Scott v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

SHAWN M. S.,1

Plaintiff,

v. CASE NO. 3:22-CV-00712-MGG

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

OPINION AND ORDER

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

Commissioner’s decision denying her applications for Disability Insurance Benefits

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

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

§ 405(g). For the reasons discussed below, the decision of the Commissioner of the

Social Security Administration (“SSA”) is reversed and remanded.

I. OVERVIEW OF THE CASE

Ms. S applied for DIB on June 15, 2020. In her application, she alleged a disability

onset date of June 4, 2020. Ms. S’s application was denied initially on October 21, 2020,

and upon reconsideration on March 18, 2021. Thereafter, Ms. S filed a written request

for hearing received on May 17, 2021. Following a telephone hearing on October 27,

2021, the Administrative Law Judge (“ALJ”) issued a decision on December 2, 2021,

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.

which affirmed the SSA’s denial of benefits. The ALJ found that Ms. S suffers from the

severe impairments of degenerative disc disease; fibromyalgia; neuropathy and obesity.

[DE 13 at 18]. The ALJ also found that Ms. S suffers from the non-severe impairments of

migraine headaches, depression, and anxiety. [Id. at 18-19]. The ALJ determined that

none of Ms. S’s severe impairments, nor any combination of her impairments, meet or

medically equal the severity of one of the listed impairments in 20 C.F.R. Part 404,

Subpart P, Appendix 1. [Id. at 20]. Further, the ALJ found that Ms. S has the residual

functional capacity (“RFC”) to perform sedentary work as defined in 20 C.F.R. §

404.1567(a), but with certain additional limitations. [Id. at 21]. Given Ms. S was limited

to less than the full range of sedentary work, the ALJ determined that she could not

perform her past relevant work as an electronic assembler. [Id. at 24]. However,

considering Ms. S’s age, education, work experience, and RFC, the ALJ found there are

jobs, including sorter, inspector, final assembler, and assembler, that exist in significant

numbers in the national economy that Ms. S can perform. [Id. at 24-25]. Based upon

these findings, the ALJ denied Ms. S’s claim for DIB. [Id. at 26].

On July 11, 2022, the Appeals Council denied Ms. S’s request for review of the

ALJ’s unfavorable decision. [DE 13 at 1]. Thereafter, Ms. S commenced this action

challenging the decision pursuant to 42 U.S.C. § 405(g).

II. DISABILITY STANDARD

In order to qualify for DIB, a claimant must be “disabled” as defined under the

Act. A person is disabled under the Act if “he or she has an inability to engage in any

substantial gainful activity by reason of a medically determinable physical or mental

impairment which can be expected to last for a continuous period of not less than

twelve months.” 42 U.S.C. § 423(d)(1)(A).

The Commissioner’s five-step inquiry in evaluating claims for DIB under the Act

includes determinations as to: (1) whether the claimant is doing substantial gainful

activity (“SGA”); (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 RFC; and (5) whether the claimant is capable of

performing other work. 20 C.F.R. § 404.1520. 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

The court has the authority to review a disability decision by the Commissioner

pursuant to 42 U.S.C. § 405(g). However, the court’s role in reviewing Social Security

cases is limited. Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008). 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 Similia v. Astrue, 573 F.3d 503, 513 (7th Cir.

2009)). Although “the threshold for such evidentiary sufficiency is not high,” substantial

evidence still requires “more than a mere scintilla.” Biestek v. Berryhill, 139 S. Ct. 1148,

1154 (2019) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). It means

“such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Kepple v. Massanari, 268 F.3d 513, 516 (7th Cir. 2001) (internal citation and

quotation marks omitted). 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, 708-09 (7th Cir. 2013).

Additionally, 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). An

ALJ’s decision will lack sufficient evidentiary support and require remand if it is clear

that 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). At a minimum, an 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). While the ALJ need not specifically address every piece of evidence in

the record to present the requisite “logical bridge” from the evidence to his conclusions,

the ALJ must at least provide a glimpse into the reasoning behind his analysis and the

decision to deny benefits. O’Connor-Spinner v. Astrue, 627 F.3d 614, 618 (7th Cir. 2010);

see also Minnick v. Colvin, 775 F.3d 929, 935 (7th Cir. 2015).

