Sparks v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

CHRISTINA S.1,

Plaintiff,

v. CASE NO. 3:21-CV-261-MGG

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

OPINION AND ORDER

Plaintiff Christina S. (“Ms. S”) seeks judicial review of the Social Security

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

(“DIB”) under Title II of the Social Security Act (“Act”). This Court may enter a ruling

in this matter based on the parties’ consent pursuant to 28 U.S.C. § 636(c)(1) and 42

U.S.C. § 405(g). [See DE 9]. For the reasons discussed below, the Court REMANDS the

decision of the Social Security Administration (“SSA”).

I. OVERVIEW OF THE CASE

Ms. S protectively filed for DIB on February 14, 2019. In her application, Ms. S

alleged a disability onset date of August 31, 2018. Ms. S’s claim was denied initially on

July 16, 2019, and upon reconsideration on December 20, 2019. Following a telephone

hearing on August 18, 2020, an Administrative Law Judge (“ALJ”) issued a decision on

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

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

August 28, 2020, finding that Ms. S was not disabled, conducting the requisite five-step

analysis for evaluating claims for disability benefits. 20 C.F.R. § 404.1520.

At Step One, an ALJ’s inquiry focuses on whether a claimant is engaging in

substantial gainful activity. Here, the ALJ determined that Ms. S had not engaged in

substantial gainful activity from her alleged onset date of August 31, 2018, through the

date of ALJ’s decision on August 28, 2020.

At Step Two, an ALJ’s inquiry focuses on whether a claimant’s impairments are

severe. For an impairment to be considered severe, an impairment or combination of

impairments must significantly limit the claimant’s ability to perform basic work-

related activities. 20 C.F.R. § 404.1521. Here, the ALJ found that Ms. S suffers from the

following severe impairments: obesity; Achilles tendinosis of the left heel; bilateral hip

bursitis; bilateral chondromalacia of the knees; degenerative changes of the lumbar

spine; and post-traumatic stress disorder (“PTSD”). Conversely, an impairment is

considered non-severe when the medical evidence establishes only a slight abnormality

or combination of slight abnormalities that would have no more than a minimal effect

on a claimant’s ability to perform basic work functions. See, e.g., 20 C.F.R. § 404.1522;

S.S.R. 85-28, 1985 WL 56856 (Jan. 1, 1985). Here, the ALJ found that Ms. S had the

following non-severe medically determinable impairments: hypertension; GERD;

Vitamin D deficiency; status-post left cubital tunnel release; and chronic obstructive

pulmonary disorder (“COPD”).

At Step Three, the ALJ found that none of Ms. S’s severe impairments, nor any

combination of her impairments, met or medically equaled the severity of one of the

listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. In making this finding,

the ALJ considered listings 1.02 and 1.04. Accordingly, before moving on to Step Four,

the ALJ proceeded to determine whether Ms. S can perform her past relevant work

based upon her residual functional capacity (“RFC”).

A claimant’s RFC includes limitations for all medically determinable

impairments, including non-severe impairments. 20 C.F.R. § 404.1545(a)(2). The RFC is

the most that the individual can do despite her limitations. 20 C.F.R. § 404.1545(a).

Physical exertion levels in an RFC are classified as either sedentary, light, medium,

heavy, or very heavy. 20 C.F.R. § 404.1567. Here, the ALJ found that Ms. S has the RFC

to perform light work as defined in 20 C.F.R. § 404.1567(b) with certain postural and

hazard limitations:

the claimant can lift, carry, push, and/or pull 20 pounds occasionally and

10 pounds frequently; stand and/or walk up to 6 hours in an 8-hour

workday; and sit up to 6 hours in an 8-hour workday. 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 must avoid concentrated exposure to wetness and hazards, such

as unprotected heights. The claimant can understand, remember, and

carryout simple instructions. The claimant can relate on a superficial and

ongoing basis with coworkers and supervisors but no interaction with the

public. The claimant cannot perform fast paced assembly type work but

can satisfy end of day goals. The claimant can tend to tasks for a sufficient

time to complete tasks. The claimant can manage the stresses involved

with detailed work-related tasks.

Based on this RFC, at Step Four, the ALJ found that Ms. S was unable to perform her

past relevant work as a glass cutter (work that is generally done at the

semiskilled/heavy exertion level but was performed by Ms. S at the medium and heavy

exertional levels). [Id. at 28]. Accordingly, the ALJ moved on to the last step in the five-

step sequential analysis to determine whether Ms. S can perform other work.

