Johnson v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

DONNA M. J.1 , )

)

Plaintiff, )

)

v. ) CASE NO. 3:20-CV-00556-MGG

)

COMMISSIONER OF SOCIAL )

SECURITY, )

)

Defendant. )

OPINION AND ORDER

Plaintiff Donna M. J. (“Ms. J”) seeks judicial review of the Social Security

Commissioner’s decision denying Ms. J’s application for Disability Insurance Benefits

(“DIB”) under Title II of the Act and Supplemental Security Income (“SSI”) under Title

XVI. This Court may enter a ruling in this matter based on the parties’ consent pursuant

to 28 U.S.C. § 636(b)(1)(B) and 42 U.S.C. § 405(g). For the reasons discussed below, the

Court REMANDS the decision of the Commissioner of the Social Security

Administration (“SSA”).

I. OVERVIEW OF THE CASE

On September 5, 2017, Ms. J protectively filed for DIB and SSI, alleging in both

applications that her disability began on June 27, 2017. The Disability Determination

Bureau denied these claims on April 2, 2018, and further denied her request for

1 To protect privacy interests, and consistent with the recommendation of the Judicial Conference, the Court

refers to the plaintiff by first name, middle initial, and last initial only.

reconsideration on September 24, 2018. Following an administrative hearing on May 22,

2019, the Administrative Law Judge (“ALJ”) issued a decision on June 18, 2019, which

affirmed the SSA’s initial denial of benefits. In the opinion, the ALJ issued several

findings of fact and conclusions of law. The ALJ first found that Ms. J meets the insured

status requirements of the Social Security Act through December 31, 2022. Next, the ALJ

found that Ms. J has not engaged in substantial gainful activity since June 27, 2017, the

alleged onset date. The ALJ determined that Ms. J had the following severe impairments:

“status post aneurysm, hypertension, cervical and lumbar spine degenerative disc

disease, right shoulder rotator cuff tendinitis, pelvic somatic dysfunction, right tibial

neuropathy, right foot deformity, and obesity.” [DE 19 at 17]. He concluded that the

above-mentioned medical impairments significantly limit Ms. J’s ability to perform basic

work activities as required by SSR 85-28. However, the ALJ found that Ms. J’s medical

impairments did not meet or medically equal the severity of one of the listed impairments

pursuant to 20 CFR Part 404, Subpart P, Appendix 1.

In light of these findings of fact and consideration of the record, the ALJ concluded

that Ms. J has the residual functional capacity to do the following:

[L]ift no more than twenty (20) pounds occasionally with frequent lifting or

carrying objects up to ten (10) pounds; to stand and/or walk for about six

(6) hours of an eight-hour workday and to sit for about six (6) hours of an

eight-hour workday; she can frequently reach with both upper extremities;

and she can frequently handle and finger with both hands, as well as

frequently balance, stoop, kneel, and crouch. [Id. at 18].

Additionally, the ALJ found that Ms. J can “occasionally crawl and climb ramps and

stairs; she can never climb ladders, ropes, or scaffolds; and she can never work at

unprotected heights or around dangerous machinery with moving mechanical parts.” [Id.

at 18]. Thus, the ALJ found that Ms. J “has the residual functional capacity to perform

light exertional work with some manipulative, postural, and environmental limitations.”

[Id. at 22]. Lastly, the ALJ determined that Ms. J can perform past relevant work as a

phlebotomist and blood donor supervisor. This work, according to the ALJ, does not

require the performance of work-related activities precluded by Ms. J’s residual

functional capacity. Based on these factual determinations, the ALJ rendered a finding

that Ms. J is not disabled, as defined by the Social Security Act, from June 27, 2017,

through the date of the ALJ’s decision. As such, the ALJ denied Ms. J’s application for

DIB and SSI assistance. Ms. J now appeals the ALJ’s decision to this Court.

II. DISABILITY STANDARD

A claimant is “disabled” under the Social Security Act if he or she demonstrates

an “inability to engage in any substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected to result in death or

which has lasted or can be expected to last for a continuous period of not less than 12

months.” 42 U.S.C. § 423(d)(1)(A); see also 42 U.S.C. § 1382c(3)(A). Further, “[a]n

individual shall be determined to be under a disability only if his physical or mental

impairment or impairments are of such severity that he is not only unable to do his

previous work but cannot, considering his age, education, and work experience, engage

in any other kind of substantial gainful work which exists in the national economy.” 42

U.S.C. § 423(d)(2)(A).