Thus, the question upon judicial review is not whether the claimant is, in fact,

disabled, but whether the ALJ used “the correct legal standards and the decision [was]

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

When reviewing the Commissioner’s findings under Section 405(g), the court cannot

reconsider facts, reweigh the evidence, decide questions of credibility, or otherwise

substitute its own judgment for that of the ALJ. Clifford, 227 F.3d at 869. Where

conflicting evidence allows reasonable minds to reach different conclusions about a

claimant’s disability, the responsibility for the decision falls on the Commissioner.

Edwards v. Sullivan, 985 F.2d 334, 336 (7th Cir. 1993). If, however, an error of law is

committed by the Commissioner, then the “court must reverse the decision regardless

of the volume of evidence supporting the factual findings.” Binion v. Chater, 108 F.3d

780, 782 (7th Cir. 1997). Finally, where it is clear the ALJ’s decision would not be

overturned by remanding the issue for further consideration, the doctrine of harmless

error applies to prevent remand. Keys v. Barnhart, 347 F.3d 990, 994-95 (7th Cir. 2003).

IV. ANALYSIS

Ms. S argues that (a) the ALJ did not evaluate her allegations regarding her

subjective symptoms in the manner required by Social Security Ruling (“SSR”) 16-3p;

and that (b) the ALJ’s finding as to the persuasiveness of the opinions provided by Dr.

Gupta is predicated on a legally erroneous evaluation of the factors required by the

regulations, and his reasoning is inadequate and unsupported by substantial evidence.

A. Subjective Symptom Analysis

Under SSR 16-3p, if a claimant alleges impairment-related symptoms, such as

pain, the ALJ must use a two-step process to determine whether the claimant’s alleged

symptoms are consistent with the evidence in the record. SSR 16-3p; see also 20 C.F.R.

§ 404.1529(a). First, the ALJ must consider whether the existence of a medically

determinable impairment could reasonably be expected to produce the alleged

symptoms. Then, he must evaluate the intensity and persistence of those symptoms to

determine the extent to which they impede the claimant’s ability to perform work-

related tasks. SSR 16-3p; see also 20 C.F.R. § 404.1529(c)(1). When considering the

intensity, persistence, and limiting effects of a claimant’s symptoms, the ALJ must

“examine the entire case record, including the objective medical evidence; an

individual’s statements about the intensity, persistence, and limiting effects of

symptoms; statements and other information provided by medical sources and other

persons; and any other relevant evidence in the individual’s case record.” SSR 16-3p. “If

an individual's statements about the intensity, persistence, and limiting effects of

symptoms are consistent with the objective medical evidence and the other evidence of

record,” the ALJ will determine that the individual's symptoms are more likely to

reduce her capacities to perform work-related activities, and vice versa. Id. Regardless

of the conclusion the ALJ arrives at, his decision “must contain specific reasons for the

weight given to the individual’s symptoms, . . . be consistent with the evidence, [and] be

clearly articulated” to allow for subsequent review. Id.

1. Logical Bridge

Ms. S argues that by failing to provide a clear articulation of how and why the

medical evidence in the record is inconsistent with the subjective symptoms she alleges,

the ALJ improperly applied SSR 16-3p, and therefore erred as a matter of law.

In challenging the ALJ’s RFC analysis, Ms. S does not dispute the fact that the

ALJ discussed evidence related to her degenerative disc disease and fibromyalgia, as

well as her testimony about her ability to stand, walk, and sit. Indeed, at step one of the

symptoms-evaluation analysis, the ALJ took care in noting allegations of disability due

to deteriorating disk disease in her back, arthritis in the entire body, fibromyalgia, and

neuropathy in the legs in the initial disability report Ms. S submitted. [DE 13 at 24]. The

ALJ added that Ms. S attributed her inability to “feel on her left side” and her pain

when walking to neuropathy. [Id.]. Considering these relevant facts, the ALJ concluded

that Ms. S’s medically determinable impairments could reasonably be expected to cause

the alleged symptoms.