At Step Five, the burden of proof shifts to the SSA Commissioner, who must

“provid[e] evidence that demonstrates that other work exists in significant number in

the national economy that [the claimant] can do, given [her] residual functional capacity

and vocational factors.” 20 C.F.R. § 404.1560(c)(2); see also Liskovitz v. Astrue, 559 F.3d

736, 742-43 (7th Cir. 2009). ALJs typically enlist a vocational expert (“VE”) to testify

regarding which occupations, if any, a claimant can perform. See S.S.R. 83-12. VEs use

information from the Dictionary of Occupational Titles (“DOT”) to inform their

assessments of a claimant’s ability to perform certain types of work. S.S.R. 00-4p, 2000

WL 1898704, at *2 (Dec. 4, 2000). Here, the VE, using the DOT, identified the following

four representative jobs that Ms. S could still perform—office helper, laundry sorter,

small products assembler, and mail clerk, which, respectively, have 15,000 jobs

nationally, 40,000 jobs nationally, 280,000 jobs nationally, and 170,000 jobs nationally.

Finding that Ms. S could make an adjustment to other work that existed in

significant numbers in the national economy, the ALJ determined that Ms. S was not

under a disability, as defined in the Act, from her alleged onset date through the date of

the decision. [DE 16 at 20, 29; AR 16, 25]. The ALJ’s decision became the final decision of

the Commissioner when the SSA Appeals Council declined review on February 9, 2021.

See Fast v. Barnhart, 397 F.3d 468, 470 (7th Cir. 2005).

Ms. S sought judicial review of the Commissioner’s decision on April 15, 2021.

Ms. S filed her opening brief on December 30, 2021, and the Commissioner filed her

Memorandum in Support of Decision on March 10, 2022. This matter became ripe on

March 24, 2022, when Ms. S filed her reply.

II. LEGAL STANDARD

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

pursuant to 42 U.S.C. § 405(g). However, this Court’s role in reviewing social security

cases is limited. Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008). The question on judicial

review is not whether the claimant is disabled; rather, the Court considers whether the

ALJ used “the correct legal standards and [whether] the decision is supported by

substantial evidence.” Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2007).

The Court must uphold the ALJ’s decision so long as it is supported by

substantial evidence. Thomas v. Colvin, 745 F.3d 802, 806 (7th Cir. 2014) (citing Simila v.

Astrue, 573 F.3d 503, 513 (7th Cir. 2009)). Substantial evidence is “more than a scintilla

but may be less than a preponderance.” Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir.

2007). Substantial evidence has also been understood as “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Richardson v.

Perales, 402 U.S. 389, 401 (1971); see also Summers v. Berryhill, 864 F.3d 523, 526 (7th Cir.

2017). The Supreme Court has also noted that “substantial evidence” is a term of art in

administrative law, and that “whatever the meaning of ‘substantial’ in other contexts,

the threshold for such evidentiary sufficiency is not high” in social security appeals.

Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). The Court reviews the entire

administrative record to determine whether substantial evidence exists, but it may not

reconsider facts, reweigh the evidence, resolve conflicts of evidence, decide questions of

credibility, or substitute its judgment for that of the ALJ. Young v. Barnhart, 362 F.3d 995,

1001 (7th Cir. 2004). Accordingly, at a minimum, the ALJ must articulate his analysis of

the record to allow the reviewing court to trace the path of his reasoning and to be

assured the ALJ has considered the important evidence in the record. Scott v. Barnhart,

297 F.3d 589, 595 (7th Cir. 2002). The ALJ is not required to address every piece of

evidence in the record so long as he provides a glimpse into the reasoning behind his

analysis to build the requisite “logical bridge” from the evidence to his conclusions.

Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008).

On the other hand, the deference for the ALJ’s decision is lessened where the

ALJ’s findings contain errors of fact or logic or fail to apply the correct legal standard.

Schomas v. Colvin, 732 F.3d 702, 709 (7th Cir. 2013). Likewise, an ALJ’s decision cannot

stand if it lacks evidentiary support or inadequately discusses the issues. Lopez v.

Barnhart, 336 F.3d 535, 539 (7th Cir. 2003). “The ALJ must confront the evidence that

does not support his conclusion and support why that evidence was rejected.” Moore v.

