CONATSER v. KIJAKAZI

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

TERRI C., )

)

Plaintiff, )

)

v. ) No. 1:20-cv-02905-TAB-JPH

)

KILOLO KIJAKAZI, Acting Commissioner of )

Social Security, )

)

Defendant. )

ORDER ON PLAINTIFF'S

BRIEF IN SUPPORT OF APPEAL

I. Introduction

Plaintiff Terri C. appeals the Social Security Administration's denial of her application

for disability insurance benefits. Plaintiff argues that the Administrative Law Judge cherry-

picked evidence and failed to provide an accurate and logical bridge to support critical findings

and conclusions. Specifically, Plaintiff takes issue with the ALJ's analysis at step three finding

Plaintiff's conditions did not meet Listing 1.04 or medically equal a listing and raises various

other challenges to the ALJ's decision. The Court agrees that the challenged decision does not

adequately set forth the ALJ's consideration of whether Plaintiff's impairments meet or medically

equal Listing 1.04. In addition, Plaintiff raises other valid concerns in relation to the ALJ's

treatment of Plaintiff's subjective symptoms, and the decision lacks a proper analysis to support

the ALJ's conclusion that Plaintiff is not disabled in light of the evidence of record. Therefore,

for all these reasons, Plaintiff's request for remand [Filing No. 16] is granted.

II. Background

On March 6, 2018, Plaintiff filed a Title II application for a period of disability and

disability insurance benefits, alleging her disability began on September 1, 2017. The SSA

denied Plaintiff's claims initially and upon reconsideration. Following a hearing, the ALJ

determined that Plaintiff was not disabled.

The ALJ followed the SSA's five-step sequential process to determine if Plaintiff was

disabled. Before reaching step one, the ALJ found that Plaintiff met the insured status

requirements of the Social Security Act through December 31, 2022. At step one, the ALJ found

Plaintiff had not engaged in substantial gainful activity since September 1, 2017, the alleged

onset date. At step two, the ALJ determined that Plaintiff had the following severe impairments:

ulcerative colitis, asthma, mild multilevel degenerative disc disease, osteoarthritis, migraines,

cervicalgia, moderate to severe left foraminal narrowing, and cervical degenerative disc disease

with radiculopathy and stenosis. [Filing No. 14-2, at ECF p. 18.]

At step three, the ALJ concluded that Plaintiff did not have an impairment or series of

impairments that medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart

P, Appendix 1. Before reaching step four, the ALJ determined Plaintiff's residual functional

capacity, or her remaining ability to work despite her limitations. The ALJ concluded that

Plaintiff had the RFC to perform medium work as defined in 20 C.F.R. § 404.1567(b), with the

following additional limitations:

[Plaintiff] can lift 50 pounds occasionally and 25 pounds frequently, stand or walk

for six hours and sit for six hours per eight-hour workday, with frequent climbing

of ramps or stairs, occasional climbing of ladders, ropes, or scaffolds, frequent

balancing on level surfaces, frequent stooping, kneeling, crouching, and crawling,

with no concentrated exposure to fumes, odors, dusts, and gases, and no

concentrated exposure to extreme cold, vibration, or industrial noise.

[Filing No. 14-2, at ECF p. 22.]

At step four, the ALJ concluded that Plaintiff could perform past relevant work as a

Shipping-and-Receiving Supervisor. The ALJ found that this work did not require performance

of work-related activities precluded by Plaintiff's RFC as generally performed. Accordingly, the

ALJ concluded that Plaintiff was not disabled.

III. Discussion

Plaintiff raises numerous arguments but contends that there are "two critical defects that

infect the entire" ALJ decision: (1) the ALJ cherry-picked evidence; and (2) the ALJ failed to

provide an accurate and logical bridge from the evidence to the ALJ's conclusions. [Filing No.