Then, the ALJ moved on to step two of the SSR 16-3p analysis, evaluating the

intensity and persistence of the alleged symptoms to determine the extent to which they

impede Ms. S’s ability to perform work-related tasks. In doing so, the ALJ devoted a

significant portion of the opinion to discussing medical evidence, findings of non-

examining consultants, and the opinions of the consultative examiner, Dr. Gupta. [DE

13 at 24-27]. The ALJ first referenced Ms. S’s treatment records from North Central

Neurosurgery [Id. at 242-59] while acknowledging that Ms. S underwent lumbar fusion

on January 15, 2019, and noting that a postoperative MRI showed significant

improvement leading Ms. S to return to work after the surgery. [Id. at 25, 257]. The ALJ

also noticed that Ms. S visited the neurosurgeon, complaining of lower back pain

radiating down her bilateral lower extremities, beginning in April 2020, a few months

before the onset date. [Id. at 25, 258]. He further cited the results of the physical exam

the neurosurgeon performed on Ms. S., including hypersensitivity to touch over the

lateral thighs and the SI joints, positive leg raises (producing pain in the low back), and

negative foot drop. [Id. at 25, 259]. Ms. S’s calf muscle strength was also observed to be a

little weaker on the right side than the left, but the nurse practitioner was unsure

whether Ms. S produced a good effort during the muscle testing. [Id.].

The ALJ found an updated lumbar diagnostic image produced in May 2020

showing degenerative and postoperative changes. [DE 13 at 462]. The diagnostic

injection therapy for her sacroiliac back pain offered some relief to her right side. [Id. at

465]. The neurosurgeon indicated that Ms. S had not yet returned to work “in spite of

being released.” [Id.]. A few months later, in October 2020, Ms. S complained of lower

back pain with radiation to both legs as well as generalized body pain. [Id. at 407].

Interestingly, as the ALJ observed, both the neurosurgeons and family care providers

documented Ms. S’s failure to do prescribed physical therapies and participate in any

stretching or exercising program when ordered. [Id. at 26, 407, 465].

Next, the ALJ summarized the opinion of the consultative examiner, Dr. Gupta.

According to the ALJ, Dr. Gupta reported that Ms. S: (1) was in no painful distress

during the consultative examination; (2) exhibited full range of motion in all upper

extremities with 5/5 strength in all upper major muscle groups; but (3) presented with

pain bilaterally in her hips, legs, and left ankle with only 3/5 strength in both legs, full

range of motion in all her lower extremities, and 5/5 strength in all other lower major

muscle groups. [Id. at 26, 440-41].

In challenging the RFC, Ms. S contends the ALJ made the legal error of providing

no logical bridge between the evidence cited by the ALJ and his finding. Without the

logical bridge, Ms. S argued, it is “unclear how the ALJ reached his conclusion that the

objective evidence was inconsistent with [her] allegations regarding her inability to

perform basic work activities.” [DE 17 at 10]. Courts have found that as long as the ALJ

“identified supporting evidence in the record and built a ‘logical bridge’ from that

evidence to its conclusion,” the reviewing court must affirm. Schloesser v. Berryhill, 870

F.3d 712, 717 (7th Cir. 2017) (quoting Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir.

2005)); see also Steele v. Barnhart, 290 F.3d 936, 941 (7th Cir. 2002). The ALJ need not to

provide a “complete written evaluation of every piece of testimony and evidence.” Diaz

v. Chater, 55 F.3d 300, 308 (7th Cir. 1995) (citing Carlson v. Shalala, 999 F.2d 180, 181 (7th

Cir. 1993) (per curiam)). But the ALJ cannot merely recite medical evidence without

analyzing it. Craft v. Astrue, 539 F.3d 668, 677 (7th Cir. 2008). Here, contrary to Ms. S’s

assertions, the ALJ’s discussion of records does build a logical bridge between relevant

evidence and his determination that Ms. S’s statements concerning the intensity,

persistence, and limiting effects of these symptoms are inconsistent with the record.

First, the ALJ clearly articulated the rationale behind his finding. He found Ms.

S’s allegations were inconsistent with objective medical evidence because much of her

regular treatment occurred prior to the alleged onset date. [DE 13 at 25]. Additionally,

there were many instances where Ms. S was found to be non-compliant with her

doctors’ instructions and prescriptions. When determining whether symptom intensity

and persistence affect an individual’s ability to perform work-related activities, the ALJ

will consider her “attempts to seek medical treatment for symptoms and to follow

treatment once it is prescribed.” SSR 16-3p, 2017 WL 5180304, at *9 (Oct. 25, 2017).