Colvin, 743 F.3d 1118, 1123 (7th Cir. 2014). An ALJ’s decision will lack sufficient

evidentiary support and require remand if the ALJ “cherry-picked” the record to

support a finding of non-disability. Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010); see

also Wilson v. Colvin, 48 F. Supp. 3d 1140, 1147 (N.D. Ill. 2014).

III. ANALYSIS

In her opening brief, Ms. S contends that the ALJ’s RFC determination is not

supported by substantial evidence and is the product of legal error because the ALJ

failed to properly evaluate the medical opinion of the SSA consultative examiner, Dr. R.

Gupta. [DE 17 at 1]. Specifically, Ms. S maintains that the ALJ mischaracterized Dr.

Gupta’s medical opinion and dismissed it without adequately evaluating the opinion

for supportability and consistency as required by SSA’s regulations. In response, the

Commissioner contends that the ALJ appropriately considered Dr. Gupta’s consultative

examination report and included limitations in the RFC that were supported by the

record.

For claims filed after March 27, 2017, such as Ms. S’s claim, an ALJ “does not give

any specific evidentiary weight, including controlling weight, to any medical opinion(s)

or prior administrative medical finding(s), including those from [a claimant’s] medical

sources.” 20 C.F.R. § 404.1520c(a). The regulations instead require an ALJ to explain

“how persuasive [he] find[s] all of the medical opinions and all of the prior

administrative findings in [a claimant’s] case record.” 20 C.F.R. § 404.1520c(b).

Persuasiveness of a medical opinion is based upon several factors: supportability;

consistency; relationship with the claimant, including the length of the treatment

relationship, frequency of examination, purpose of the treatment relationship, extent of

the treatment relationship, and examining relationship; and specialization. 20 C.F.R. §

404.1520c(c)(1)-(5).

The most important factors are supportability and consistency. 20 C.F.R. §

404.1520c(b)(2). “Supportability measures how much the objective medical evidence

and supporting explanations presented by a medical source support the opinion,” while

“consistency assesses how a medical opinion squares with other evidence in the

record.” Michelle D. v. Kijakazi, No. 21 C 1561, 2022 WL 972280, at *4 (N.D. Ill. Mar. 31,

2022) (internal citation omitted). Accordingly, “[t]he more relevant the objective medical

evidence and supporting explanations presented by a medical source are to support his

or her medical opinion(s) . . ., the more persuasive the medical opinion(s) . . . will

be.” Id. § 404.1520c(c)(1). Likewise, “[t]he more consistent a medical opinion(s) . . . is

with the evidence from other medical and nonmedical sources in the claim, the more

persuasive the medical opinion(s) . . . will be.” Id.

The ALJ must “explain how [he] considered the supportability and consistency

factors.” Id. “Failure to adequately discuss supportability and consistency requires

remand.” Willis v. Acting Comm’r of Soc. Sec., No. 3:21-cv-178 JD, 2022 WL 2384031, at *3

(N.D. Ind. July 1, 2022) (citing Tammy M. v. Saul, No. 2:20CV285, 2021 WL 2451907, at *7

(N.D. Ind. June 16, 2021)). However, the ALJ is not required to explain how he

considered the other factors if they are not relevant to the decision. Id. Consistent with

general legal standards for reviewing social security cases, an ALJ need only

“minimally articulate his reasoning for how he assessed a medical opinion, [but] he

must still consider the regulatory factors and build a ‘logical bridge’ from the evidence

to his conclusion.” Taylor v. Kijakazi, No. 2:22-cv-32-PPS-JPK, 2023 WL 334601, at *3

(N.D. Ind. Jan. 20, 2023) (internal citation omitted).

A. Dr. Gupta’s Physical Examination and Medical Source Statement

Ms. S attended a consultative examination with Dr. Gupta on May 9, 2019, on

referral from the Disability Determination Bureau. [DE 11 at 22, AR 18; Exhibit B5F, DE

11 at 393, AR 389]. As part of the consultative examination, Dr. Gupta conducted a

physical examination and provided a medical source statement.

Dr. Gupta’s physical examination covered numerous areas. [DE 11 at 394-95; AR

390-91]. The Court recounts certain relevant portions here. Dr. Gupta observed that Ms.

