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Walker v. Colvin

United States District Court, N.D. Indiana, LaFayette Division

February 13, 2017

TONY A. WALKER, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.



         Tony Walker appeals the denial of his application for disability insurance benefits and Supplemental Security Income. The ALJ assessed Walker as having several severe impairments but found that he was nonetheless capable of performing unskilled light work. But in finding Walker capable of light work, the ALJ entirely ignored an assessment of a state medical expert that Walker is limited to sedentary work. The ALJ also did not adequately address Walker's testimony about his subjective physical symptoms, including his pain. For these reasons, I must remand this case for further consideration by the ALJ.


         Walker's claim for benefits is based on several impairments, both physical and mental. The primary physical basis for Walker's claim is pain in his right ankle apparently stemming from a 2009 injury, as well as lower back pain rooted in a work-related car collision. (See, e.g., DE 9 at 121-22, 126-31.) This case is complicated by the fact that Walker's claim period includes a period when substance abuse disorders prevented him from earning a living and a period when he was able to earn a living. Walker was severely impaired by substance abuse disorders from the beginning of the claim period in June 2006 through March 2011. (Id. at 33.)

         Walker was substantially gainfully employed from March 2011 to May 2013. (Id. at 109-11, 113, 181-82, 495.) He turned 50 in November 2011. (Id. at 467.) The ALJ found that, during the entire claim period, Walker has had severe impairments apart from substance abuse: an affective/mood disorder including depression, an anxiety-related disorder, the late effects of a right ankle fracture, hepatitis C, and low-back pain. (Id. at 33.) Walker does not challenge these findings or the ALJ's additional assessment that Walker has had several non-severe impairments. (Id. at 33-35.)

         Walker first briefly used heroin around 1984, while in the Navy. (Id. at 135-36.) He began using again around 1996 and developed a serious addiction. (Id. at 136.) Beginning around 2006, Walker was homeless and earned money by collecting scrap material. (Id. at 138.) His claim alleges a start-date in June 2006. (Id. at 456.) Walker entered a residential treatment program for substance abuse around June 2009. (Id. at 48, 134.) Also around June 2009, Walker injured his ankle attempting to jump a fence while apparently trying to evade the police. He was unsuccessful, and the police brought him, under arrest, to the hospital to see to his right ankle and his left ribs. Walker was able to walk. (Id. at 562, 918.) Walker's ankle was x-rayed and doctors diagnosed a sprain and put him in an aircast. (Id. at 563.) Since then, he has complained of pain in his right ankle. (See, e.g., id. at 565, 590, 620, 783, 837, 871, 875-76, 896, 929-30, 952-53, 1042, 1044, 1102, 1240.)

         After getting control of his substance abuse issues around 2010, Walker worked and was able to support himself from March 2011 through May 2013. (Id. at 32, 134, 495.) But he claims that he was unable to sustain employment after his ankle pain and depression continued to cause him to miss up to four or five days of work per month. (Id. at 142, 144.) Walker claims that his combination of impairments prevents him from maintaining full-time employment in a competitive setting. (See, e.g., id. at 107-8.)

         The ALJ decision presently under review is the second opinion by an ALJ. The ALJ had issued a prior decision in May 2012 (Id. at 219), but the Appeals Council vacated and remanded that decision in June 2013. It directed the ALJ to correct an omission in the record and to fully consider Walker's history of substance abuse disorder. (Id. at 236-38.) On remand, the ALJ held hearings in February 2014 and July 2014. (Id. at 104, 176.)

         Walker testified at some length during both of those hearings. (Id. at 108-49, 183-95.) At the first, state medical experts Dr. Norris Dougherty and Dr. Joseph Cools testified, along with the vocational expert Leonard Fisher. (Id. at 29, 160-68, 149-59, 168-73.) Dr. Dougherty opined, in relevant part, that Walker is limited to sedentary work. (Id. at 162-63.) Dr. Cools opined as to Walker's work-related mental and psychological limitations, testifying that he could do regular work activity. (Id. at 158-60.) Dr. Cools assessed Walker as being able to do simple to semi-skilled work with some limitation in concentration, persistence, and pace. Walker would be able to interact appropriately with others without limitation and would not need any special consideration like pace allowances or low-stress work. (Id. at 158-59.) Vocational expert Fisher classified Walker's past jobs generally as skilled with medium to heavy exertion. (Id. at 169-70.) He went on to testify that Walker was limited to unskilled light work, which ruled out all of Walker's past work, but opined that Walker was able to do other available jobs. (Id. at 171-72.)

