BEND v. SAUL

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

GREGORY B.1, )

)

Plaintiff, )

)

v. ) No. 1:19-cv-05011-DLP-SEB

)

ANDREW M. SAUL, Commissioner of the )

Social Security Administration, )

)

Defendant. )

ORDER

Plaintiff Gregory B. requests judicial review of the denial by the

Commissioner of the Social Security Administration ("Commissioner") of his

application for Supplemental Security Income ("SSI") under Title XVI of the Social

Security Act. See 42 U.S.C. §§ 405(g), 1383(c)(3). For the reasons set forth below,

this Court hereby REVERSES the ALJ's decision denying the Plaintiff benefits and

REMANDS this matter for further consideration.

I. PROCEDURAL HISTORY

On May 24, 2016, Gregory protectively filed his application for Title XVI SSI

benefits. (Dkt. 8-2 at 16, R. 15; Dkt. 8-5 at 2, R. 147). Gregory alleged disability

resulting from nerve damage, back issues, immune system issues, chronic pain, and

asthma. (Dkt. 8-6 at 6, R. 162). The Social Security Administration ("SSA") denied

1 In an effort to protect the privacy interests of claimants for Social Security benefits, the Southern

District of Indiana has adopted the recommendations put forth by the Court Administration and

Case Management Committee of the Administrative Office of the United States Courts regarding the

practice of using only the first name and last initial of any non-government parties in Social Security

opinions. The Undersigned has elected to implement that practice in this Order.

Gregory's claim initially on July 25, 2016, (Dkt. 8-4 at 2, R. 80), and on

reconsideration on October 4, 2016. (Id. at 9, R. 87). On November 11, 2016, Gregory

filed a written request for a hearing, which was granted. (Id. at 12, R. 90).

On June 6, 2018, Administrative Law Judge ("ALJ") Teresa Kroenecke

conducted a hearing, where Gregory and vocational expert Constance Brown

appeared in person. (Dkt. 8-2 at 31, R. 30). On October 18, 2018, ALJ Kroenecke

issued an unfavorable decision finding that Gregory was not disabled. (Dkt. 8-2 at

13-24, R. 12-23). On December 20, 2018, Gregory appealed the ALJ's decision. (Dkt.

8-4 at 65-68, R. 143-46). On October 21, 2019, the Appeals Council denied Gregory's

request for review, making the ALJ's decision final. (Dkt. 8-2 at 2, R. 1). Gregory

now seeks judicial review of the ALJ's decision denying benefits pursuant to 42

U.S.C. §§ 405(g) and 1383(c)(3).

II. STANDARD OF REVIEW

To qualify for disability, a claimant must be disabled within the meaning of

the Social Security Act. To prove disability, a claimant must show he is unable 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 twelve

months." 42 U.S.C. § 423(d)(1)(A). To meet this definition, a claimant's impairments

must be of such severity that he is not able to perform the work he previously

engaged in and, based on his age, education, and work experience, he cannot engage

in any other kind of substantial gainful work that exists in significant numbers in

the national economy. 42 U.S.C. § 423(d)(2)(A). The SSA has implemented these

statutory standards by, in part, prescribing a five-step sequential evaluation

process for determining disability. 20 C.F.R. § 416.920(a)2. The ALJ must consider

whether:

(1) the claimant is presently [un]employed; (2) the claimant has a

severe impairment or combination of impairments; (3) the

claimant's impairment meets or equals any impairment listed in

the regulations as being so severe as to preclude substantial

gainful activity; (4) the claimant's residual functional capacity

leaves him unable to perform his past relevant work; and

(5) the claimant is unable to perform any other work existing in

significant numbers in the national economy.

Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 351-52 (7th Cir. 2005) (citation

omitted). An affirmative answer to each step leads either to the next step or, at

steps three and five, to a finding that the claimant is disabled. 20 C.F.R. § 416.920;

Briscoe, 425 F.3d at 352. If a claimant satisfies steps one and two, but not three,

then he must satisfy step four. Once step four is satisfied, the burden shifts to the

SSA to establish that the claimant is capable of performing work in the national

economy. Knight v. Chater, 55 F.3d 309, 313 (7th Cir. 1995); see also 20 C.F.R.

§ 416.920. (A negative answer at any point, other than steps three and five,

terminates the inquiry and leads to a determination that the claimant is not

disabled.).

2 The Code of Federal Regulations contains separate, parallel sections pertaining to disability

benefits under the different titles of the Social Security Act, such as the one cited here that is

applicable to disability insurance benefits. Often, as is the case here, the parallel section pertaining

to the other type of benefits—in this case SSI—is verbatim and makes no substantive legal

distinction based on the benefit type. See 20 C.F.R. § 404.920(a).

After step three, but before step four, the ALJ must determine a claimant's

residual functional capacity ("RFC") by evaluating "all limitations that arise from

medically determinable impairments, even those that are not severe." Villano v.

Astrue, 556 F.3d 558, 563 (7th Cir. 2009). The RFC is an assessment of what a

claimant can do despite his limitations. Young v. Barnhart, 362 F.3d 995, 1000-01

(7th Cir. 2004). In making this assessment, the ALJ must consider all the relevant

evidence in the record. Id. at 1001. The ALJ uses the RFC at step four to determine

whether the claimant can perform his own past relevant work and if not, at step

five to determine whether the claimant can perform other work in the national

economy. See 20 C.F.R. § 416.920(a)(4)(iv)-(v).

The claimant bears the burden of proof through step four. Briscoe, 425 F.3d

at 352. If the first four steps are met, the burden shifts to the Commissioner at step

five. Id. The Commissioner must then establish that the claimant – in light of his

age, education, job experience, and residual functional capacity to work – is capable

of performing other work and that such work exists in the national economy. 42

U.S.C. § 423(d)(2); 20 C.F.R. § 416.920(f).