S had “normal vascular breath sounds without wheezing, rhonchi or rales.” [DE 11 at

394; AR 394]. Dr. Gupta also observed that “[t]here is spinous and paraspinal

tenderness in lumbar region with decreased range of motion . . . . There is full range of

motion in cervical and thoracic region.” [Id. at 395; AR 391]. As to Ms. S’s upper

extremities, Dr. Gupta noted that

. . . . There is no stiffness, effusion, amputation, atrophy, ulcers, or edema

in upper extremities. There is pain[,] weakness[,] and numbness and

tingling in bilateral hands with normal range of motion. . . . There is full

range of motion in all upper extremity. Strength is 4/5 in all upper major

muscle groups.

[Id.]. As to Ms. S’s lower extremities, Dr. Gupta observed that “[t]here is pain and

tenderness in left heel/foot causing difficulty with putting weight on foot and wears an

orthopedic boot. . . . there is full range of motion in all lower extremities. Strength is 5/5

in all lower major muscle groups.” [Id.] Dr. Gupta also observed that Ms. S had normal

grip strength and “good fine finger manipulative abilities, including the ability to

button, zip, and pick up coins.” [Id.].

Finally, as to Ms. S’s gait, Dr. Gupta noted that “[s]he has an antalgic/abnormal

gait with an assistive device (cane and orthopedic boot). She is unable to stoop and

squat. She is unable to walk heel to toe and tandemly. She is able to get on and off the

examination table without difficulty and did not require any assistance. She is able to

stand from a sitting position with difficulty.” [Id. (emphasis in original)]. The gait

provision of the physical examination section also included the following question:

“Was a cane or any other assistance device prescribed by a physician?” In response, Dr.

Gupta’s notes provide: “Yes a cane and orthopedic boot that is medically No (is/not

medically necessary).” [DE 11 at 395; AR 391].

Dr. Gupta then provides the following as a “medical source statement”: “[Ms. S]

is unable to do work related activities such as sitting, standing, walking or lifting,

carrying and handling objects due to pain. [Ms. S] is able to hear, see and speak

normally. [Ms. S] is able to understand with normal concentration, memory, and social

interactions.” [DE 11 at 396; AR 392].

Dr. Gupta’s record concludes with a Range of Motion chart indicating that Ms. S

had a reduced range of motion in her lumbar spine and left ankle. [Id. at 397; AR 393].

Specifically, for her lumbar spine, Dr. Gupta reported that Ms. S had a forward flexion

of 20 (normal range of motion listed as 90), extension 10 (normal range of motion listed

as 25), and lateral flexion 20 on each side (normal range of motion listed as 25). For Ms.

S’s left ankle, Dr. Gupta noted that Ms. S’s dorsiflexion was 10 (normal range of motion

listed as 20) and her plantar flexion 10 (normal range of motion listed as 40). See id.

B. The ALJ’s Consideration of Dr. Gupta’s Consultative Examination

The ALJ referenced findings from Dr. Gupta’s physical examination and Dr.

Gupta’s medical opinion in the decision. First, the ALJ cited findings from Dr. Gupta’s

physical examination as part of the discussion of Ms. S’s severe and non-severe

impairments at Step Two and as part of the ALJ’s determination of Ms. S’s RFC at Step

Four.2

At Step Two, the ALJ referenced Dr. Gupta’s grip strength and fine finger

manipulation findings as part of the ALJ’s finding that Ms. S’s status-post left cubital

tunnel release was a non-severe impairment. [DE 11 at 22; AR 18]. The ALJ also

referenced Dr. Gupta’s finding that Ms. S had clear lungs with no wheezing to explain

his determination that Ms. S’s COPD was a non-severe impairment. [See id.]. At Step

Four, the ALJ discussed Dr. Gupta’s finding that Ms. S had tenderness in her lumbar

spine and decreased range of motion, and again referenced Dr. Gupta’s finding as to

Ms. S’s grip strength and fine finger manipulation. The ALJ also stated that “Dr. Gupta

further indicated that [Ms. S] had an antalgic gait but her cane was not medically

necessary as well as full strength in her legs.” [DE 11 at 25; AR 21].

Next, the ALJ considered Dr. Gupta’s medical opinion along with opinions from

the State Agency Consultants, an opinion from Dr. Grove (a podiatrist who treated Ms.