16, at ECF p. 13.] Thus, Plaintiff argues that remand is necessary. The Court reviews the ALJ's

decision to determine whether the ALJ's factual findings are supported by substantial evidence.

See, e.g., Biestek v. Berryhill, __ U.S. __, __, 139 S. Ct. 1148, 1153 (2019) ("On judicial review,

an ALJ's factual findings shall be conclusive if supported by substantial evidence." (Internal

quotation marks omitted)). "The court is not to reweigh evidence, resolve conflicts, decide

questions of credibility, or substitute its judgment for that of the Commissioner. Where

substantial evidence supports the ALJ's disability determination, we must affirm the decision

even if reasonable minds could differ concerning whether the claimant is disabled." Burmester

v. Berryhill, 920 F.3d 507, 510 (7th Cir. 2019) (internal citations, quotation marks, and brackets

omitted).

A. Step Three Listing Analysis

Plaintiff argues that the ALJ erred at step three by failing to analyze relevant, potentially

dispositive evidence before concluding that Plaintiff's conditions did not meet or medically equal

Listing 1.04 regarding spine disorders. [Filing No. 16, at ECF p.19-24.] Plaintiff describes the

ALJ's listing analysis as perfunctory, boilerplate, and inadequate.

To determine whether the ALJ's step three listing analysis was sufficient, the Court need

not look much beyond the language in the ALJ's decision. It is immediately obvious that the

ALJ's analysis is minimal, at best. In evaluating whether Plaintiff's impairments met Listing

1.04, the ALJ simply recited the requirements of the listing and stated:

Listing 1.04, Disorders of the Spine, is not met because the record does not

demonstrate compromise of a nerve root (including the cauda equina) or the

spinal cord with additional findings of: (a) evidence of nerve root compression

characterized by neuro-anatomic distribution of pain, limitation of motion of the

spine, motor loss (atrophy with associated muscle weakness) accompanied by

sensory or reflex loss and, positive straight-leg raising, or (b) spinal arachnoiditis,

or (c) lumbar spinal stenosis resulting in pseudoclaudication, established by

findings on appropriate medically acceptable imaging, manifested by chronic

nonradicular pain and weakness, and resulting in the inability to ambulate

effectively, as defined in 1.00B2b.

[Filing No. 14-2, at ECF p. 21 (internal record citations omitted).]

When considering whether a claimant's medical impairment meets or equals a listing, the

ALJ must discuss the listing by name and offer more than a perfunctory analysis. Jeske v. Saul,

955 F.3d 583, 588 (7th Cir. 2020). See also Robert S. v. Kijakazi, No. 1:20-cv-2235-MG-RLY,

2021 WL 5979361, at *6 (S.D. Ind. Dec. 16, 2021) ("While the ALJ is not held to a high bar of

articulation at Step Three, some level of analysis is required. And although the Court must give

deference to the ALJ's factual determinations underlying her listing assessment, the ALJ must

consider all the evidence, particularly evidence contrary to the determination. To demonstrate

that the ALJ's listing conclusion was not supported by substantial evidence, the claimant must

identify record evidence that was misstated or ignored, and that could support a finding that

claimant met or equaled the criteria.").

Plaintiff cites to a vast amount of evidence in the record that she argues shows that she

had all the abnormal signs, symptoms, and laboratory findings to meet the requirements of

Listing 1.04(A), including:

▪ Multiple disorders of the spine (i.e., cervicalgia, cervical radiculopathy, cervical stenosis,

cervical disc degeneration, and chronic osteoarthritis of the neck) resulting in

compromise of a nerve root, established by diagnostic testing, which showed moderate

left uncovertebral joint hypertrophy and moderate narrowing of the left neural foramen at

C4-5 and left posterior and foraminal disc protrusion, mildly indenting and clockwise

rotating the cord, mild narrowing of the central canal, moderate left uncovertebral joint

hypertrophy, and moderate to severe narrowing of the left neural foramen.