Judicial review of the Commissioner's denial of benefits is to determine

whether it was supported by substantial evidence or is the result of an error of law.

Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). This review is limited to

determining whether the ALJ's decision adequately discusses the issues and is

based on substantial evidence. Substantial evidence "means – and means only –

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

conclusion." Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019); Rice v. Barnhart, 384

F.3d 363, 369 (7th Cir. 2004). The standard demands more than a scintilla of

evidentiary support but does not demand a preponderance of the evidence. Wood v.

Thompson, 246 F.3d 1026, 1029 (7th Cir. 2001). Thus, the issue before the Court is

not whether Gregory is disabled, but, rather, whether the ALJ's findings were

supported by substantial evidence. Diaz v. Chater, 55 F.3d 300, 306 (7th Cir. 1995).

Under this administrative law substantial evidence standard, the Court

reviews the ALJ's decision to determine if there is a logical and accurate bridge

between the evidence and the conclusion. Roddy v. Astrue, 705 F.3d 631, 636 (7th

Cir. 2013) (citing Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008)). In this

substantial evidence determination, the Court must consider the entire

administrative record but not "reweigh evidence, resolve conflicts, decide questions

of credibility, or substitute its own judgment for that of the Commissioner." Clifford

v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000). Nevertheless, the Court must conduct a

critical review of the evidence before affirming the Commissioner's decision, and the

decision cannot stand if it lacks evidentiary support or an adequate discussion of

the issues. Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003); see

also Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002).

When an ALJ denies benefits, she must build an "accurate and logical bridge

from the evidence to [her] conclusion," Clifford, 227 F.3d at 872, articulating a

minimal, but legitimate, justification for the decision to accept or reject specific

evidence of a disability. Scheck v. Barnhart, 357 F.3d 697, 700 (7th Cir. 2004).

The ALJ need not address every piece of evidence in her decision, but she cannot

ignore a line of evidence that undermines the conclusions she made, and she must

trace the path of her reasoning and connect the evidence to her findings and

conclusions. Arnett v. Astrue, 676 F.3d 586, 592 (7th Cir. 2012); Clifford, 227 F.3d at

872.

III. BACKGROUND

A. Gregory's Relevant Medical History

On March 3, 2009, a consulting neurologist explained that Gregory, then 17

years old, had fallen off a porch in November 2008. (Dkt. 8-17 at 23, R. 595).

Gregory injured his knee and had a nerve block done for a presumed diagnosis of

complex regional pain syndrome, but the knee pain persisted. (Id.). He then

developed a headache and low grade fever, for which an exploratory spinal/lumbar

puncture was performed. (Id.). The spinal puncture was normal, but Gregory

complained of persistent pain at the site of the puncture; an MRI was taken of his

lumbar spine, which showed that he had a mild broad-based disc bulge and

displacement of the right L5 dorsal root ganglion. (Id.). The neurologist noted that

Gregory had not returned to school because of persistent pain, headaches, and knee

issues. (Id.). An examination had been normal. (Id.). The provider believed that

Gregory's headache pain was likely coming from his neck, recommended physical

therapy for cervical spasms, and advised against any further lumbar injections. (Id.

at 23-24, R. 595-96).

In June 2009, various records summarize an extensive workup with multiple

healthcare providers and specialties—including pediatrics, neurology, immunology,

rheumatology, and orthopedics—that had been undertaken because of Gregory's

history of vertigo and continued symptoms that included concentration-precluding

pain. (Id. at 27-43, R. 599-615). He was noted to have been homeschooled since

February 2009, after having been an active teenager and baseball player, but had

since gained 30 pounds because of inactivity. (Id.). His numerous diagnoses included

autonomic nervous system dysfunction without orthostatic hypotension,

hypersensitivity syndrome, obesity, and chronic dysfunctional pain-type syndrome.

(Id.).

Concerning Gregory's pain around the lumbar puncture location, one

specialist commented that it was "interesting that he has such hypersensitivity over

the skin of that area. This may indicate some neuropathic element or an element of

pain amplification syndrome3 . . . ." (Id. at 35, R. 607). After detailing numerous

comorbidities, that consultant concluded:

Finally, Gregory's biggest health threat at this point is obesity. He has

a BMI of around 36 which is quite abnormal and is likely contributing

to his back and knee pain. I think it is very unlikely that these

symptoms are going to get better as long as his weight remains where

it is at.

(Id. at 35-36, R. 607-08).

3 Amplified musculoskeletal pain syndrome (AMPS) is a condition in which patients develop an

abnormal pain sensitivity, where the nervous system registers and processes normal sensations from

movement and environmental experience as pain signals. Causes and Treatment for Pain

Amplification Syndrome, https://docs.chocchildrens.org/causes-and-treatment-for-pain-amplification-

syndrome/ (last visited March 10, 2021).

A consulting pediatric rheumatologist stated with regard to Gregory's

diagnosis of autonomic dysfunction, "I do think that this has resulted from either

his potential initial injury of his knee or other unknown causes, however, [the

condition has] persisted and [has] allowed . . . pain amplification type of features

[to] develop such as his chronic daily headaches and also his allodynia." (Id. at 30,

R. 602).

On August 6, 2009, Gregory's primary care physician, Dr. Thomas Devine,

wrote a letter stating that his "constant and continuous" symptoms—including

headaches, generalized weakness, and severe lower back pain—prevented "him

from doing even small amounts of activity for any great lengths of time. Even being

upright for more than a fraction of an hour exacerbates these symptoms." (Id. at 20,

R. 592). Dr. Devine assessed that Gregory was not "able to sit through an entire

school day let alone ambulate the halls from class to class successfully. I do think he

could go to school on a reduced schedule, however." (Id.).

