emotional factors was reasonably consistent with the symptoms and
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functional limitations described in his statement. He believed that Plaintiff’s experience of pain or
other symptoms would constantly be severe enough to interfere with the attention and
concentration needed to perform even simple work tasks and that Plaintiff would be incapable of
even low-stress jobs. Id. He provided limitations to less than sedentary work. (Tr. 1348-49). He

said that Plaintiff would have good days and bad days and would likely be absent from work as a
result of his impairments or treatment more than four days per month. (Tr. 1349).
In considering Dr. Kristl’s opinion, the ALJ held that:
Dr. Kristl completed an opinion in July 2020 finding that the claimant could
perform less than sedentary work, and needed to shift positions continuously. Dr.
Kristl opined that the claimant would miss work more than 4 days a month
(Exhibit 31F). The undersigned does not find the opinion of Dr. Kristl to be
persuasive, as they [sic] are not consistent with or supported by the record. The
undersigned notes that Dr. Fischer testified that even a treating doctor would have
to be a psychic in order to determine how much work a person would miss
(Hearing Testimony). The undersigned also notes that there is nothing to support
the less than sedentary work or need to miss work, as he had improvement in his
symptoms with conservative care (Exhibits 7F/5-7, 16F6-8, 40F/30-33, 38-40,
41F/2-5). There is nothing to support the need to take breaks, as he could stand
and walk more than normal (Exhibit 41F/2-5). The claimant had fairly normal
clinical findings as well, including intact gait and strength (Exhibits 4F/5-7, 11F,
32F/2-19, 23-24, 40F/26-29, 41F/6-10).
(Tr. 27).
Plaintiff argues that the record clearly shows that Plaintiff’s pain management treatment
has not been limited to “conservative care.” Plaintiff has received at least four lumbar
sympathetic blocks, has had a spinal cord stimulator implanted, and underwent surgery to have
painful hardware from past surgeries removed from his left foot. (Tr. 480, 487, 575, 1112). He is
on morphine for pain control of his CRPS. (Tr. 1697). Plaintiff also contends that his
“improvement” has been relatively minimal. Plaintiff takes issue with the ALJ’s claim that
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Plaintiff can “walk more than normal,” which the ALJ based on a citation to Exhibit 41F, pages 2
to 5 (Tr. 1697-1700). This rehabilitation specialist visit note from November 2020 indicates that
Plaintiff could “move around better” on morphine, but he otherwise “just lays in bed all day due
to pain.” (Tr. 1697). This note even mentions “the extensive amount of meds he has tried and

failed” and the “minimal benefit” from his spinal cord stimulator. Plaintiff said that regarding his
development of lower back pain, he was “doing about the same.” In discussing his condition,
Plaintiff said that with the morphine, he could “stand and walk more than normal”—as in, more
than his baseline of being limited to bed all day. Id. This is not an ability to “walk more than
normal” people, or indicative of the ability to persist at work without the need for breaks.
Additionally, Dr. Fischer’s odd testimony that one would have to be psychic to know how
much work a person would miss per month is entirely unhelpful. This is a routine assessment in

nearly every case and an estimate of time off work can be determined by a person’s medical
history, current medications, and general prognosis.
Plaintiff also notes that the ALJ’s observation that Plaintiff has “fairly normal clinical
findings” is not supported in the record. Plaintiff’s doctors continued to provide invasive
procedures and heavy pain medications for Plaintiff’s pain, which is strong support for the notion
that Plaintiff had rather severe pain. Additionally, there are positive clinical findings in the record
such as antalgic or limping gait (Tr. 1139, 1221), left calf atrophy (Tr. 650), hyperesthesia (Tr.
650), reduced reflexes in the lower extremities (Tr.. 651), and observed pain with walking (Tr..

1589). This Court agrees with Plaintiff that the ALJ’s analysis of the medical opinions was the
product of improper cherry-picking of the medical record to support his conclusions. Knapp v.
Berryhill, 741 Fed. Appx. 324, 327-329 (7th Cir. 2018); Cole v. Colvin, 831 F.3d 411, 416 (7th
8
Cir. 2016) (citing Price v. Colvin, 794 F.3d 836, 839-40 (7th Cir. 2015); Yurt v. Colvin, 758 F.3d
850, 859 (7th Cir. 2014); Bates v. Colvin, 736 F.3d 1093, 1099 (7th Cir. 2013)).
Plaintiff also contends that the ALJ’s evaluation of Dr. Fischer’s opinion was erroneous.
The ALJ held that Dr. Fischer’s opinion was persuasive:

The impartial medical expert, Dr. Fischer, completed an opinion indicating that the
claimant could perform the lifting of light work with 2 hours of standing and
walking each along with postural and environmental limitations (Exhibit 35F,
Hearing Testimony). The undersigned finds the opinion of Dr. Fischer to be
persuasive, as it is consistent with and supported by the record. In particular, the
claimant is limited to the standing and walking of sedentary work because of
increased left lower extremity and back pain with such activity (Exhibits 4F/15-17,
16F/6-8). The claimant has postural restrictions because of increased back and left
lower extremity pain with certain activity, including bending and climbing
(Exhibits 4E, 11F). The claimant has hazard limitations because of a limping gait
and some decreased sensation due to his left lower extremity impairments
(Exhibits 32F/2-7, 40F/22-25, 41F/6-10). The claimant has other environmental
restrictions because of increased pain in certain conditions, including with weather
changes (Exhibits 4E, 31F).
(Tr. 27).
Plaintiff contends that the claim that Dr. Fischer’s suggested limitations, rather than Dr.
Kristl’s opined limitations, are supported by the record is incorrect because Dr. Fischer went out
of his way to say that he could not assess pain, he did not believe Plaintiff’s reports of pain, and
he did not trust that aggressive treatments for pain indicated that the pain existed. (Tr. 49-53). Dr.
Fischer also indicated that he was simply not qualified to evaluate CRPS and its related symptoms
including pain. When asked if he was familiar with CRPS, Dr. Fischer said that he was “relatively
familiar with it” but could not “give you a detailed definition of it.” (Tr. 45-46). He also
dismissed reports of pain by saying that “one does not have to be pain free in order to work” and
emphasized the presence or absence of “acute distress” to evaluate pain. (Tr. 50). He later referred
9
to CRPS as “supposedly some type of a neurologic problem,” suggesting both a lack of
familiarity with the condition and skepticism that it was a legitimate condition at all. (Tr. 51). Dr.
Fischer’s testimony regarding pain is particularly problematic because the agency recognizes that
CRPS is characterized by a “degree of pain reported [that] is out of proportion to the severity of

