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Brown v. Colvin

United States District Court, S.D. Indiana, Indianapolis Division

June 3, 2015

CAROLYN COLVIN Acting Commissioner of Social Security, Defendant.


MARK J. DINSMORE, Magistrate Judge.

Jacquelyn Brown, ("Plaintiff") requests judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner") denying her applications for Social Security Disability Insurance Benefits ("DIB") under Title II and Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("the Act"). See 42 U.S.C. §§ 416(i), 423(d), & 1382c(a)(3). For the reasons set forth below, the Magistrate Judge recommends that the decision of the Commissioner be REVERSED and REMANDED.

Procedural History and Background

Plaintiff filed her applications for DIB and SSI on November 1, 2011, alleging an onset of disability on July 23, 2011. [R. at 19.] She was 47 years old at the time of the alleged onset, and she had past work experience as a hand painter and machine operator. [R. at 28.] She alleged disability due to back problems, shoulder problems, left knee pain, and depression. [R. at 22.][1]

Plaintiff's applications were denied initially on January 30, 2012 and on reconsideration on June 27, 2012. [R. at 19.] Plaintiff requested a hearing, which occurred via videoconference before Administrative Law Judge ("ALJ") Kathleen Thomas on February 25, 2013. [ Id. ] Plaintiff appeared and testified before the ALJ, as did medical expert Tom Wagner, Ph.D. [ Id. ] Also present were Plaintiff's attorney, M. Michele Cecil, and a vocational expert, Leslie Lloyd, Rh.D. [ Id. ] The ALJ determined that Plaintiff had not been under a disability at any time from the alleged onset date through the date of the ALJ's April 29, 2013 decision. [R. at 29-30.] The Appeals Council denied Plaintiff's request for review on September 5, 2014, [R. at 1-7], rendering the ALJ's decision final. Plaintiff filed her complaint in this Court on November 3, 2014. [Dkt. 1.]

Applicable Standard

To be eligible for SSI or DIB, a claimant must have a disability under 42 U.S.C. § 423.[2]Disability is defined as "the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). In order to be found disabled, a claimant must demonstrate that his physical or mental limitations prevent him from doing not only his previous work, but any other kind of gainful employment which exists in the national economy, considering his age, education, and work experience. 42 U.S.C. § 423(d)(2)(A).

In determining whether a claimant is disabled, the Commissioner employs a five-step sequential analysis. At step one, if the claimant is engaged in substantial gainful activity, he is not disabled despite his medical condition and other factors. 20 C.F.R. § 404.1520(b). At step two, if the claimant does not have a "severe" impairment (i.e., one that significantly limits his ability to perform basic work activities), he is not disabled. 20 C.F.R. § 404.1520(c). At step three, the Commissioner determines whether the claimant's impairment or combination of impairments meets or medically equals any impairment that appears in the Listing of Impairments, 20 C.F.R. pt. 404, subpt. P, App. 1, and whether the impairment meets the twelve-month duration requirement; if so, the claimant is disabled. 20 C.F.R. § 404.1520(d). At step four, if the claimant is able to perform his past relevant work, he is not disabled. 20 C.F.R. § 404.1520(f). At step five, if the claimant can perform any other work in the national economy, he is not disabled. 20 C.F.R. § 404.1520(g).

Upon judicial review, the ALJ's findings of fact are conclusive and must be upheld by this Court "so long as substantial evidence supports them and no error of law occurred." Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). "Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. This court may not reweigh the evidence or substitute its judgment for that of the ALJ. Overman v. Astrue, 546 F.3d 456, 462 (7th Cir. 2008). The ALJ "need not evaluate in writing every piece of testimony and evidence submitted." Carlson v. Shalala, 999 F.2d 180, 181 (7th Cir. 1993). However, the "ALJ's decision must be based upon consideration of all the relevant evidence." Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994). To be affirmed, the ALJ must articulate her analysis of the evidence in her decision; while she "is not required to address every piece of evidence or testimony, " she must "provide some glimpse into her reasoning... [and] build an accurate and logical bridge from the evidence to her conclusion." Dixon, 270 F.3d at 1176.

The ALJ's Decision

The ALJ first determined that Plaintiff met the insured status requirements of the Act through December 31, 2015. [R. at 21.] She then proceeded through the five-step sequential evaluation. At step one, she found that Plaintiff had not engaged in substantial gainful activity ("SGA") since July 23, 2011, the alleged onset date. [ Id. ] At step two, she found that Plaintiff suffered from the following severe impairments: "history of lumbar surgery, with residual pain and limitation, obesity and depression." [R. at 22.]

At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled a listed impairment. [ Id. ] The ALJ did not specifically consider any listings at this stage of her analysis, but Plaintiff does not challenge this aspect of the ALJ's decision, [ see Dkt. 18], and any argument on this point is accordingly waived. See, e.g., Ripberger v. Corizon, Inc., 773 F.3d 871, 879 (7th Cir. 2014) (undeveloped arguments are waived).

The ALJ next analyzed Plaintiff's residual functional capacity ("RFC"). She concluded that Plaintiff could:

perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except [s]he can no more than frequently climb ladders, ropes or scaffolds and frequently stoop and crawl. Because of her mental impairment, she is limited to repetitive, one-to-three step jobs for two-hour intervals. Changes in the workplace must be introduced gradually.