On April 22, 2010, a pediatric neurosurgeon, David M. Frim, M.D., described

Gregory's ongoing complaints of lower back pain rated as a 9 out of 10, as well as

MRI findings that had revealed a small syrinx without a Chiari malformation. (Dkt.

8-7 at 2, R. 215). The specialist's examination was normal except for increased

sensation around L4-5 and marked tenderness around the lumbar spine. (Id. at 3,

R. 216). The provider explained the possibility of surgical treatment of "the syrinx

with decompression of the bone in spite of the absence of the Chiari. In cases like

this usually the syrinx will collapse but there is no guarantee that his symptoms

will improve. We felt that probably he needs [a] regular pain physician to follow[-

]up [with] his pain management." (Id.). "Regarding his lower back pain, we do not

feel that he needs any surgical intervention. We prefer doing surgery as a last

resource to treat symptoms." (Id.). Gregory was considered "stable with minimal

signs and some major pain issues." (Id.). At a six-month follow-up visit on

September 16, 2010, Dr. Frim expressed confusion about the etiology of Gregory's

continued lower back pain and noted that updated imaging showed that the syrinx

had not gotten larger. (Id. at 4, R. 217).

On April 28, 2011, Gregory's treating neurologist, Jerry W. Smartt, Jr., M.D.,

wrote a letter requesting appropriate accommodations from the college that Gregory

was enrolled in. (Dkt. 8-17 at 19, R. 591). Dr. Smartt explained that Gregory had a

chronic neurological condition complicated by "exacerbations of pain that are

incapacitating. He is unable to sit, stand, walk, or function effectively during these

exacerbations and thus has been forced to miss time from class and unable to

complete [schoolwork] at home." (Id.).

On August 22, 2011, MRIs were taken of Gregory's spine, with one showing

"[a]bnormal appearance of the bony thoracic spine reflecting Scheuermann's

kyphosis involving the mid and lower thoracic spine from T7 to T10," a "[s]mall to

moderate left paracentral/lateral disc herniation at T7-8 resulting in mild left-sided

ventral cord compression," a "[l]arge left-sided radial annular tear associated with a

small left-sided disc protrusion at T8-9 without cord compression," and "[e]pidural

lipomatosis of the thoracic spine." (Dkt. 8-16 at 34-35, R. 568-69). Another image

showed a "[s]mall cervical spinal cord syrinx at C6-7 without significant spinal cord

expansion. No evidence of tumor or Chiari-I malformation," "[m]ild disc

degeneration at C5-6, C6-7 and C7-Tl," "with small disc herniations at C6-7 and C7-

Tl," and "[n]o spinal cord compression identified." (Id. at 39, R. 573).

On November 5, 2012, a physician that evaluated Gregory in a pain clinic

described his ongoing pain and attempts at finding relief:

Pain with continued pain [sic] at site of [lumbar puncture] since then.

Pain does not radiate. Normally pain 6.5-7, today 9.5. Resting makes it

better. Percocet helps. Movement makes it worse. Flexeril didn't work,

T[ENS] unit didn't work, physical therapy didn't work, heat/cold pack,

[T]oradol did not help, prednisone didn't help. Lyri[c]a, gabapentin

didn't help. Pain is constant. Cymbalta does help.

(Dkt. 8-17 at 14, R. 586).

On September 11, 2014, an MRI was taken of Gregory's cervical and thoracic

spine and the findings included "[m]ultilevel thoracic disc displacements [at] T1-2,

T6-7 through T8-9, and T11-12 resulting in abutment and flattening of the cord [at]

T6-7, [and] T7-8. Superiorly migrating left paracentral extrusions T11-12 abuts and

flattens the left paracentral cord," "cord signal is abnormal and demonstrates syrinx

formation" at C6-7, "[p]rominent posterior epidural fat pad [visible at] T1 through

T11," and "[w]hen comparison [was] made with previous images dated 9/10/12, the

findings at T6-7 are new. Remainder of the examination is similar." (Dkt. 8-8 at 60-

61, R. 291-92).

Gregory continued regular treatment with Dr. Smartt. On May 14, 2015, Dr.

Smartt noted that Gregory's lower back pain—found to be related to diagnoses of

lumbar facet arthropathy, a cervical syrinx at C6-7, and thoracic right-sided disc

disease at T6-7—was "stable." (Dkt. 8-8 at 54, R. 285). He was advised to continue

Percocet, Cymbalta, Tizanidine, use of a TENS unit, and attempted weight loss.

(Id.). On February 9, 2016, Dr. Smartt also listed diagnoses of chronic pain

syndrome and hypersensitivity disorder, as well as reports of increased pain with

sitting after 30-45 minutes, standing 50-60 minutes, walking 20 minutes, and some

flares with increased activity, illness, or sneezing. (Dkt. 8-9 at 40, R. 332). Dr.

Smartt recommended continued pain medication, diet modification, and

exercise/walking "as tolerated." (Id.). On June 17, 2016, Gregory reported increased

pain over the last couple of weeks rated at 8 or 9 out of 10, with no known trauma,

and no radicular pain in his arms and legs. (Id. at 11, R. 303). Dr. Smartt also

recommended chiropractic treatment but advised Gregory to avoid manipulation of

his neck. (Id.). Dr. Smartt noted that use of a TENS unit hadn't provided Gregory

relief, physical therapy increased his pain, and he had a history of hypersensitivity

to lumbar steroid injections. (Id.).

Gregory also regularly visited a rheumatologist, Steven H. Neucks, M.D., for

treatment of lower back pain beginning on July 28, 2015. (Dkt. 8-8 at 46, R. 277).

On April 21, 2016, Gregory reported pain, rated 7 out of 10, that was exacerbated by

"activity in general" and relieved by "lying down" and "medications." (Id. at 40, R.