▪ Neuroanatomical distribution of pain, indicated in the record by: (1) exams showing

tenderness, pain, and/or spasms from mid-2014 to late-2019; (2) Plaintiff's diagnosis of

cervical radiculopathy, also documented in exams; and (3) an exam that showed a

positive Spurling's test, which is used to assess cervical root compression.

▪ Exams showed reduced range of motion in Plaintiff's cervical spine/neck, as recently as

February 2019.

▪ Evidence of motor loss accompanied by sensory or reflex loss, including exams

indicating decreased muscle strength and numbness and tingling from the neck to the left

arm and hand, and Plaintiff's statements regarding pain in the neck with tingling, burning,

numbness, or neuropathy in the left shoulder, arm, and hand.

[Filing No. 16, at ECF p. 21-22.]

In response, the Commissioner claims that Plaintiff's arguments amount to "nothing more

than a call to reweigh the evidence in a manner more in her favor[.]" [Filing No. 17, at ECF p.

15.] This is inaccurate. The Commissioner's rebuttal argument ignores Plaintiff's main

argument, which is not that the ALJ improperly considered the record evidence, but that the ALJ

failed to consider significant evidence entirely—or at least failed to explain why this evidence

did not support the requirements of the listing or otherwise build a logical bridge between the

evidence and the ALJ's conclusion.

The Commissioner also contends that Plaintiff's arguments fail to demonstrate any

extreme limitation in her ability to walk or any inability to ambulate effectively, which the

Commissioner claims is one of the requirements of Listing 1.04. See, e.g., Ernie G. v. Kijakazi,

No: 1:20-cv-3288-MJD-RLY, 2022 WL 168348, at *3 (S.D. Ind. Jan 18, 2022) ("Claimant

wholly fails to acknowledge the relevant definition of 'inability to ambulate effectively. . . . The

only evidence pointed to by Claimant demonstrates that he had a limp and decreased strength

and range of motion; that evidence is clearly insufficient to demonstrate that Claimant had an

'inability to ambulate effectively' as that term was used in the Listing."). However, the

requirement to ambulate is part of Listing 1.04(C). As this Court has previously noted, "[t]he use

of ''or' between subsections (A), (B), and (C) means that fulfilling all of the elements of one of

these subsections meets Listing 1.04; it is not necessary to prove all elements of all of the

subsections." Shirley S. v. Kijakazi, No. 1:20-cv-1270-TAB-JPH, 2021 WL 2980398, at *3 (S.D.

Ind. July 15, 2021). Thus, although the ALJ's decision generally refers to all three sections of

Listing 1.04, Plaintiff only needed to present evidence that she met one of the three subsections,

and her brief is dedicated to arguing that she met Listing 1.04(A), which does not require an

inability to ambulate effectively.

Plaintiff also argues that the ALJ failed to properly consider medical equivalence. Even

if Plaintiff's conditions did not meet Listing 1.04, Plaintiff contends that the record medical

evidence shows medical equivalence to the listing. [Filing No. 16, at ECF p. 22-23.] For

instance, Plaintiff took prescription narcotics and nerve pain medications, has received many

steroid injections in her neck and back, has undergone physical therapy, chiropractic care, and

used a TENS unit. None of these steps resolved her pain. In addition, Plaintiff suffered from

several low back conditions established by objective medical imagining, which showed (1)

spondylosis and moderately reduced disc height at L3-L4, (2) mild degenerative changes, and (3)

mild multilevel disc disease. In addition, lower back exams showed at times (1) tenderness/pain,

(2) reduced range of motion, and (3) Oswestry scores indicating mostly "severe" to "crippling"

disability. Plaintiff has primary generalized arthritis, and cited to exams showing pain, arthritis,

and inflammation in the knees and generalized joint pain, as well as osteoarthritis in both

shoulders established by x-ray imaging. Thus, Plaintiff argues that the ALJ's decision fails to

provide due consideration of the functional limitations caused by these conditions and

symptoms.