S from approximately December 2018 to April 2019), and the opinion of the State

Agency Psychological Consultant. The ALJ first discussed the opinions of the State

Agency Consultants, who found that Ms. S had an RFC for light work with certain

postural and hazard restrictions. The ALJ found these opinions persuasive, citing to

multiple parts of the record consistent with the State Agency Consultant’s opinions. The

ALJ next discussed Dr. Grove’s opinion that Ms. S could not stand or walk for more

2 The ALJ also discussed Dr. Gupta’s findings regarding Ms. S’s mental impairment. However, Ms. S has

not challenged or otherwise discussed this portion of Dr. Gupta’s report, so the Court will not address it

here.

than 15 minutes every hour. The ALJ found that Dr. Grove’s opinion was not

persuasive because Dr. Grove reached this opinion shortly after Ms. S’s surgery and

because his opinion was only meant to be temporary.

Regarding Dr. Gupta’s opinion, the ALJ acknowledged that Dr. Gupta had

opined that Ms. S could not do work-related activities such as sitting, standing,

walking, and lifting. The ALJ explained that he did not find Dr. Gupta’s opinion

persuasive because “it is not consistent with or supported by the record. The

undersigned notes that [Ms. S] testified at the hearing as to some ability to sit, stand,

and walk as well as complete chores. [citation omitted]. Dr. Gupta’s opinion also fails to

provide any specific restrictions.” [DE 11 at 28; AR 24].

C. Discussion

Ms. S contends that the ALJ “mischaracterized Dr. Gupta’s opinion and

summarily dismissed it one sentence” such that remand is required. [DE 17 at 10]. In

response, the Commissioner maintains that the ALJ properly articulated his

consideration of the supportability and consistency factors regarding Dr. Gupta’s

opinion. As discussed below, the Court agrees with Ms. S that the ALJ failed to

adequately discuss the consistency and supportability factors as to Dr. Gupta’s opinion

such that remand is appropriate.

Here, the ALJ first indicated that the Dr. Gupta’s opinion was not persuasive

because “it is not consistent with or supported by the record.” [DE 11 at 28; AR 24]. As

an initial matter, general statements that a medical opinion is not consistent with the

record are insufficient under the regulations. See, e.g., Willis, 2022 WL 2384031, at *4

(finding that an ALJ’s decision stating that medical opinions were either “not consistent

with the available medial evidence summarized above” or “somewhat consistent with

the available medical evidence summarized above” without describing specific

evidence considered required remand); see also Michael L. v. Saul, No. 2:20CV238, 2021

WL 1811736, at *11 (N.D. Ind. May 6, 2021) (stating “the ALJ cannot merely summarize

the evidence, as a whole, and then conclude that [certain medical] opinions are not

consistent with the evidence as a whole. Rather, the ALJ must build a logical analytical

bridge explaining what particular evidence undermined [certain medical] opinions and

why.”)

The Commissioner contends that the ALJ did discuss evidence inconsistent with

Dr. Gupta’s opinion. Yet the only evidence that the ALJ discussed as inconsistent with

Dr. Gupta’s opinion was Ms. S’s hearing testimony and her responses to a function

report dated April 2, 2019 (Exhibit B3E). Specifically, the ALJ stated that Dr. Gupta’s

opinion about Ms. S’s work-related abilities was not consistent with her hearing

testimony that she had “some ability to sit, stand, and walk as well as complete chores.”

[DE 11 at 28; AR 34]. It is true that Ms. S testified about her ability to sit, stand, walk,

and complete chores at the hearing. Indeed, Ms. S testified that she could stand for

about 15-20 minutes at a time, that she could sit for about 45 minutes in a typical office

chair, and that she could walk for about 20-40 minutes at a time. [DE 11 at 51-53; AR 47-

49]. Ms. S further testified that she could do dishes for about 15 minutes at a time and

that she strains carrying a gallon of milk. [Id.]

However, without further explication that is presently absent from the ALJ’s

decision, it is not apparent how Ms. S’s testimony is inconsistent with Dr. Gupta’s

opinion. To reiterate, Dr. Gupta opined that that Ms. S could not engage in “work

related” sitting, standing, walking and lifting, and Dr. Gupta conducted Ms. S’s

physical examination and provided this medical source statement at the request of the

Indiana Disability Determination Bureau. A medical source statement is a “medical

opinion[] submitted by accepted medical sources, including . . . consultative examiners,

about what an individual can still do despite a severe impairment(s), in particular about

an individual’s physical or mental abilities to perform work-related activities on a

sustained basis.” Social Security Ruling (SSR) 96-5p. Titles II and XVI: Medical Source

Opinions on Issues Reserved to the Commissioner, 61 FR 34471-01. Likewise, an RFC is

ordinarily “an assessment of an individual’s ability to do sustained work-related

physical and mental activities in a work setting on a regular and continuing basis. A