[R. at 22.] At step four, the ALJ concluded that this RFC did not allow Plaintiff to perform her past relevant work. [R. at 28.] The ALJ thus proceeded to step five and received testimony from the vocational expert indicating that someone of Plaintiff's age, education, work experience, and RFC would be able to perform jobs such as doorkeeper/greeter, sedentary assembler, and surveillance system monitor. [R. at 29.] Because these jobs existed in significant numbers in the national economy, the ALJ concluded that Plaintiff was not disabled. [R. at 29-30.]


Plaintiff asks the Court to reverse and remand the ALJ's decision for three reasons. Plaintiff first contends that the ALJ's physical RFC assessment was not supported by the medical evidence. [Dkt. 18 at 14.] Plaintiff then contends that the ALJ erred by improperly discounting Plaintiff's complaints about severe pain in her back and extremities. [ Id. at 21.] Plaintiff finally argues that remand is warranted for the consideration of new material evidence. [ Id. at 23.]

A. Physical RFC Assessment

Plaintiff contends that the ALJ's physical RFC assessment was erroneous because the ALJ 1) improperly discounted the opinion of treating physician Dr. Ira Means [Dkt. 18 at 14]; 2) improperly relied on the opinion of consultative examiner Dr. Olaguoke Akinwande [ id. at 18]; and 3) improperly evaluated Plaintiff's manipulative limitations. [ Id. at 20.]

1. Treating Source Dr. Ira Means

An ALJ must giving a treating physician's opinion controlling weight if it is both "(1) supported by medical findings; and (2) consistent with substantial evidence in the record." Elder v. Astrue, 529 F.3d 408, 415 (7th Cir. 2008) (citing 20 C.F.R. § 404.1527(c)(2)). If the ALJ finds that the opinion is not entitled to controlling weight, the ALJ must still assess the proper weight to give to the opinion. See id. This involves consideration of several factors, including the "length, nature, and extent of the physician and claimant's treatment relationship, whether the physician supported his or her opinions with sufficient explanations, and whether the physician specializes in the medical conditions at issue." Id. (citations omitted). If the ALJ "discounts the physician's opinion after considering these factors, " a reviewing court "must allow that decision to stand so long as the ALJ minimally articulated his reasons" for doing so. Id. (internal quotations marks and alteration omitted). This is a "very deferential standard, " id., but even so, a court must assure itself that the ALJ "offer[ed] good reasons' for discounting [the] treating physician's opinion." Campbell v. Astrue, 627 F.3d 299, 306 (7th Cir. 2010) (citation omitted).

In this case, Plaintiff received care from Dr. Ira Means at several appointments in 2012. [ See R. at 433-465.] That doctor opined that Plaintiff could "stand/walk a combined total of less than two hours per day; sit about 4 hours per day; and occasionally lift up to 10 pounds." [R. at 25; R. at 474-75.] Dr. Means also wrote that Plaintiff would have to change positions every 10 to 30 minutes; would often have to lie down during the day; and would frequently miss days of work. [R. at 25; R. at 474-76.] The ALJ acknowledged that Dr. Means was a "treating" source, [R. at 23], but rather than giving these opinions controlling weight, the ALJ stated that the opinions were "not afforded any weight whatsoever." [R. at 26.] She said the opinions were "unsupported by substantial evidence, including [Dr. Means'] own office and treatment notes, " and she asserted that the "claimant made good recovery [from] lumbar surgery;" was seen by Dr. Means only on a "routine basis for medication refills;" and had not pointed to any "evidence or notation of residuals which equate to the limitations assessed." [R. at 26.] As explained further below, this explanation was correct in some respects, but this explanation ultimately does not constitute a "good reason" for discounting the opinion of Dr. Means.

The ALJ first considered Plaintiff's left knee impairment. [R. at 25.] She noted that "[t]here is no objective medical evidence of a condition affecting her left knee, " and that "[i]f she has mentioned any knee-related problems to Dr. Means, no particular treatment is prescribed and she has not been referred for a knee x-ray." [ Id. ] The effects of Plaintiff's knee impairment were thus not "supported by medical findings, " Elder v. 529 F.3d at 415, such that the ALJ was justified in concluding that-to the extent Dr. Means' opinion relied on this alleged impairment-Dr. Means' opinion was not entitled to controlling weight.

Next, the ALJ discussed Plaintiff's left shoulder impairment. She noted that Plaintiff presented to Dr. Means in September 2012 with complaints of left shoulder pain and difficulty gripping objects. [R. at 23.] A subsequent MRI revealed a left rotator cuff tear. [ Id. ] Further, Plaintiff in March 2013 was referred for EMG studies of both upper extremities, which studies "revealed evidence of bilateral median neuropathy, worse on the left than right." [ Id. (citation omitted).] Based on these studies, Plaintiff's complaints about her left arm were "supported by medical findings, " Elder, 529 F.3d at 415, but the ALJ nonetheless discounted them. She noted that at a consultative examination with Dr. Olaguoke Akinwande, Plaintiff had normal strength and a normal grip in both upper extremities, and that Plaintiff voiced no complaints about a left shoulder impairment. [R. at 23 (citing R. at 414).] These findings could indicate that ...

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