The Agency applies this statutory standard pursuant to a five-step sequential

analysis. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The Commissioner’s five-step inquiry

in evaluating claims for DIB and SSI under the Act includes determinations as to: (1)

whether the claimant is doing substantial gainful activity; (2) whether the claimant’s

impairments are severe; (3) whether any of the claimant’s impairments, alone or in

combination, meet or equal one of the Listings in Appendix 1 to Subpart P of Part 404; (4)

whether the claimant can perform her past relevant work based upon her residual

functional capacity (“RFC”); and (5) whether the claimant is capable of performing other

work. 20 C.F.R. § 416.920. The claimant bears the burden of proof at every step except the

fifth. Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000).

III. STANDARD OF REVIEW

This Court has authority to review a disability decision by the Commissioner

pursuant to 42 U.S.C. § 405(g) of the Social Security Act. However, this Court’s role in

reviewing Social Security cases is limited. See Elder v. Astrue, 529 F.3d 408, 413 (7th Cir.

2008). The narrow question before this Court is not whether the claimant is in fact

disabled, but rather, whether the ALJ’s decision “applies the correct legal standard and

is supported by substantial evidence.” Summers v. Berryhill, 864 F.3d 523, 526 (7th Cir.

2017); see also 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”). Substantial

evidence, as interpreted by the courts, includes “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Moore v. Colvin, 743 F.3d 1118,

1120-21 (7th Cir. 2014) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).

The Seventh Circuit requires that a court “reviews the entire record but does not

substitute its judgment for that of the Commissioner by reconsidering facts, reweighing

evidence, resolving conflicts in evidence, or deciding questions of credibility.” Estok v.

Apfel, 152 F.3d 636, 638 (7th Cir. 1998). The ALJ, however, “must build an accurate and

logical bridge between the evidence and the result to afford the claimant meaningful

judicial review of the administrative findings.” Beardsley v. Colvin, 758 F.3d 834, 837 (7th

Cir. 2014). Even if reasonable minds could differ as to the disability status of a claimant,

the court “must nevertheless affirm the ALJ’s decision denying her claims if the decision

is adequately supported.” Elder, 529 F.3d at 413; see also Lopez ex rel. Lopez v. Barnhart, 336

F.3d 535, 539 (7th Cir. 2003) (noting that the court will not “reweigh evidence, resolve

conflicts, decide questions of credibility, or substitute [its] own judgment for that of the

Commissioner.”).

In addition to reviewing whether the ALJ supported his or her decision with

substantial evidence, “if the Commissioner commits an error of law,” a reviewing court

“may reverse without regard to the volume of evidence in support of the factual

findings.” White ex rel. Smith v. Apfel, 167 F.3d 369, 373 (7th Cir. 1999); see also Rice v.

Barnhart, 384 F.3d 363, 369 (7th Cir. 2004) (noting that a reviewing court considers

whether the ALJ’s decision “is the result of an error of law.”).

IV. ANALYSIS

In the instant case, Ms. J asserts that the ALJ made two reversible errors. First, Ms.

J alleges that the ALJ committed a reversible error by failing to admit and consider the

treating source statement from her primary physician. Second, Ms. J states that the ALJ

failed to submit new medical evidence to medical experts for review and, instead, relied

on the stale opinions by state agency physicians. For the reasons discussed below,

remand is warranted.

a. Excluding the Source Statement from Ms. J’s Physician

The SSA regulations require a claimant to submit all known evidence as to whether

he or she is disabled. 20 C.F.R. §§ 404.1512(a), 416.912(a)2. Furthermore, a claimant must

“make every effort to ensure that the administrative law judge receives all of the evidence

and must inform [the SSA] about or submit any written evidence, as required in

§ 404.1512, no later than 5 business days before the date of the scheduled hearing.” 20

C.F.R. § 404.935(a). If a claimant fails to comply with the five-day requirement, the ALJ

“may decline to consider or obtain the evidence, unless [certain defined] circumstances .

. . apply.” Id. Among others, the defined exceptions include whether the claimant had a

physical, mental, educational, or linguistic limitation that prevented him or her from

submitting the evidence earlier. 20 C.F.R. § 404.935(b).

According to Ms. J, the ALJ committed a reversible error by failing to admit Dr.