In response, the Commissioner contends that the ALJ was not required to consider

whether Plaintiff had a combination of impairments that medically equaled a listing because it is

the claimant's burden to prove medical equivalence, and the record contained no medical opinion

evidence that could show equivalence. [Filing No. 17, at ECF p. 17.] Plaintiff persuasively

notes that it is a claimant's burden to produce evidence in support of her claim—which Plaintiff

did by showing medical diagnoses, objective findings, clinical abnormalities, longitudinal

treatment history, and the combination of her impairments and her subjective symptoms—but

she need not prove equivalence. See, e.g., Scott v. Astrue, 647 F.3d 734, 741 (7th Cir. 2011) ("It

is true that Scott bears the burden of producing evidence of her impairments, but she did produce

evidence in the form of her own testimony as well as medical evidence that tremors make it

difficult for her to use her hands." (Internal citation omitted)); Hartley v. Berryhill, No. 1:17-cv-

1043-TWP-TAB, 2018 WL 2173682, at *5 (S.D. Ind. May 10, 2018) ("The burden is on the

claimant at step three. However, the claimant's burden is merely to produce evidence in support

of the claim, not to prove equivalence."). Moreover, while the ALJ found the opinions of the

state agency consultants persuasive, the state agency consultants never considered Listing 1.04.

[Filing No. 14-3, at ECF p. 19, 31.] Thus, the ALJ's step three determination is wholly

unsupported.1

Ultimately, the Court takes no position on whether the evidence establishes that Plaintiff

satisfies Listing 1.04, or particularly Listing 1.04(A). As the Commissioner recognizes, this

Court cannot re-weigh the evidence or substitute its judgment for that of the ALJ. Gedatus v.

Saul, 994 F.3d 893, 900 (7th Cir. 2021) ("We will not reweigh the evidence, resolve debatable

evidentiary conflicts, determine credibility, or substitute our judgment for the ALJ's

determination so long as substantial evidence supports it."). However, while the Court is fully

aware that ALJs are not required to name and discuss every listing in their written decisions,

"[i]n considering whether a claimant's condition meets or equals a listed impairment, an ALJ

1 The Commissioner also claims that Plaintiff's argument fails because much of the evidence

cited by Plaintiff either pre-dates the relevant period or is before her alleged disability date.

[Filing No. 17, at ECF p. 17.] However, the ALJ must consider this evidence, and failure to do

so is error. See, e.g., Alexis H. v. Berryhill, No. 2:17-cv-204-DLP-JMS, 2018 WL 3654799, at

*7 (S.D. Ind. Aug. 2, 2018) ("The ALJ does not need to address every piece of evidence in his

decision, but he cannot ignore an entire line of evidence that undermines the conclusions he

made. Moreover, the ALJ must consider all of the evidence in the administrative record,

regardless of its source. The Seventh Circuit has indicated that this includes evidence that

predates the claimant's alleged onset date." (Internal citations, emphasis, quotation marks, and

brackets omitted)).

must discuss the listing by name and offer more than a perfunctory analysis of the listing."

Barnett v. Barnhart, 381, F.3d 664, 668 (7th Cir. 2004). Cf. Wilder v. Kijakazi, No. 21-1606, __

F.4th __, __, 2022 WL 34780, at *6 (7th Cir. Jan. 4, 2022) ("Barnett does not require ALJs to

name and discuss every Listing in their written decisions. Such a requirement would be

particularly unreasonable where, as here, the claimant does not identify a Listing at the hearing,

and her attorney even conceded that she does not meet or equal a Listing."). The ALJ's decision

in this case does not adequately analyze Listing 1.04. The ALJ recited the requirements of the

Listing but did not analyze those requirements in the context of Plaintiff's impairments or

otherwise build a logical bridge from the evidence to the conclusion that Plaintiff's spine

impairments do not meet or medically equal Listing 1.04. Thus, remand is proper.