Persistent attempts to obtain relief of symptoms, such as increasing dosages and

changing medications, trying a variety of treatments, referrals to specialists, or

changing treatment sources may be an indication that an individual’s symptoms

are a source of distress and may show that they are intense and persistent. In

contrast, if the frequency or extent of the treatment sought by an individual is not

comparable with the degree of the individual’s subjective complaints, or if the

individual fails to follow prescribed treatment that might improve symptoms, we

may find the alleged intensity and persistence of an individual’s symptoms are

inconsistent with the overall evidence of record.

Id.

Here, there were many occasions when Ms. S did not follow her doctors’ orders

in seeking treatment. It was first noted in the April 2020 neurosurgeon notes that she

had “poor compliance with physical therapy” and was not participating in any exercise

or stretching program. [DE 13 at 259]. In May 2020, the neurosurgery office again

indicated that Ms. S did not participate in “any stretching or exercise program, and

she . . . failed to attend therapy when ordered.” [Id. at 465]. Her family doctor also

mentioned in her treatment record in October 2020 that she “failed to do physical

therapy.” [Id. at 407]. Despite her doctors’ numerous attempts at urging her to do

physical therapy to alleviate her pain, Ms. S repeatedly disregarded their advice. Taking

account of Ms. S’s failure to pursue prescribed treatment, the ALJ found inconsistencies

between evidence in the record and the alleged intensity and persistence of Ms. S’s

symptoms. The ALJ also mentioned that Ms. S stopped taking Savella, a fibromyalgia

medication she claimed helped her while acknowledging that cost may have been an

issue due to a gap in Ms. S’s insurance coverage.2

2 The record shows that she lacked health insurance from at least July 2020 through August 2021. [DE 13

at 407, 430, 439, 460]. The ALJ did not question Ms. S at the hearing about her non-compliance or her pain

doctor’s discontinuation of service due to her uninsured status. ALJs should explore an individual’s

reasons for not seeking treatment before drawing any inferences about her condition. Thomas v. Colvin,

826 F.3d 953, 961 (7th Cir. 2016); see also Craft, 539 F.3d at 679. However, Ms. S bears the burden of

showing errors in the ALJ’s decision. See Fortenberry v. Berryhill, No. 3:16CV648-PPS, 2017 WL 5477170, at

*6 (N.D. Ind. Nov. 14, 2017). Ms. S did not discuss her insurance gap in her brief, so the Court need not

elaborate on this further.

Second, the ALJ was attentive to resolving discrepancies among conflicting

medical consultant opinions from the State Agency. Citing evidence such as the “EMG,

diagnostic imaging of the lumbar spine, some reports of pain and issues with

ambulation, 3/5 muscle strength in the lower extremities and some positive straight leg

raising bilaterally,” the ALJ found the consultative opinion at the initial level of review

unpersuasive because it only limited Ms. S to less than the full range of light work. [DE

13 at 26]. The ALJ found that the evidence in the record, including Ms. S’s allegations,

supported a more restrictive RFC of less than the full range of sedentary work. [Id.]. In

reaching his conclusion about Ms. S’s RFC, the ALJ identified relevant pieces of

evidence and explained how they supported his conclusion. As such, the ALJ built a

logical bridge to his conclusion.

Contrary to Ms. S’s assertion, a review of the record also shows the ALJ provided

a logical bridge between relevant evidence and his finding that Ms. S’s symptoms of

pain and issues with lower-body ambulation may not be as severe as she alleged.

Admittedly, the ALJ could have articulated a more thorough analysis of Ms. S’s

ambulation issues. Nevertheless, his opinion is not entirely bereft of analysis and was

sufficient to allow this Court to trace the path of his reasoning and to be assured the ALJ

has considered the important evidence in the record. Scott, 297 F.3d at 595. Therefore,

the ALJ supported his conclusion regarding any limitations in ambulation with

substantial evidence.