271). His height was measured at 6 feet and 1 inch tall, with a weight of 316 lbs.,

and his BMI was 41.69. (Id. at 41, R. 272). After the initial assessment, Dr. Neucks

described, in part, the potential etiology of Gregory's pain and his relevant history:

Evaluation has shown a number of other comorbid items including

significant degenerative disc disease of a [widespread] nature of

cervical and lumbar as well as a syrinx. Serial MRIs of syrinx have not

showed any substantial change. He was previously followed by Dr.

[Frim at] University of Chicago from neurosurgery who felt that the

syrinx was not the cause of his pain. He was seen by a pain physician

in Dr. [Frim's] office who did wonder if a ketamine infusion might be

helpful.

(Id. at 57, R. 288). Dr. Neucks's examinations findings were normal, except:

Thoracic and lumbar spines are well aligned and the area of somewhat

poor demarcation around L2 of a proximally rectangular shape does

seem to be the area of pain. He denies that it is radicular. Movement in

this area does not appear to be restricted. Light touch or feather light

touch did not seem to bother him, but local pressure sufficient for

noting trigger points did seem to bother him.

(Id. at 58, R. 289). Dr. Neucks's impressions included:

1. Atypical lumbar spine pain follow[ing] the spinal tap with some

suggestion of local cutaneous involvement by history and exam.

2. Failure by history of several attempts to control him with adjunctive

medications including Neurontin, Lyrica, and Savella. When

questioned about Lamictal, they thought he might have been on that.

He is on 60 mg of Cymbalta and trials of raising the dose have not been

successful. He has [had] two trials of topical medication and he is

allergic to adhesive[s] and Lidoderm patch[es].

3. Use of class Il medication he currently takes Percocet. There is no

history or evidence of aberrancy. He is managed by Dr. Smartt.

. . .

5. Significant degenerative disc disease with [widespread] relatively

mild mechanical problems of uncertain clinical symptoms.

6. Syrinx evaluated by pediatric neurosurgery and not felt to be

operative nor [to] participate in his current symptoms.

(Id.). Dr. Neucks recommended continuing Percocet, and potentially trying Lamictal

and a generic Lidoderm patch for pain. (Id.).

On December 8, 2015, another treating provider, Dr. David Patterson, listed

Gregory's diagnoses as including syringomyelia. (Id. at 51, R. 282).

On July 23, 2016, Gregory attended a consultative examination at the

request of the SSA. (Dkt. 8-11 at 35, R. 417). He reported constant pain around the

location of the spinal puncture conducted more than six years earlier that resulted

in an inability to walk more than 15 minutes, stand for more than 25 minutes, or sit

for more than 30 minutes. (Id.). He was 72 inches tall and weighed 323 lbs. (Id.).

The examination was normal except for "reactive tenderness to palpation of the

upper spinous processes," forward flexion of the lumbar spine limited to 30 degrees,

and lumbar extension was limited to zero degrees because of lower back pain. (Id. at

35-38, R. 417-20). The examiner's "medical source statement" was limited to listing

diagnoses of "morbid obesity" and "chronic pain syndrome of [the] lower back." (Id.

at 38, R. 420).

On August 15, 2016, Gregory reported to Dr. Smartt that he had "some

worsening" of his pain, he did not lift anything heavier than a plate of food at home,

he did not do any chores because of problems bending/twisting, he "could barely feed

[his family's] dogs" without pain, he had not driven since age 17, he had increased

pain with "sitting upright" for more than 30 to 45 minutes or standing for more

than 15 to 20 minutes, and he needed to lay down for 30 minutes to help relieve

pain after sitting or standing. (Id. at 60, R. 442). Dr. Smartt noted that Gregory had

dropped out of school because of increased pain with sitting and walking necessary

to attend class and that he also missed days because of his pain. (Id.). Dr. Smartt

recommended no lifting of over 10 lbs. (Id.).

On January 6, 2017, Gregory reported to Dr. Smartt that he had "stable" pain

rated, on average, as 8 out of 10 with the use of medications and exacerbated by

"activity," "car rides," and "sitting upright in chairs." (Dkt. 8-16 at 16, R. 550). On

March 2, 2017, Gregory reported that his pain and related sleep interruptions were

worse over the last month, he had trouble sitting for 20 to 30 minutes before

needing to move and change positions because of increased pain, and he had

problems sitting with an "erect posture," as well as bending or twisting. (Id. at 4, R.

538). Dr. Smartt found thoracic and lumbar spasms to be present on examination.

(Id. at 5, R. 539).

On April 18, 2017, Dr. Neucks recorded that Gregory weighed 332 lbs., with a

BMI of 43.80, and he reported constant back pain that was non-radicular, increased

with movement, and sometimes flared for a week at a time. (Dkt. 8-11 at 65, R. 447).

On May 26, 2017, an MRI of Gregory's cervical spine was taken—with

comparison to a 2012 study—which showed "significant improvement" with the size

of the cervical syrinx, but "extensive multilevel degenerative disc and facet changes

much more prominent than would be expected for [the] patient's age," and "slightly

worse than seen in [the] comparison study." (Dkt. 8-15 at 18-19, R. 526-27). He had

foraminal narrowing at multiple levels including at C4-5 with "[p]rominent left

uncovertebral hypertrophic spurring resulting in prominent left foraminal

narrowing and likely left C5 impingement." (Id.).

On July 17, 2017, Dr. Smartt's examination notes recorded that Gregory had

tenderness around his thoracic and lumbar spine. (Dkt. 8-15 at 2, R. 510). He was

observed to be sitting "cocked" to one side. (Id.). For Gregory's pain, Dr. Smartt

prescribed Xartemis extended release rather than Percocet, until its production was

stopped, and he replaced it with Oxycontin; he monitored appropriate usage by

doing regular urine screens and requesting Indiana's Prescription Drug Monitoring

Program (INSPECT) reports. (See, e.g., Dkt. 8-10 at 2, R. 342 (INSPECT report); Id.

at 9, R. 349 (urine screen panel); Dkt. 8-14 at 2, R. 490 (Gregory reported a slight

increase in pain upon switching to Oxycontin); Id. at 9, R. 497 (drug testing

results)).