In addition, Plaintiff notes that although the state agency medical consultants found

Plaintiff's spine disorder to be severe, they did not consider the condition under any listing, nor

did they consider her shoulder issues under Listing 1.02, which the ALJ found applicable.

Plaintiff also argues in a footnote that the state agency medical opinions were also "critically

outdated" in light of evidence post-dating the consultants' review showing: (1) decreased range

of motion with pain in the neck and numbness and tingling in the left arm and hand; (2)

cervicalgia with radiculopathy, decreased range of motion when turning the head to the left,

increased pain, muscle spasms, and neuropathy from the left shoulder to the fingers; (3) arthritis

in the knees and hips, limited range of motion and pain in the neck, and muscle spasms; (4)

active headache, cervical spine pain, and upper back pain and neuropathy; and (5) cervical spine

pain with radiculopathy, back, leg, and joint pain, and numbness and tingling in the left arm and

hand with decreased hand strength and grip. Although the Court takes no position on these

additional issues, the ALJ may need to address them on remand.

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B. Subjective Symptom Evaluation

Plaintiff argues that the errors in the ALJ's decision are best reflected in the ALJ's

"unsubstantiated symptom analysis." [Filing No. 16, at ECF p. 13.] The regulations describe a

two-step process for evaluating a plaintiff's subjective symptoms. First, the ALJ "must consider

whether there is an underlying medically determinable physical or mental impairment(s) that

could reasonably be expected to produce the individual's symptoms, such as pain"; and second,

the ALJ must "evaluate the intensity and persistence of those symptoms to determine the extent

to which the symptoms limit an individual's ability to perform work-related activities[.]" SSR

16-3p, 2017 WL 5180304, at *3 (Oct. 25, 2017).

The ALJ concluded that Plaintiff's medically determinable impairments could reasonably

be expected to cause the alleged symptoms, but that Plaintiff's statements concerning the

intensity, persistence, and limiting effects of those symptoms were not entirely consistent with

the medical evidence and other evidence in the record. [Filing No. 14-2, at ECF p. 26.] In

relation to Plaintiff's daily activities, the ALJ concluded that the evidence demonstrated her

limitations were less severe than she alleged. Plaintiff contends that the ALJ relied heavily on

Plaintiff's activities of daily living and ignored the qualified way Plaintiff completed most of

these activities. As a result, Plaintiff asserts that the ALJ concluded that Plaintiff's activities

suggest a higher level of functioning than actually supported by the record and Plaintiff's

activities. Plaintiff argues that her activities, which were performed infrequently, with help and

with resulting pain, are not a sufficient basis to reject her complaints of pain. [Filing No. 16, at

ECF p. 14.]

The ALJ cited to various objective evidence corroborating Plaintiff's complaints of pain,

including a March 14, 2014, cervical MRI showing foraminal disc protrusion, indentation and

rotation of the spinal cord, mild narrowing of the central canal, moderate joint hypertrophy, and

moderate to severe narrowing of the left neural foramen; a December 2014 lumbar MRI showing

mild degenerative changes with mild diffuse disc bulge, focal protrusion, facet and ligamentous

hypertrophy, and foraminal stenosis at multiple levels; a July 2018 bilateral shoulder x-ray

showing mild osteoarthritis of the joints; a July 2018 lumbar x-ray showing mild multilevel

degenerative disc disease; and a December 2018 exam showing cervical pain radiating to the left

hand with diminished strength on the left, cervical pain radiating to the right shoulder, and

numbness and tingling in the left hand. [Filing No. 14-2, at ECF p. 25-26.] As Plaintiff

articulates, the ALJ failed to build an accurate bridge from this evidence to the ALJ's conclusion

that Plaintiff's subjective complaints of pain were not consistent with the record evidence.