Larson’s August 2018 source treating statement. [DE 23 at 12]. Specifically, Dr. Larson,

Ms. J’s primary care physician, opined that Ms. J could sit for one (1) hour within an eight

(8) hour workday and stand/walk (combined) for less than one (1) hour within an eight

(8) hour workday, which he said applied beginning in August 2017. [DE 19 at 39]. Ms. J

suggests that this information shows a worsening of her condition from the time she

2 Regulations governing applications for DIB and SSI are almost identical and are found at 20 C.F.R. § 404

and 20 C.F.R. § 416 respectively. Going forward, this Opinion and Order will only refer to 20 C.F.R. § 404

unless explicit distinction between the DIB and SSI regulations is necessary.

began seeing Dr. Larson in February 2017. [DE 23 at 15]. The issue, however, is that Ms. J

did not bring Dr. Larson’s source treating statement to the attention of her counsel or the

Commissioner until the day of her administrative hearing on May 22, 2019. [DE 19 at 45].

Counsel for Ms. J therefore requested to have Dr. Larson’s August 2018 source treating

statement admitted into the record as relevant evidence. [Id.] In response, the ALJ stated,

“Well we certainly discussed it and you can upload it when you get back to the office,”

and he further added “I’m not going to hold the record open but you can upload it and

I’ll address it in my decision.” [Id.]. The ALJ ultimately declined to admit the new

evidence because Ms. J did not meet the requirements set forth in 20 C.F.R. § 404.935(b).

[Id. at 14]. In particular, the ALJ found “no unusual, unexpected, or unavoidable

circumstance beyond the claimant’s control which prevented the document from being

provided prior to five days before the hearing.” [Id. at 14-15].

In challenging the ALJ’s decision, Ms. J states that “[t]he ALJ agreed to address

[Dr. Larson’s] opinion in his decision once the opinion was uploaded” and therefore is

bound to consider the evidence. [DE 23 at 13]. Yet, Ms. J overestimates the ALJ’s

statement. The ALJ clearly stated that the record would not be held open and then

promised to address Dr. Larson’s treating source statement in his decision. Indeed, the

ALJ did exactly that; the ALJ addressed Dr. Larson’s source statement in his decision.

Rather than consider the substantive content of Dr. Larson’s source statement, as Ms. J

wants, the ALJ explained why the additional evidence could not be admitted into the

record. The ALJ concluded that Ms. J failed to comply with the five-day requirement

pursuant to 20 C.F.R. § 404.935(b) and did not qualify for one of the exceptions. [DE 19 at

14]. With nothing more, Ms. J has failed to establish that the ALJ had a legal obligation to

admit Dr. Larson’s opinion based on an oral promise during the administrative hearing.

However, Ms. J also challenges the ALJ’s conclusion that she did not qualify for an

exception under Section 404.935(b)’s five-day requirement. Ms. J argues that she qualifies

for an exception because of mental limitations resulting from a stroke that led to her late

submission. [DE 23 at 13]. Ms. J asserts that the ALJ did not adequately explain why she

did not qualify for an exception and, instead, stated in a conclusory fashion that she did

not meet an exception. [DE 27 at 3]. Moreover, Ms. J contends that her counsel did not

have the opportunity to argue why she qualified for an exception based on a

misunderstanding that the ALJ would admit Dr. Larson’s source treating statement. [DE

23 at 13-14]. Both arguments lack merit.

To start, Ms. J points this Court to no evidence in the record suggesting that she

suffers from any mental limitations and thus qualifies for an exception under § 404.935(b).

Ms. J merely alleges memory and concentration problems as a result of her stroke and

aneurysm without further explanation. [See id. at 13]. During the administrative hearing,

the ALJ did inquire about the possibility of Ms. J having a mental impairment. [DE 19 at

62-63]. And at no point during the administrative hearing did the ALJ prevent counsel

from explaining why Ms. J had a mental disability and therefore qualified for an

exception. [See generally id.]. Ms. J’s counsel could have but did not raise the issue when

discussing Dr. Larson’s source treating statement, [see id. at 45], and, as such, the ALJ

reasonably concluded that Ms. J did not suffer from a mental impairment based on the

evidence in the record and testimony from the administrative hearing.