2. Intensity, Persistence, and Limiting Effects of Symptoms

Ms. S contends the ALJ erred in not considering other relevant factors listed in

SSR 16-3p when evaluating the intensity, persistence, and limiting effects of her

symptoms.3 Specifically, Ms. S argues the ALJ did not properly analyze her testimony

on daily activities and failed “to explain the basis for his conclusion that [her]

allegations are inconsistent with the evidence of record.” [DE 17 at 10-11]. In support,

Ms. S cites her hearing testimony alleging she cannot walk more than fifty to a hundred

feet before needing to rest; is very unsteady on her feet and requires the use of a cane

for balance and support; and needs to elevate her legs four to five times a day. [DE 13 at

44-47]. Ms. S indicates, given her above-stated condition, she is incapable of performing

sedentary work because such jobs require the ability to stand and/or walk for about

two hours out of an eight-hour workday. Ms. S suggests the ALJ merely gave “lip

service” to her testimony and failed to analyze how her limited daily activities would

affect her ability to function in a work setting. According to Ms. S, a proper evaluation

of her statements by the ALJ would have led him to find her incapable of meeting the

physical requirements of sedentary work and would have found her to be disabled.

As affirmed by SSR 16-3p, ALJs consider all evidence from a claimant’s medical

and nonmedical sources about the effect of symptoms. 20 C.F.R. § 404.1529(c)(1). Factors

3 In her brief, Ms. S challenged the ALJ’s “credibility” determination citing SSR 16-3p. [DE 17 at 10].

However, SSR 16-3p explicitly rescinded SSR 96-7p and prohibits ALJs from assessing a claimant’s overall

character and truthfulness (i.e., a claimant’s credibility). SSR 16-3p requires ALJs to consider all evidence

when evaluating the intensity and persistence of symptoms and look for consistency of symptoms among

various sources in the record. Accordingly, the Court will not reference “credibility,” and will discuss

only the standard applicable under SSR 16-3p.

considered in assessing the effects of a claimant’s symptoms include: daily activities; the

location, duration, frequency, and intensity of pain or other symptoms; measures other

than treatment an individual uses or has used to relieve pain or other symptoms; and

any other factors concerning an individual’s functional limitations and restrictions due

to pain or other symptoms. Id. § 404.1529(c)(3). “If there is no information in the

evidence of record regarding one of the factors, [the ALJ] will not discuss that specific

factor . . . because it is not relevant to the case.” SSR 16-3p, 2017 WL 5180304, at *8 (Oct.

25, 2017).

To start, daily activities are descriptions of what a claimant does on a day-to-day

basis. See, e.g., Craft, 539 F.3d at 673 (“[Claimant] cooked his own meals, walked to the

mailbox daily, vacuumed once a week, and occasionally drove . . . .”). Despite alleging

that the ALJ did not properly consider her daily activities in assessing her subjective

symptoms, Ms. S did not identify any particular evidence about her daily activities that

the ALJ did not consider. Instead, Ms. S merely argues that the ALJ failed to evaluate

general statements like she “is essentially unable to walk due to pain,” and she

“sometimes stumbles or becomes off balance due to her neuropathy.” [DE 17 at 10]. Ms.

S’s argument in no way connects these statements on her physical limitations to her

daily activities. With nothing more, Ms. S has failed to develop an argument for the

Court to consider. Cf. United States v. Beavers, 756 F.3d 1044, 1059 (7th Cir. 2014)

(“Perfunctory, undeveloped arguments without discussion or citation to pertinent legal

authority are waived.” (quoting Mahaffey v. Ramos, 588 F.3d 1142, 1146 (7th Cir. 2009))).

Thus, Ms. S has not established that the ALJ committed any legal error in his analysis of

her daily activities.

Additionally, the ALJ did not disregard Ms. S’s testimony as she alleges. In fact,

the ALJ explicitly referenced Ms. S’s October 2021 hearing testimony, which included

her capacity to “stand for about 20 minutes or so at a time; walk about 50 to 100 feet and

sit for up to one hour,” her experiences of “generalized pain all over,” and her inability

to “bend over to pick something up.” [DE 13 at 25, 44-47]. Ms. S argues the ALJ merely

gave “lip service to these statements.” [DE 17 at 10]. Yet, the ALJ accounted for her

testimony and the effects of her symptoms on her ability to function in a work setting

by incorporating limitations into her RFC, including mandatory use of a medically

necessary cane at all times while walking, as well as no balancing, working around

unprotected heights, and climbing ladders, ropes, or scaffolds. [DE 13 at 24-25].

Moreover, the ALJ does not need to address every piece of evidence, as long as he

provides a “logical bridge” between the evidence and his conclusion. O’Connor-Spinner,

627 F.3d at 618 (quoting Getch v. Astrue, 539 F.3d 473, 480 (7th Cir. 2008); Clifford, 227

F.3d at 872). Hence, the ALJ may omit minor pieces of evidence in discussing his

reasoning.