On April 26, 2018, Dr. Smartt wrote a letter supporting Gregory's disability

claim:

Gregory . . . has been a patient under my care since June 24, 2010 for a

chronic neurological condition. Greg has chronic pain syndrome due to

chronic lumbar facet arthropathy, thoracic disc disease, syringomyelia

and cervical disc disease. Over the past 7.5 years, we have attempted

to treat and control Greg's condition with only modest success. Despite

physical therapy, neurosurgical evaluation, multiple medication trials,

Greg continues to have disabling pain. His pain greatly interferes with

traditional activities of daily living. He has difficulty standing/walking

greater than 15 min[utes]. He has difficulty sitting greater than 20

min[utes]. He has pain with bending, squatting, twisting, and lifting.

He attempted to go to college but had to withdraw due to his condition

causing him to miss classes and mobility issues in navigating the

campus exacerbating his pain. Greg's condition is currently being

treated with narcotic pain meds, muscle relaxers, and a neuropathic

pain agent. He is not a surgical candidate. Prognosis is poor for

improvement. Current limitations include: no lifting greater than 10

lbs[.], limit walking/standing to 15 min[utes] at a time before [he]

need[s] to sit or lay [sic] down to relieve pain, [the need to] alternate

positions after sitting for 20 min[utes]. He would not be able to sustain

a 20[-]hour [workweek]. After treating Greg for the past 7.5 years, I

feel that he is disabled.

(Dkt. 8-17 at 49, R. 621). Dr. Smartt also completed a physical residual functional

capacity questionnaire, and supported his medical assessment by reference to

diagnostic imaging of Gregory's spine. (Id. at 50, R. 622) Dr. Smartt noted he had

treated Gregory every two months. (Id.). Dr. Smartt further highlighted his

treatment notes explaining "clinical tenderness [and] tight muscles with spasms

along" Gregory's entire spine. (Id.). Dr. Smartt assessed that Gregory would

frequently have symptoms severe enough to interfere with attention and

concentration necessary to complete even simple tasks during a typical workday, he

could stand and walk for less than two hours in an eight-hour workday and sit for

at least six hours, he would need to have the ability to change positions at will, he

could only sit for 20 minutes or stand for 15 minutes at one time, he would need to

take unscheduled breaks every 30 to 45 minutes for 10 to 15 minutes at time, and

he would be likely to be absent more than four days per month. (Id. at 50-53, R. 622-

25).

B. Factual Background

Gregory was 24 years old when he applied for SSI. (Dkt. 8-5 at 2, R. 147). He

attended college and was enrolled in two classes but did not complete them or earn

any credits. (Dkt. 8-2 at 36-37, R. 35-36). He has never worked. (Dkt. 8-6 at 7, R. 163).

C. ALJ Decision

In determining whether Gregory qualified for benefits under the Act, the ALJ

employed the five-step sequential evaluation process set forth in 20 C.F.R.

§ 416.920(a) and concluded that Gregory was not disabled. (Dkt. 8-2 at 13-24, R. 12-

23). At Step One, the ALJ found that Gregory had not engaged in substantial

gainful activity since the application date4 of May 24, 2016. (Id. at 18, R. 17).

At Step Two, the ALJ found that Gregory suffered from "the following severe

impairments: cervical, thoracic and lumbar degenerative disc disease,

migraine/headaches and obesity." (Id.). The ALJ also found that asthma was a non-

severe impairment. (Id.).

At Step Three, the ALJ found that Gregory's impairments did not meet or

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

§ Pt. 404, Subpt. P, App. 1. (Id. (citing 20 C.F.R. §§ 416.920(d); 416.925; 416.926)).

After Step Three but before Step Four, the ALJ found that Gregory had the

RFC to "perform sedentary work," with the following additional limitations:

• He can engage in no more than occasional stooping, and climbing of

ramps and stairs;

• He cannot kneel, crouch, crawl, or climb ladders, ropes, or scaffolds;

• He should not have exposure to extreme heat, extreme cold, humidity,

wetness, vibrations, or hazards, such as dangerous heights or

machinery;

• He can sit for 30-45 minutes at a time for a total of up to 6 hours in the

8-hour workday, stand for 30-45 minutes at a time for a total of up to 2

hours in the 8-hour workday, and walk for 30-45 minutes at a time for

a total of up to 2 hours in the 8-hour workday.

4 SSI is not compensable before the application date. 20 C.F.R. § 416.335.

(Dkt. 8-2 at 19-20, R. 18-19).

At Step Four, the ALJ did not find any past relevant work to consider. (Id. at

23, R. 22).

At Step Five, relying on the vocational expert's testimony, the ALJ

determined that, considering Gregory's age, education, work experience, and RFC,

he was capable of adjusting to other work with jobs existing in significant numbers

in the national economy in representative occupations such as a new account clerk,

call operator, and information clerk. (Id. at 23-24, R. 22-23). The ALJ concluded that

Gregory was not disabled. (Id. at 24, R. 23).

IV. ANALYSIS

Gregory challenges the ALJ's decision regarding the RFC assessment on two

grounds. (Dkt. 12 at 15). First, Gregory contends that the ALJ improperly rejected

the opinion of Dr. Smartt. (Id.). Second, Gregory asserts that the ALJ's credibility

determination was patently wrong. (Id. at 21). The Court will consider these

arguments in turn below.