In sum, the ALJ’s decision to exclude Ms. J’s late submission of Dr. Larson’s

opinion from the record is supported by substantial evidence and does not amount to a

legal error.

b. Failing to Submit New Medical Evidence for Expert Review

Ms. J next alleges that “[t]he ALJ relied on stale medical opinions and did not

submit complex new objective medical evidence . . . to a medical expert for further

review.” [DE 23 at 16]. The opinions at issue were reached by the state agency medical

consultants in September 2018, [DE 19 at 86-96, 97-107], before Ms. J had an x-ray in March

2019 and MRI in April 2019. [Id. at 892-893, 920-921]. Instead, Ms. J contends that the ALJ

wrongly concluded that the new x-ray and MRI “would not substantively alter the light

residual functional capacity without mental limitation assessed by the reviewing

consultants.” [DE 23 at 19]. Accordingly, Ms. J claims that the ALJ committed a reversible

legal error. [Id. at 16, 19].

The Seventh Circuit has often reiterated that it is impermissible for an ALJ to

succumb to the temptation to “play doctor” and rely on his or her “own assessment of

the medical evidence to reach conclusions unsupported by the record.” Blakes ex rel. Wolfe

v. Barnhart, 331 F.3d 565, 570 (7th Cir. 2003). For example, in Goins v. Colvin, the court

found that the claimant’s MRI required expert medical review. 764 F.3d 677, 680 (7th Cir.

2014). The court explained that the MRI required professional medical evaluation, which

amounted to “new and potentially decisive medical evidence.” Id. According to the court,

the ALJ summarized the results of an MRI “in barely intelligible medical mumbo jumbo.”

Id. Furthermore, the ALJ’s summary stood by itself—unrelated to the rest of the

opinion—and the ALJ did not address the fact that the new MRI showed significant

differences from an earlier evaluation. Id.; see also Akin v. Berryhill, 887 F.3d 314, 317 (7th

Cir. 2018) (noting that “without an expert opinion interpreting the MRI results in the

record, the ALJ was not qualified to conclude that the MRI results were ‘consistent’ with

his assessment.”); McHenry v. Berryhill, 911 F.3d 866, 871 (7th Cir. 2018) (“An ALJ may not

conclude, without medical input, that a claimant’s most recent MRI results are

‘consistent’ with the ALJ’s conclusions about her impairments.”).

Recently, however, in Kemplen v. Saul, the Seventh Circuit clarified that not all new

medical evidence requires professional scrutiny beyond the assessment of an ALJ. 844 F.

App’x 883, 887 (7th Cir. 2021), as amended on reh’g in part (June 21, 2021). There, the

Seventh Circuit noted that it previously “upheld the denial of benefits when MRI

evidence post-dating the state agency consultant’s report showed only mild changes in

the claimants’ respective conditions.” Id. Thus, the question is whether the new

information drastically changed the circumstances “so that the ALJ erred by continuing

to rely on an outdated assessment . . . and by evaluating himself the significance of [the

subsequent] report, or whether the updated information was minor enough that the ALJ

did not need to seek a second opinion.” Id. (internal citations omitted). There, the court

ultimately remanded because the new x-rays were inconsistent with the ALJ’s opinion.

The narrow question for this Court is whether the ALJ supported his opinion with

substantial evidence. While the Seventh Circuit has opined that, as a matter of law, MRIs

or x-rays do not require additional medical scrutiny, potentially new and decisive

evidence requires expert evaluation beyond that of the ALJ. Nevertheless, the ALJ’s

opinion must demonstrate to a reviewing court that the new evidence is insubstantial

when weighed against the evidentiary record. Ms. J argues that the ALJ inappropriately

evaluated a March 2019 x-ray and an April 2019 MRI similar to the error in Goins v. Colvin.

[DE 23 at 18]. Here, the Court does not decide whether Ms. J’s new medical evidence is

decisive. Instead, the Court finds that the ALJ did not sufficiently explain why the new

information did not substantially change Ms. J’s RFC.

According to the ALJ, “[w]hile the statements about the intensity, persistence, and

limiting effects of the claimant’s symptoms have been considered carefully; the record in

its entirety, including the objective evidence, is inconsistent with a finding of disability.”