Even if the ALJ had included every fact included in Ms. S’s records in his

decision and had explicitly spelled out how each of her alleged symptoms affects her

ability to function in a work setting, he was not required to credit the testimony as

convincing evidence. SSR 16-3p requires the ALJ to look also at objective medical

evidence when evaluating an individual's statements about the intensity, persistence,

and limiting effects of symptoms.

If an individual's statements about the intensity, persistence, and limiting effects

of symptoms are consistent with the objective medical evidence and the other

evidence of record, we will determine that the individual's symptoms are more

likely to reduce his or her capacities to perform work-related activities . . . . In

contrast, if an individual's statements about the intensity, persistence, and

limiting effects of symptoms are inconsistent with the objective medical evidence

and the other evidence, we will determine that the individual's symptoms are

less likely to reduce his or her capacities to perform work-related activities . . . .

SSR 16-3p, 2017 WL 5180304, at *8.

Here, Ms. S cites no other objective evidence, besides her hearing testimony, that

corroborates her alleged need to elevate her legs four to five times a day, stand for only

about twenty minutes or so at a time, and sit for up to one hour. Ms. S did not even

direct the Court’s attention to any communications with her medical providers about

such effects of her symptoms on her daily life. Information an individual provides to

treating physicians may be compared with other statements in the record to evaluate

the intensity, persistence, and limiting effects of her symptoms. See SSR 16-3p, 2017 WL

5180304, at *7. If Ms. S had conveyed the above-mentioned needs to her physicians

during checkups, her treatment records may shed some light on her subjective

symptoms. Thus, Ms. S has not shown that the ALJ failed to support his evaluation

about the limiting effects of her symptoms with substantial evidence or other otherwise

committed any error with regard to her hearing testimony.

B. Persuasiveness of Dr. Gupta’s Consultative Opinion

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.” Id. § 404.1520c(b). The

persuasiveness of a medical source’s opinion is based upon analysis of these 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. Id.

§ 404.1520c(c)(1)–(5). The most important factors when assessing the persuasiveness of a

medical opinion are supportability and consistency. Id. § 404.1520c(b)(2). Indeed, the

ALJ is required to explain how he considered the supportability and consistency factors

for a medical source's medical opinions or prior administrative medical findings in the

decision. 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)).

Dr. Gupta opined Ms. S is unable to perform work-related activities, such as

walking or lifting, but is able to sit, stand, carry, and handle objects. [DE 13 at 447]. The

ALJ was not persuaded by Dr. Gupta’s conclusion. Ms. S contends that the ALJ’s

assessment of Dr. Gupta’s medical opinion is legally deficient as he failed to address the

consistency factor, while summarily rejecting the opinion’s finding. More specifically,

Ms. S argues the ALJ disregarded numerous pieces of medical evidence that were

consistent with Dr. Gupta’s opinion. Additionally, Ms. S claims the ALJ’s evaluation of

the supportability factor is lacking because he failed to explain how Dr. Gupta’s opinion

is internally inconsistent.

When evaluating the consistency of a medical opinion, the ALJ should bear in

mind that “the more consistent a medical opinion(s) or prior administrative medical

finding(s) is with the evidence from other medical sources and nonmedical sources in

the claim, the more persuasive the medical opinion(s) or prior administrative medical

finding(s) will be.” 20 C.F.R. § 404.1520c(c)(2). The ALJ must explain how he considered

the consistency factor as part of his persuasiveness analysis of a medical opinion. See id.

Here, within the single paragraph where the ALJ evaluated the persuasiveness of Dr.

Gupta’s consultative medical opinion, the ALJ simply listed Dr. Gupta’s observations

during his examination of Ms. S and declared they are inconsistent with Ms. S’s

supposed inability to do work-related activities such as walking or lifting. [DE 13 at 26-

27]. The ALJ neither explained the rationale behind his determination nor compared Dr.

Gupta’s opinion to any other medical or nonmedical source in the record, which is at

odds. with the legal standards for reviewing social security cases. Courts have held

general statements that a medical opinion is not consistent with the record are

insufficient. 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 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.”). As such, the ALJ here

failed to articulate how he considered the consistency of Dr. Gupta’s opinion with other

evidence in the record. Such an omission constitutes an error of law. See id.