A. Whether the ALJ Improperly Rejected the Opinion of Dr. Smartt

First, Gregory argues that the ALJ "offered only perfunctory and

unsupported rationale for dismissing the disabling opinion" of his treating

neurologist, Dr. Smartt. (Id. at 15). He asserts that the ALJ provided no

explanation for giving partial weight to Dr. Smartt's opinion regarding Gregory's

functional limitations. (Id. at 16-17). Pointing to the ALJ's conclusion that Dr.

Smartt's duration assessment and medical opinion were inconsistent with Dr.

Smartt's treatment plan, the Plaintiff argues that the ALJ has failed to identify any

medical evidence that was inconsistent with either Dr. Smartt's clinical

observations or Gregory's objective imaging. (Id. at 17). Moreover, the Plaintiff

contends that the ALJ failed to consider the regulatory factors before discounting

Dr. Smartt's treating source opinion. (Dkt. 17-18).

In response, the Commissioner argues that the ALJ's decision to give Dr.

Smartt's opinion partial weight was proper because his medical opinion was

inconsistent with Gregory's conservative treatment, his normal clinical signs, and

his lack of radicular pain. (Id.). The Commissioner contends that the ALJ

sufficiently detailed the relevant medical evidence, including the pain medications

that were prescribed and the objective medical imaging, before addressing Dr.

Smartt's opinion. (Id. at 5-6). As to the ALJ's consideration of the relevant regulatory

factors, the Commissioner notes that "neither Dr. Smartt's specialty nor the

frequency of his treatment undermine the ALJ's reasonable determination that

substantial evidence in the record contradicted the more restrictive portions of his

opinion." (Id. at 7). Regarding the imposed limitations in the RFC, the Commissioner

argues that the ALJ's RFC assessment was consistent with Gregory's reports to Dr.

Smartt that he could sit for only 30 to 45 minutes at a time. (Dkt. 18 at 5).

In reply, Gregory asserts that the vocational expert's testimony demonstrated

that Gregory's ability to maintain exertional positions for a certain duration was

material to the disposition of the case, but the ALJ did not offer any explanation as

to why Dr. Smartt's relevant, disabling opinion was inconsistent with the record.

(Dkt. 19 at 1-2). Gregory further argues that the Commissioner points to the ALJ's

citation of somewhat improved neck MRIs as "good reason" for departing from Dr.

Smartt's opinion, but that neither the ALJ nor the Commissioner explain why the

lumbar and thoracic MRIs that seem to support listing level disability (by showing

cord and nerve root compromise) did not support Dr. Smartt's opinion. (Id.).

Under the "treating physician" rule, which applies to Gregory's claim, an ALJ

should give controlling weight to the treating physician's opinion as long as it is

supported by medical findings and consistent with substantial evidence in the

record. See 20 C.F.R. § 416.1527(c)(2); Gerstner v. Berryhill, 879 F.3d 257, 261 (7th

Cir. 2018) (noting that the treating physician rule applies only to claims filed before

March 27, 2017). An ALJ is authorized, however, to reject a treating physician's

opinion, so long as she offers “good reasons” for doing so. Scott v. Astrue, 647 F.3d

734, 739 (7th Cir. 2011); Campbell v. Astrue, 627 F.3d 299, 306 (7th Cir. 2010).

If an ALJ does not give a treating physician's opinion controlling weight, the

ALJ is required to consider the length, nature, and extent of the treatment

relationship; the frequency of examination; the physician's specialty; the types of

tests performed; and the consistency and supportability of the physician's opinion.

Scott, 647 F.3d at 740 (citing Moss v. Astrue, 555 F.3d 556, 561 (7th Cir. 2009)); 20

C.F.R. § 416.927(c). However, so long as the ALJ "minimally articulates" her

reasoning for discounting a treating source opinion, the Court must uphold the

determination. See Elder v. Astrue, 529 F.3d 408, 415-16 (7th Cir. 2008) (affirming

the denial of benefits where the ALJ discussed only two of the relevant regulatory

factors).

Here, the ALJ explained:

Finally, I give partial weight to the opinions of the claimant's pain

management physician, Dr. Smartt. His opinions are somewhat

consistent with his treatment of the claimant, which showed

conservative treatment, as well as predominantly within normal limits

physical examinations and lack of radicular pain. [S]ome of his

limitations were consistent with his treatment of the claimant and the

entirety of the medical evidence in the record like lifting less than ten

pounds. As such, I give partial weight to the opinions of Dr. Smartt.

(Dkt. 8-2 at 23, R. 22 (citations omitted)).

The SSA requires that the "RFC assessment must always consider and

address medical source opinions. If the RFC assessment conflicts with an opinion

from a medical source, the adjudicator must explain why the opinion was not

adopted." Social Security Ruling 96-8p (S.S.A. July 2, 1996), 1996 WL 374184, at *7.

The Seventh Circuit has explained that "[a]n ALJ may not selectively consider

medical reports, especially those of treating physicians, but must consider 'all

relevant evidence.'" Myles v. Astrue, 582 F.3d 672, 678 (7th Cir. 2009) (citing

Clifford, 227 F.3d at 871; Books v. Chater, 91 F.3d 972, 979 (7th Cir. 1996)). "It is

not enough for the ALJ to address mere portions of a doctor's report." Myles, 582

F.3d at 678 (citing Godbey v. Apfel, 238 F.3d 803, 808 (7th Cir. 2000)). In this case,

the ALJ did not confront the aspects of Dr. Smartt's opinion that are inconsistent

with the ALJ's RFC finding.

Dr. Smartt assessed several limitations that are inconsistent with the ALJ's

RFC finding, including that Gregory: (1) was limited to walking/standing for 15

minutes at a time before he needed to sit or lay down to relieve pain; (2) would need

to alternate positions after sitting for 20 minutes, (Dkt. 8-17 at 49, R. 621); (3) could

stand and walk for less than two hours in an eight-hour workday; (4) would need to

take unscheduled breaks every 30 to 45 minutes for 10 to 15 minutes at time; and

(5) would be likely to be absent more than four days per month. (Id. at 50-53, R.