‘regular and continuing’ basis means 8 hours a day, for 5 days a week, or an equivalent

work schedule.” Titles II & Xvi: Assessing Residual Functional Capacity in Initial Claims,

SSR 96-8P (S.S.A. July 2, 1996). In finding Dr. Gupta’s opinion about Ms. S’s “work-

related” sitting, standing, walking and lifting inconsistent with Ms. S’s hearing

testimony, the ALJ’s decision—and even the Commissioner’s response—seems to

misconstrue Dr. Gupta’s medical source statement to mean that Ms. S “was entirely

precluded from doing these activities.” [See DE 21 at 6]. However, that is not what Dr.

Gupta opined—he opined that she could not engage in “work related” sitting, standing,

lifting, and walking. Without more, the Court is unable to trace the ALJ’s logic that an

opinion that Ms. S cannot perform “work-related” sitting, standing, lifting, and walking

is inconsistent with Ms. S’s hearing testimony as to her abilities to engage in these

activities.

The Commissioner also contends that the ALJ discussed Dr. Gupta’s report

throughout the decision and that the ALJ appropriately considered Dr. Gupta’s opinion

in the context of the record as a whole. However, other than Ms. S’s hearing testimony,

the ALJ did not explain what evidence undermined Dr. Gupta’s report. Moreover, the

ALJ’s discussion of Dr. Gupta’s physical examination report was also problematic.

Specifically, while discussing Dr. Gupta’s findings as part of Ms. S’s RFC analysis, the

ALJ wrote that “Dr. Gupta further indicated that [Ms. S] had an antalgic gait but her

cane was not medically necessary . . .” [DE 11 at 25; AR 21]. Yet, in response to the

question as to whether Ms. S had been prescribed a cane or any other assistance device,

Dr. Gupta’s physical examination notes state: “Yes a cane and orthopedic boot that is

medically No (is/not medically necessary).” [DE 11 at 395; AR 391]. Given Dr. Gupta’s

typographical error in this section, there is a clear gap between what the record states

and the ALJ’s statement in the decision. As such, the Court is unable to trace the path of

the ALJ’s reasoning that Dr. Gupta’s examination found that Ms. S’s use of a cane was

not medically necessary.

In sum, without more explanation from the ALJ, there are gaps in the ALJ’s logic

such that the Court cannot trace the path of the ALJ’s reasoning concluding that Dr.

Gupta’s opinion was inconsistent with or not supported by the record. Without more,

the Court can only find that the ALJ misconstrued Dr. Gupta’s opinion regarding Ms.

S’s work-related limitations to be an opinion that Ms. S was entirely unable to engage in

certain maneuvers. This error is further compounded by the ALJ’s factual error stating

that Dr. Gupta’s physical examination found Ms. S’s need for a cane not medically

necessary. Consequently, the Court cannot find that the ALJ built a logical bridge to

explain why Dr. Gupta’s medical opinion was not consistent with or supported by the

record. Craft, 539 F.3d at 673; Taylor, 2023 WL 334602, at *3.

The ALJ also stated that Dr. Gupta’s opinion was not persuasive because it did

not provide any specific restrictions regarding sitting, standing, walking, and lifting.

Ms. S contends that Dr. Gupta’s opinion is supported by the findings from his own

examination. In response, the Commissioner first reiterates the ALJ’s observation that

Dr. Gupta’s opinion did not provide any specific restriction. The Commissioner then

cites to 20 C.F.R. § 404.1513(a)(2) as follows: “A medical opinion is a statement from a

medical source about what you can still do despite your impairment(s) and whether

you have one or more impairment-related limitations or restrictions . . . .” [DE 21 at 5-6].

Though not specifically developed by the Commissioner, one inference from this

reference is that Dr. Gupta’s medical source statement does not constitute a medical

opinion under the regulations. To the extent that the Commissioner is making this

contention, the Court cannot agree. Notably, the Commissioner makes this point

through a mere citation without further argument. As such, it is undeveloped and

considered waived. United States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1992);

Handford ex rel. I. H. v. Colvin, 2014 WL 114173, at *11 (N.D. Ill. 2014) (applying Berkowitz

to underdeveloped arguments in a social security appeal). Likewise, the ALJ clearly

considered Dr. Gupta’s opinion a medical opinion under the rules, and the Court is

limited to the analysis presented by the ALJ. Phillips v. Astrue, 413 F. App’x 878, 883–84