[DE 19 at 19]. Thereafter, the ALJ presented medical evidence and testimony to support

his conclusion regarding Ms. J’s disabled status. [See generally id. at 18-23]. The ALJ wrote

that Ms. J’s March 2019 x-ray “found degenerative disc disease in the mid-to-lower

cervical spine, most severe at C5-C6; flattening of the cervical lordosis; but no instability

demonstrated with flexion and extension views.” [Id. at 21]. Next, the ALJ recounted an

April 2019 evaluation by Ms. J’s physiatrist, which does not directly assess the

significance of the March 2019 x-ray but does state that “[a] lumbar MRI was ordered for

[Ms. J’s] continued complaints of lumbar spondylosis foraminal stenosis.” [Id.]. The ALJ

next summarized Ms. J’s April 2019 MRI as “show[ing] mild lumbar spondylosis with

mild central canal stenosis at L5-S1 to moderate disc protrusion, mild bilateral L5-S1

greater than L4-L5 neural foraminal narrowing, and an incompletely imaged, presumed

uterine fibroid.” [Id. at 22]. The ALJ offered no additional commentary beyond the MRI

summary.

After summarizing Ms. J’s medical history, the ALJ concluded “that the claimant

has the residual functional capacity to perform light exertional work with some

manipulative, postural, and environmental limitations.” [Id.] Further, the ALJ suggested

that he “was somewhat persuaded by the opinions of the State Agency medical

consultants at the reconsideration level,” [Id. at 23], which occurred in September 2018

before the above-mentioned x-ray and MRI. But the ALJ found that subsequent evidence

entered into the record after the evaluation by the government’s experts “shows that the

claimant’s limitations differed from those they found.” [Id.] The ALJ did not elaborate

any further as to what evidence differed from the government’s medical experts.

The fundamental issue is that the ALJ summarized the March 2019 x-ray and April

2019 MRI without further explanation. At no point in the opinion does the ALJ explain

how the evidence is or is not inconsequential to his final determination. Accordingly, the

ALJ did not create a “logical bridge” between the evidence and conclusion as required by

the standard of review. See Beardsley, 758 F.3d at 837. In fact, the situation is akin to Goins

v. Colvin where the ALJ summarized “barely intelligible medical mumbo jumbo” which

stood by itself, unrelated to the rest of the opinion. 764 F.3d at 680. Likewise, in the instant

case, the ALJ summarized medical reports without further connecting them to his overall

opinion and final determination.

The Commissioner, however, suggests that Goins v. Colvin does not apply because

the new evidence here “is relatively straightforward, and the ALJ’s discussion relies on

observations from physicians who provided the reports as well as the observations of

treating sources.” [DE 24 at 12]. Even if, as the Commissioner argues, the evidence is

relatively straightforward, the Court cannot substitute the ALJ’s judgment and reweigh

evidence in the record. See Estok, 152 F.3d at 638 (noting that a court cannot “substitute

its judgment for that of the Commissioner by reconsidering facts, reweighing evidence,

resolving conflicts in evidence, or deciding questions of credibility.”). The purview of the

Court’s review is narrowly based on whether the ALJ demonstrated a logical bridge from

the evidence in the record to a reasonable conclusion.

But here, the ALJ did not explain why the x-ray and MRI are consistent with the

evidentiary record. For example, the ALJ did not compare or contrast the x-ray and MRI

to prior medical findings. Nor did the ALJ accompany the x-ray and MRI summaries with

commentary or context from medical professionals. For instance, the April 2019

evaluation by Ms. J’s physiatrist offers no opinion as to the significance of the March 2019

x-ray. [See DE 19 at 21]. Likewise, the April 2019 MRI contains a summary of complex

medical findings without context as to what those findings mean. [See id. at 22]. As

written by the ALJ, the x-ray and MRI amount to nothing more than medical gibberish,

and therefore, the Court cannot decipher whether the evidence is so inconsequential that

further expert evaluation would be rendered superfluous, or not.

In conclusion, the ALJ did not support his opinion with substantial evidence

because the March 2019 x-ray and April 2019 MRI stand unconnected to the rest of the

opinion. As such, the Court cannot evaluate whether the ALJ committed a legal error in

declining to submit this new evidence for expert review. Without further explanation, the

Court is unable to decipher whether the x-ray and MRI are insubstantial or consequential

enough to change the reliability of the government’s consultants.

V. CONCLUSION

For the reasons discussed above, the Commissioner’s decision is REMANDED for

further consideration consistent with this opinion.

SO ORDERED this 28th day of February 2022.

s/Michael G. Gotsch, Sr.

Michael G. Gotsch, Sr.

United States Magistrate Judge