         Psychological medical expert Dr. Jeffrey Andert and vocational expert Thomas Gusloff testified at the second hearing on remand. (Id. at 29, 196-204, 204-10.) Dr. Andert testified that from June 2006 through February 2011 Walker could have worked but for the substance abuse issue, although he was limited to unskilled work. (Id. at 199-201.) According to Dr. Andert, Walker had the same capacity from March 2011 to the date of the hearing: performing unskilled work, making judgments on simple work-related matters, interacting appropriately with supervisors and coworkers, and responding to routine changes at work. Dr. Andert did not see support in the record for Walker's claim that he had two to three bad workdays per month during which he could not function. (Id. at 201-04.) The ALJ's first hypothetical to vocational expert Gusloff included unskilled work with the ability to occasionally lift and carry 20 pounds and frequently lift 10 pounds and to stand or walk for six hours in an eight-hour workday. (Id. at 205-06.) Vocational expert Gusloff testified that Walker could not do his past work, but that there were other jobs he could do. (Id. at 206.) Under a second, much more limited hypothetical, Gusloff seemed to indicate there were no jobs Walker could do. (Id. at 207-08.)

         In addressing Walker's application, the ALJ navigated through the familiar five-step process. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see also DE 9 at 29-52.) The ALJ divided his analysis into the period when Walker was impaired by substance abuse and the period when the problem was in remission (after March 2011). At step one, the ALJ determined that Walker engaged in substantial gainful activity from March 2011 through May 2013, but that he did not do so either before or after that time within the claim period. (DE 9 at 32-33.) At step two, the ALJ found that Walker had established several physical and mental “severe impairments” during the entire claim period, as well as the severe impairment of poly-substance abuse disorder from June 2006 through March 2011. (Id. at 33.) The ALJ also discussed Walker's several non-severe impairments. (Id. at 33-35.) At the third step, the ALJ determined that, from June 2006 through March 2011, Walker's impairments, including the substance abuse disorders, met the severity of impairments listed in the Social Security regulations. (Id. at 35-36; see also 20 C.F.R. § 404(P), App. 1.) The ALJ went on to find that, even without the substance abuse disorder, Walker would have had severe impairments from 2006 to March 2011, but they would not have met or medically equaled a listed impairment. (DE 9 at 37.) He also found that Walker did not have an impairment or combination of impairments that met or equaled a listed impairment from March 2011 through the date of the ALJ's decision. (Id. at 39-41.)

         The ALJ next considered Walker's residual functional capacity. He found that from June 2006 through March 2011, had Walker not been impaired by the substance abuse disorder, he could have done light work with limits on certain motions, including climbing, balancing, and stooping. (Id. at 41.) The ALJ determined that, during this period, Walker would have been able to do simple and semi-skilled work, make judgments in doing such work, interact appropriately with supervisors and co-workers, and respond to usual work situations and changes. (Id. at 41-45). From March 2011 through the date of the ALJ's decision, the ALJ found Walker capable of light work with the same physical and mental limitations as during the earlier period. (DE 45-48.) Based on his residual functional capacity, the ALJ found Walker unable to perform his past relevant work either from 2006 to 2011 or from 2011 to the decision date. (Id. at 48-49.) But at step five of the process the ALJ found that if Walker had not been impaired by substance abuse from June 2006 through March 2011, he would have been able to perform a significant number of jobs. (Id. at 50-51.) The ALJ also found that there were jobs Walker could have done from March 2011 through the date of the ALJ's decision. (Id. at 51-52.)

         Walker argues in his appeal that the ALJ failed to include limitations in social functioning and concentration, persistence, and pace in the scenarios he presented to the vocational experts. He next challenges the ALJ's credibility finding as cursory and inappropriately dismissive of Walker's subjective symptoms of pain and physical limitation. Finally, Walker points out that the ALJ failed entirely to consider ...

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