622-25). The vocational expert's testimony established that at least four of those

limitations would be work preclusive, leading to an immediate finding that Gregory

is disabled. In the vocational expert's professional opinion, an individual must be

able to maintain any exertional position (i.e., standing, walking, or sitting) for at

least 30 minutes to meet productivity standards, the individual must remain on

task for 95 percent of the workday excluding scheduled breaks, and there is no

tolerance in the competitive economy for an individual that needs to lie down or

miss more than one day of work per month. (Dkt. 8-2 at 58-60, R. 57-59). At a

minimum, the ALJ's failure to grapple with the disabling aspects of Dr. Smartt's

opinion frustrates meaningful review.

The ALJ also did not demonstrate adherence to the regulatory framework to

weigh medical opinions. The Seventh Circuit has explained that an "ALJ should

explicitly consider the details of the treatment relationship and provide reasons for

the weight given to [treating physicians'] opinions." Yurt v. Colvin, 758 F.3d 850,

860 (7th Cir. 2014) (citing 20 C.F.R. § 404.1527(c)(2)). The ALJ noted that there was

a treating relationship between Gregory and Dr. Smartt. However, the ALJ did not

explicitly consider the long-standing duration of the relationship, nor did the ALJ

accurately note Dr. Smartt's specialty as a neurologist. The ALJ's failure to do so is

legal error.

These errors of articulation, however, are not necessarily reversible errors.

The Commissioner essentially argues that even if the ALJ had addressed Dr.

Smartt's proposed disabling limitations and weighed the regulatory factors, the

outcome would be the same. Harmless error can be used by a reviewing court to

excuse an ALJ's error(s) with consideration of medical opinions. See, e.g., McKinzey

v. Astrue, 641 F.3d 884, 892 (7th Cir. 2011). Accordingly, the Court now considers

whether the ALJ's errors were harmless in this case.

The regulatory framework instructs the ALJ to consider "consistency" with

"the record as whole" when weighing a medical opinion. 20 C.F.R § 416.927(c)(4).

The regulation also instructs the ALJ to consider the "supportability" of a medical

opinion, which refers to the relevant evidence presented by the source to support

the opinion, including "particularly medical signs and laboratory findings." 20

C.F.R. § 416.927(c)(3). However, the regulation specifies that the supportability

factor is more relevant to weighing opinions from "non[-]examining sources." Id.

Presumably, the relative distinction is appropriate because treating or examining

sources' opinions can be compared for consistency with their corresponding treating

notes or examination findings. See Schaaf v. Astrue, 602 F.3d 869, 875 (7th Cir.

2010) (a treating source statement can be discounted if not properly explained and

the treating notes do not provide any further clarification or support with objective

signs).

The Commissioner argues that the ALJ's assignment of partial weight was

consistent with Dr. Smartt noting that Gregory "reported pain with sitting after 30

to 45 minutes, which the ALJ accounted for by limiting Plaintiff to sitting for only

30 to 45 minutes at a time." (Dkt. 18 at 5 (citing Dkt. 8-11 at 60, R. 442)). However,

that same treatment note also shows that Gregory reported that he had increased

pain with "sitting upright" for more than 30 to 45 minutes, as well as standing for

more than 15 to 20 minutes, and he needed to lay down for 30 minutes to help

relieve pain after sitting or standing. (Dkt. 8-11 at 60, R. 442). The reported

limitations with standing and the need to lie down would both be work preclusive,

but neither were mentioned or addressed by the ALJ in her opinion. As such, the

ALJ provided no reason, let alone a good reason, for her decision to only credit part

of Dr. Smartt's treatment note as being "consistent" with her RFC assessment.

More generally, Dr. Smartt's opinion appears almost entirely consistent with

Gregory's reported pain and related limitations. Dr. Smartt, for instance, was

familiar with Gregory's inability to complete even two college courses because of his

issues sitting in class, with traveling to campus, and with physical mobility.

Gregory also reported missing school days and constantly complained of flares of

intense pain that were physically incapacitating. In some instances, an ALJ may

appropriately give reduced weight to a treating opinion that is based on the

claimant's subjective reports. See, e.g., Bates v. Colvin, 736 F.3d 1093, 1100 (7th Cir.

2013). That is not the case here. Dr. Smartt's opinion is only partially based on

Gregory's subjective reports, but also rests on objective medical imaging and almost

eight years of consistent treatment.

The Court concludes that the ALJ's errors are not harmless here. Dr.

Smartt's opinion is consistent with and supported by the record, and the ALJ

provided no explanation to the contrary. Additionally, the ALJ did not address Dr.

Smartt's four additional proffered functional limitations that would be work

preclusive and render Gregory disabled. The ALJ failed to provide a logical bridge

between the evidence and her conclusions. Accordingly, further consideration of Dr.

Smartt's opinion and Gregory's RFC is needed on remand.

B. Whether the ALJ's Subjective Symptom Evaluation was Patently

Wrong

Plaintiff next claims that the ALJ conducted an improper analysis of his

subjective symptom allegations. (Dkt. 12 at 19-21). Plaintiff argues that the ALJ did

not properly evaluate his symptoms as required by Social Security Ruling 16-3p.