the injury sustained by the individual.” SSR 03-2p. When subjective reports of disproportionate
pain are characteristic of the condition, it would be wholly inappropriate to dismiss pain because
of a perceived lack of clinical findings when the condition has been found to exist in an
individual, and Dr. Fischer acknowledged that the diagnostic criteria were met. (Tr. 46-48).
Importantly here, Dr. Fischer is a non-examining source, and he is a family medicine
physician, not a pain specialist or neurologist. (Tr. 1389). In addition to supportability and
consistency (which weigh more in favor of Dr. Kristl’s opinion), opinions by treating sources or

relevant specialists typically are entitled to more weight. 20 CFR 404.1520c (3) (c) (1) – (4). Dr.
Kristl is both a treating source and a relevant specialist, as a neurologist specifically treating
Plaintiff’s CRPS. Thus, for the above reasons, remand is required for a proper evaluation of the
opinions of Dr. Kristl and Fischer.
Next, Plaintiff argues that the ALJ erred in his evaluation of the psychological expert
opinions and failed to include limitations in the RFC for Plaintiff’s moderate concentration
limitations. With respect to Plaintiff’s mental limitations the ALJ held:
As for the opinion evidence regarding the claimant’s mental limitations, the State
agency psychological consultants found that he could handle detailed tasks and
relate on a superficial basis with others (Exhibits 1A, 2A, 5A, 6A). The
undersigned finds the opinions of the State agency psychological consultants to be
somewhat persuasive, as they are somewhat consistent with and supported by the
record. Specifically, the claimant is limited to simple tasks because of trouble
concentrating and with his short-term memory due to ADD, PTSD, and side
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effects from medication (Exhibits 5F/9-10, 12-13, 15-17, 10F, 19F/30-34,
37F/7-11, Hearing Testimony). The claimant also has such restrictions because of
difficulty with these activities related to his pain (Exhibits 4F/21-23, 8F/4, Hearing
Testimony). The claimant has social limitations because of trouble interacting due
to his bipolar disorder, anxiety disorder, depression, and PTSD (Exhibits 4E,
8F/12-14, 10F).
(Tr. 27-28).
Plaintiff’s core complaint on this issue is that the ALJ did not explain why he assessed the
concentration limitations in the way that he did. Plaintiff contends that the assignment of
limitations that currently exists is arbitrary, opaque and indecipherable. Plaintiff also expresses
his belief that if the ALJ had asked the VE about the impact of a limitation to superficial
interactions, the VE would have likely testified that the available job base was greatly eroded.
This Court finds that the ALJ’s discussion on this point to be hurried, as if the mental limitations
were an afterthought in the decision. Thus, this issue will be remanded for a fuller explanation of
which opinions were persuasive in what areas, and how the persuasive limitations were
incorporated into the RFC.
Next, Plaintiff argues that the VE’s determination that there are 59,000 jobs in the
national economy that the Plaintiff can perform to be an insignificant number. “If the claimant
makes it past step four, the burden shifts to the Commissioner to demonstrate that the claimant
can successfully perform a significant number of jobs that exist in the national economy.” Young
v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004) (citing Zurawski v. Halter, 245 F.3d 881, 886
(7th Cir. 2001)).
This is a recurring issue in Social Security appeals and, as both parties note, the Courts in
the Seventh Circuit have reached mixed results regarding what constitutes a “significant” number

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of jobs. In a non-precedential disposition, the Seventh Circuit stated in dicta that 110,000 jobs
nationally was enough to support the ALJ’s finding. Primm v. Saul 789 F.App’x 539, 546 (7th Cir.
2019). In Liskowitz v. Astrue, 559 F.3d 736, 743 (7th Cir. 2009), the Seventh Circuit held that
4000 jobs in the Milwaukee area was not insignificant, and noted that “it appears to be

well-established that 1,000 jobs is a significant number.” This Court has concluded that 41,000
jobs2, 99,000 jobs3, and 120,0004 jobs are a significant number. As 59,000 falls squarely within
these numbers, it is also a significant number of national jobs. Thus, there is no basis for remand
on this point.
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: March 7, 2022.
s/ William C. Lee
William C. Lee, Judge
United States District Court

2 Zych v. Kijakazi, No. 1:20cv414-SLC, 2021 WL 5319880, at *5 (N.D. Ind. Nov. 16,
2021.
3 Dugan v. Kijakazi, No. 1:20-CV-00344-SLC, 2021 WL 5231731, at *4 (N.D. Ind. Nov.
9, 2021).
4 Knapp v. Saul, No. 1:20-CV-00011-PPS-SLC, 2021 WL 536121, at *4-5 (N.D. Ind. Jan.
27, 2021).
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