§ 404.1520c(b)(2).

When evaluating the supportability factor, ALJ should take into account that

“[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) or prior

administrative medical finding(s), the more persuasive the medical opinions or prior

administrative medical finding(s) will be.” Id. § 404.1520c(c)(2). Here, Ms. S contends

that the ALJ’s evaluation of the supportability factor is lacking because he failed to

explain how Dr. Gupta’s opinion is internally inconsistent. The ALJ discussed the

internal consistency of Dr. Gupta’s opinion as follows:

The complete inability to walk or lift is inconsistent with the physical

exam conducted by this doctor where he found 5/5 strength and full

range of motion in all upper major muscle groups; 3/5 strength in the

bilateral legs, but 5/5 strength and full range of motion in all other lower

major muscle groups; 5/5 grip strength with good fine finger

manipulative abilities and peripheral pulses are palpable at 4/4. Also, it is

internally inconsistent to state that claimant is completely unable to walk

when walking was performed during the physical exam; and it is

internally inconsistent to find that the claimant cannot walk or lift but can

carry because carrying an object requires a person to lift it, stand with it,

and then walk with it.

[DE 13 at 26-27].

As Ms. S asserts, the “ALJ’s logic is hard to follow.” [DE 17 at 14]. The ALJ

mischaracterized Dr. Gupta’s opinion in two instances while attempting to explain why

he found the opinion internally inconsistent. First, the ALJ could not reconcile what he

perceived to be Dr. Gupta’s opinion that Ms. S is completely unable to walk when Dr.

Gupta noted that Ms. S was observed walking during the consultative exam. [DE 13 at

27]. Yet Dr. Gupta never concluded Ms. S could not walk at all. Rather, he opined Ms. S

is unable to do work-related activities, such as walking or lifting. [Id. at 447]. Based on

this mischaracterization of Dr. Gupta’s opinion, the ALJ did not account for the

possibility that Ms. S could both walk briefly during the one-time consultative

examination but still be unable to meet the walking demands of a job.

This Court confronted a similar issue in a different case where the ALJ rejected

the medical opinion of a consultative examiner by reading the physician’s opinion to

mean the claimant was completely unable to handle objects, when the physician meant

the claimant was unable to handle objects in a way that would be required in a job.

Walls v. Kijakazi, No. 2:21-cv-68-JPK, 2022 WL 4377379, at *12 (N.D. Ind. Sept. 22, 2022).

Ironically, Dr. Gupta was also the consultative examiner in Walls. The Court found that

the ALJ’s “contrary and improbable interpretation of Dr. Gutpa’s opinion . . . [was] not

supported by a fair reading of the opinion.” Id. The same is true in Ms. S’s case.

Second, the ALJ found Dr. Gupta’s opinion that Ms. S “cannot walk or lift but

can carry” internally inconsistent explaining that “carrying an object requires a person

to lift it, stand with it, and then walk with it.” [DE 13 at 27]. The ALJ seems convinced

that the act of carrying inherently involves lifting and implies that a person cannot

claim to have the ability to carry while also lacking the ability to lift. Once again, the

ALJ’s analysis is grounded in confusing, if not faulty, logic as there are presumably

work settings where a person need not lift an object to carry it such as having another

person place it in her arms or even slide it off a shelf at waist height.

Having failed to accurately describe Dr. Gupta’s opinion about Ms. S’s ability to

work, the ALJ has not supported his assessment of the supportability factor with

substantial evidence. His attempt to distinguish Dr. Gupta’s opinion from his

observations about her strength, range of motion, and manipulative abilities cannot

compensate for those shortcomings because it is based on the same overstatement of Dr.

Gupta’s opinion.

By failing to properly address the consistency factor and by mischaracterizing

Dr. Gupta’s opinion in the supportability analysis, the ALJ’s evaluation of the

persuasiveness of Dr. Gupta’s medical opinion is not supported by substantial evidence

such that remand is warranted.

V. CONCLUSION

For the above reasons, the case is REVERSED and REMANDED pursuant to

sentence four of 42 U.S.C § 405(g).

SO ORDERED this 14th day of March 2024.

s/Michael G. Gotsch, Sr.

Michael G. Gotsch, Sr.

United States Magistrate Judge