(7th Cir. 2010) (“We confine our review to the reasons offered by the ALJ and will not

consider post-hoc rationalizations that the Commissioner provides to supplement the

ALJ's assessment of the evidence.”); see also Villano v. Astrue, No. 2:07 CV 187, 2009 WL

1803131, at *3 (N.D. Ind. June 23, 2009) (Commissioner’s position limited to the ALJ’s

written decision, especially with respect to the required bridge between facts and

conclusions, thus prohibiting post-hoc rationalization); Golembiewski v. Barnhart, 322

F.3d 912, 916 (7th Cir. 2003) (finding that the Commissioner’s arguments failed because

the Commissioner advanced grounds in support of the decision that were not given by

ALJ and relied upon facts not discussed by the ALJ).

Even considering the Commissioner’s argument arguendo, however, the Court

finds that Dr. Gupta’s report qualifies as a medical opinion. As previously discussed,

Dr. Gupta conducted a consultative examination upon referral from the Disability

Determination Bureau. Dr. Gupta provided an explanation as to what Ms. S is still

capable of doing despite her limitations and expresses her impairment in terms of her

ability to perform certain work demands. For instance, Dr. Gupta discussed Ms. S’s

ability to get on and off the examination table, walk heel to toe, and stand from a sitting

position. Dr. Gupta also articulated Ms. S’s fine finger skills and provided an evaluation

of limits in her range of motion. See Boyles v. Comm'r of Soc. Sec., No. 1:21-CV-442 JD,

2022 WL 16570645, at *3 (N.D. Ind. Nov. 1, 2022) (finding a consultative examiner’s

report qualified as a medical opinion because it indicated, inter alia, how long a claimant

could remain standing, the relative strength of her arms, and an evaluation of fine

finger skills).

The Commissioner also contends that Dr. Gupta’s “vague statement appears to

pronounce [Ms. S] unable to work, but he failed to provide explanatory support to

show that [Ms. S] could not do the activities listed at all.” The Court cannot agree that

Dr. Gupta’s opinion “pronounce[d] [Ms. S] unable to work.” Rather, Dr. Gupta stated

that Ms. S could not perform “work-related” activities such as sitting, standing, lifting,

or walking. This Court has distinguished these types of statements from statements

opining disability. Notably, this Court has explained that sitting, standing, lifting, and

walking are “work-related function[s]” while “opining a claimant is disabled is not a

work-related function.” Michael L., 2021 WL 1811736, at *11 (“Clearly, the

Commissioner’s argument is built on the fallacy that the opinion Plaintiff could not sit

for any length of time was equal to an opinion that Plaintiff was disabled.”); see also

Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012) (finding that a medical opinion is not

automatically disqualified as such merely because it includes a judgment as to

disability).

Finally, the Commissioner also contends that the ALJ’s decision was well-

supported and that Ms. S’s arguments as to supportability improperly ask the Court to

reweigh Dr. Gupta’s opinion and the other evidence considered by the ALJ in the

decision. However, as discussed, given the ALJ’s factual error stating that Dr. Gupta’s

physical examination found Ms. S’s cane not medically necessary and the ALJ’s limited

explanation as to how Ms. S’s testimony was inconsistent with Dr. Gupta’s opinion as to

her work-related abilities, the Court cannot find that the ALJ adequately “consider[ed]”

the regulatory factors and build a ‘logical bridge’ from the evidence to his conclusion.”

Taylor, 2023 WL 334601, at *3 (internal citation omitted). Without that necessary

foundation, this Court is left to speculate as to the reasoning behind the ALJ’s decision.

This makes it impossible to determine if the ALJ’s decision finding that Ms. S was not

disabled was supported by substantial evidence and whether the ALJ created an RFC

consistent with Ms. S’s impairments and limitations. This Court has no alternative but

to remand for further administrative proceedings.

IV. CONCLUSION

Based on the foregoing, the Court cannot find that the ALJ built a logical bridge

from the evidence to his conclusion that Dr. Gupta’s medical opinion was not

persuasive because it was not supported by or consistent with the record. Accordingly,

the decision of the ALJ is REVERSED and the instant action REMANDED for further

administrative proceedings consistent with this opinion.

SO ORDERED this 17th day of March 2023.

s/Michael G. Gotsch, Sr.

Michael G. Gotsch, Sr.

United States Magistrate Judge