The Commissioner argues that the ALJ properly considered the regulatory factors bearing

on subjective symptom assessment, including activities of daily living as well as the location,

duration, frequency, and intensity of Plaintiff's symptoms; aggravating factors; side effects of

medication; and treatment other than medication. [Filing No. 17, at ECF p. 12-13.] Contrary to

the Commissioner's assertion, the ALJ specifically equated Plaintiff's daily activities with her —

ability to work. For instance, the ALJ stated that the opinion of consultative examiner Dr.

Xavier Laurente, M.D., was "not persuasive" in part because Plaintiff's "level of activities of

daily living reflect greater functionality." [Filing No. 14-2, at ECF p. 29.] Dr. Laurente opined

that Plaintiff is able to stand/walk for at least two hours in an 8-hour workday and can lift/carry

over 10 pounds occasionally and less than 10 pounds frequently. Yet the ALJ concluded, without

further explanation beyond a reference to Plaintiff's levels of daily activities, that Dr. Laurente's

opinion was not supported by his examination findings or consistent with the record as a whole

and was therefore not persuasive.

As Plaintiff argues, it appears from the ALJ's decision that the ALJ relied heavily on

Plaintiff's daily activities to find Plaintiff less limited than alleged, reject her complaints of pain,

and reject the medical opinions, while ignoring the qualified way Plaintiff completed those

activities.2

C. Plaintiff's RFC

Plaintiff also argues that the ALJ's determination of her RFC failed to properly account

for all of Plaintiff's limitations and the ALJ's assessment of the medical opinions was improper.

Plaintiff claims that the RFC assessed by the ALJ fails because it does not properly account for

Plaintiff's need to be off task or absent from work; Plaintiff's fibromyalgia diagnosis and

symptoms, or its impact; the "well-supported reaching, handling, and fingering restrictions

necessary to accommodate Plaintiff's left shoulder, arm, and hand pain and neuropathy"; the

difficulty Plaintiff has with stooping, kneeling, and bending due to knee and back pain; or

Plaintiff's chronic neck pain and migraines, which she argues are exacerbated by prolonged

standing, pulling, pushing, bending, lifting, stair climbing and daily activities. [Filing No. 18, at

ECF p. 11.] Thus, Plaintiff argues that all these errors render the ALJ's ultimate finding—that

Plaintiff was not disabled—unsupported.

Because the Court concludes that remand is proper on other grounds, it need not spend

much time addressing remaining issues. However, the ALJ should take care to ensure on remand

that the RFC is supported by substantial evidence and that proper consideration is given to all of

Plaintiff's impairments in assessing her RFC. For instance, while the ALJ assessed that Plaintiff

could do medium work involving lifting 50 pounds occasionally and 25 pounds frequently, as

2 While Plaintiff raises many other arguments in relation to the ALJ's subjective symptom

assessment, the Court need not discuss them further since it has already determined remand is

proper.

Plaintiff points out, the ALJ's decision does not identify any medical evidence to substantiate the

claim that Plaintiff had the ability to lift at these levels. The ALJ found Plaintiff's daily activities

to be consistent with the ability to work at this capacity, but provided no explanation for how

those activities ("able to manage her personal care and hygiene, assist her husband with dressing,

visiting her mother in the nursing home, perform some household chores and some shopping,

drive, work in her flower beds, spend time with others on the phone or on the computer, and

prepare simple meals") are consistent with or at all related to an ability to lift 25 to 50 pounds.

[Filing No. 14-2, at ECF p. 26.] In addition, the Commissioner did not address Plaintiff's

arguments that the state agency medical opinions were critically outdated or incomplete. These

arguments warrant the ALJ's consideration on remand.

IV. Conclusion

For the reasons noted above, Plaintiff's request for remand is granted. [Filing No. 16.]

Date: 1/31/2022

le (SA

Tim A. Baker

United States Magistrate Judge

Southern District of Indiana

Distribution:

All ECF-registered counsel of record via email

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