(Id.). "In evaluating a claimant's credibility, the ALJ must comply with SSR 16-3p

and articulate the reasons for the credibility determination." Karen A. R. v. Saul,

No. 1:18-cv-2024-DLP-SEB, 2019 WL 3369283, at *5 (S.D. Ind. July 26, 2019). SSR

16-3p describes a two-step process for evaluating a claimant's subjective symptoms.5

First, the ALJ must determine whether the claimant has a medically determinable

5 SSR 16-3p became effective on March 28, 2016, (S.S.A. Oct. 25, 2017), 2017 WL 5180304, at *13,

replacing SSR 96-7p, and requires an ALJ to assess a claimant's subjective symptoms rather than

assessing his "credibility." By eliminating the term "credibility," the SSA makes clear that the

"subjective symptom evaluation is not an examination of an individual's character." See SSR 16-3p,

2016 WL 1119029 at *1. The Seventh Circuit has explained that the "change in wording is meant to

clarify that administrative law judges are not in the business of impeaching a claimant's character."

Cole v. Colvin, 831 F.3d 411, 412 (7th Cir. 2016).

impairment that could reasonably be expected to produce the individual's alleged

symptoms. SSR 16-3p, 2017 WL 5180304, at *3 (Oct. 25, 2017). Second, the ALJ

must evaluate the intensity and persistence of a claimant's symptoms, such as pain,

and determine the extent to which they limit his ability to perform work-related

activities. Id. at *3-4.

A court will overturn an ALJ's evaluation of a claimant's subjective symptom

allegations only if it is "patently wrong." Burmester, 920 F.3d at 510 (internal

quotation marks and citation omitted). To satisfy this standard, the ALJ must

justify her subjective symptom evaluation with "specific reasons supported by the

record," Pepper v. Colvin, 712 F.3d 351, 367 (7th Cir. 2013), and build an "accurate

and logical bridge between the evidence and conclusion." Villano, 556 F.3d at 562.

An ALJ's evaluation is "patently wrong" and subject to remand when the ALJ's

finding lacks any explanation or support. Murphy v. Colvin, 759 F.3d 811, 816 (7th

Cir. 2014); Elder v. Astrue, 529 F.3d 408, 413-14 (7th Cir. 2008).

When assessing a claimant's subjective symptom allegations, the ALJ must

consider "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, at *4. Although the Court will defer to an ALJ's subjective symptom finding

that is not patently wrong, the ALJ must still adequately explain her subjective

symptom evaluation "by discussing specific reasons supported by the record."

Pepper, 712 F.3d at 367. Without this discussion, the Court is unable to determine

whether the ALJ reached her decision in a rational manner, logically based on her

specific findings and the evidence in the record. Murphy, 759 F.3d at 816 (internal

quotations omitted); see also SSR 16-3p, at *9.

When assessing a claimant's subjective symptoms, ALJs are directed to

"consider the consistency of the individuals own statements. To do so, [they] will

compare statements an individual makes in connection with the individual's claim

for disability benefits with any existing statements the individual made under other

circumstances." SSR 16-3p (S.S.A. Oct. 25, 2017), 2017 WL 5180304, at *8. The

ruling also explains that "[p]ersistent 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." Id. at *9.

Here, both factors appear relevant and supportive. At one point, the ALJ

acknowledged that Gregory "was consistent in reporting pain." (Dkt. 8-2 at 21, R.

20). Gregory also consistently reported relevant limitations with exertional abilities

and performance of activities, as well as sought extensive treatment from multiple

providers with frequent medication adjustments without reporting significant or

sustained relief. Moreover, the relevant evidence spanned a considerable period that

began well in advance of his claim for benefits. All of this tends to weigh in favor of

crediting Gregory's allegations.

Nevertheless, the ALJ went on to conclude that Gregory's subjective

symptom allegations were inconsistent with the record and additional functional

limitations were not warranted because of Gregory's conservative treatment,

examinations within normal limits, and lack of radicular pain. Gregory takes issue

with two of the ALJ's stated reasons for discounting his subjective symptom

complaints and suggested functional limitations: his conservative treatment and his

lack of radicular pain. First, Gregory notes that his treating specialist, Dr. Smartt,

specifically stated that he is not a surgical candidate. (Dkt. 8-17 at 49, R. 621). With

surgery unavailable for his medical condition, Gregory's treatment could only

consist of conservative treatment, yet the ALJ does not address this point. Instead

the ALJ disregards Dr. Smartt's evaluation and concludes, without explanation,

that Gregory's treatment plan is inconsistent with his subjective symptom

complaints. The ALJ failed to provide a logical bridge between the evidence

indicating that only conservative treatment was available and her conclusion that

conservative treatment would be inconsistent with Gregory's alleged symptoms.

Gregory also takes issue with the ALJ's conclusion that his lack of radicular

pain constitutes a good reason for discounting his subjective symptoms. There is no

case or regulation, nor medical record or opinion in this case that the Court could

locate that requires a claimant to have radicular pain in order to support his

complaints of back pain. The ALJ provides no explanation for how Gregory's lack of

radicular pain renders his symptom complaints inconsistent with the record.

Without a medical opinion stating that Gregory's lack of radicular pain affects the

credibility of his symptom allegations, the ALJ impermissibly submitted her own

medical judgment. As such, the ALJ conducted an improper credibility analysis.

The ALJ's credibility analysis will not be overturned so long as the ALJ gives

specific reasons supported by the record. Curvin v. Colvin, 778 F.3d 645, 651 (7th

Cir. 2015). In this case, the ALJ's stated reasons for discrediting Gregory's

subjective symptom allegations are not supported by the record. Therefore, the case

is remanded on this issue as well, in order for the ALJ to conduct a proper

credibility analysis.

V. CONCLUSION

For the reasons detailed herein, this Court REVERSES the ALJ's decision

denying Plaintiff benefits and REMANDS this matter for further proceedings

pursuant to 42 U.S.C. § 405(g) (sentence four) as detailed above. Final judgment

will issue accordingly.

So ORDERED.

Date: 3/11/2021 a, va A ( i Ww

Doris L. Pryor

United States Magistrate Judge

Southern District of Indiana

Distribution:

All ECF-registered counsel of record via email.

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