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Booe v. Berryhill

United States District Court, S.D. Indiana, Terre Haute Division

March 17, 2017

RICHARD BOOE, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          Denise K. LaRue United States Magistrate Judge

         Entry on Judicial Review

         Richard Booe seeks judicial review under 42 U.S.C. § 405(g) of the Social Security Administration's denial of his application for disability insurance benefits. The parties have consented to the Magistrate Judge's jurisdiction. For the following reasons, the Commissioner's decision will be reversed and remanded.


         Booe alleges that he has been unable to work since January 2009. In May 2014, an Administrative Law Judge (ALJ) held a hearing by video conference at which Booe, represented by an attorney, testified. A vocational expert (VE) also testified at the hearing. Booe claims that he suffers from severe impairments of low back pain that radiates down through his buttocks and into his leg, depression, and sleep apnea. [R. 39.] He also suffers from hearing loss. His sleep apnea is treated with a CPAP machine.

         At the time of the hearing, Booe was 59 years old. He lived by himself. He had been receiving food stamps but he was not getting them at the time. [R. 35.] He was living off the proceeds from the sale of property (valued at $175, 000) he had inherited in 2005 and from cashing out his 401(k). [R. 35, 41-2.] He received a check for $13, 000 annually from the sale of the property.

         Booe worked for 35 years at an aerosol manufacturing company. [R. 35-36.] His job was on the line and required him to lift and dump bottles, to stand and walk a lot, and regularly lift skids that weighed 100 pounds. [R. 36-37.] Booe testified that he was fired from his job for missing too many days of work during the winter, but he also said that he missed two to three days each month because of illness or because of his impairments. [R. 37.]

         Booe stated that he has suffered from lower back pain for several years. He said that he could stand for 20 minutes before he would have to sit down, sit 15 to 20 minutes before he would have to get up, and walk a block before having to stop because of back pain and shortness of breath. [R. 39-40.] He thought he could lift and carry 10 to 20 pounds. He takes naps, which help with his pain. He also takes painkillers, including Tramadol, a narcotic used to treat moderate to severe pain as well as medication for depression. His medications cause him drowsiness. On a scale of 1 to 10, Booe rated his pain 6 with medication and 8 without. [R. 40-41.] In a typical day, he does some housework and mows the lawn, using a riding mower. [R. 43-44.] He also tends to his garden. [R. 44.] He said that his family doctor told him not to do heavy lifting. [R. 46.]

         According to Booe, since the end of 2013, he has been seeing Dr. Elaine Chappelle, M.D., and Tasha Lewis Stevens, a licensed clinical social worker and therapist. [R. 38.] He said he received ultrasound treatments before late 2013, but he could not remember when. Although he had trouble hearing, he did not wear hearing aids because he was never told to get them.

         The VE testified that Booe's past work was as a line operator, which was heavy as he performed it, but is generally performed at the medium exertional level. [Id.] She also testified that a hypothetical individual with impairments as described by the ALJ (no fine-hearing ability or complex verbal communication; limited to simple, routine, repetitive tasks; no written communication above a grade school level; no lengthy or complex discussions required; no more than simple decision making; no more than occasional and minor changes in work setting; work expectations remain unchanged; no direct public service work but can tolerate brief and superficial interaction with the public, coworkers, and supervisors), would be able to perform Booe's past work as generally performed at the medium exertional level. [R. 46-49.] The VE understood that medium level work meant lifting no more than 50 pounds occasionally and 25 pounds frequently, with no limitation on sitting, standing or walking. [R. 50.]

         The ALJ issued a decision, finding that Booe met the insured requirements of the Social Security Act through 2014 and had not engaged in substantial gainful activity since January 31, 2009, his alleged onset date. [R. 12.] The ALJ determined that Booe suffers from limited hearing, a severe impairment, and that he also has degenerative disc disease, supported by x-ray evidence, depression, and sleep apnea, though none of these other impairments were found “severe.” [R. 12, 20.] The ALJ also found that Booe's depressive disorder “does not cause any severe limitations, beyond those caused by his hearing difficulties[.]” [R. 14.] The ALJ acknowledged that Ms. Lewis-Stevens had diagnosed Booe with major depressive disorder, recurrent, severe without psychosis. [R. 13-14 (citing Ex. 11F 2-4); R. 294.] According to the ALJ, none of Booe's impairments meets or medically equals the severity of a listed impairment. [R. 14.] The ALJ determined that Booe has the residual functional capacity to perform a full range of work at all exertional levels with numerous nonexertional limitations and that given his residual functional capacity and the VE's testimony, he was capable of performing his past relevant work as a line operator [R. 15, 22]. The ALJ concluded that Booe was not disabled under the Social Security Act and denied his application for disability insurance benefits. [R. 23.]


         In reviewing the ALJ's decision, the Court determines whether it is supported by substantial evidence and whether the ALJ applied the correct legal standards. Stepp v. Colvin, 795 F.3d 711, 718 (7th Cir. 2015); Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013). The Court does not reweigh the evidence, resolve conflicts in the record, make credibility determinations, or substitute its own judgment for that of the ALJ. See Stepp, 795 F.3d at 718; Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004). An ALJ need not mention every piece of evidence, Arnett v. Astrue, 676 F.3d 586, 592 (7th Cir. 2012), but the ALJ must build an accurate and logical bridge from the evidence to his conclusion, Varga v. Colvin, 794 F.3d 809, 813 (7th Cir. 2015), and the ALJ's decision must be internally consistent. See, e.g., Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000); Rohan v. Chater, 98 F.3d 966, 971 (7th Cir. 1998); Reed v. Colvin, Cause No. 3:15-cv-177, 2016 WL 3537194, at *4 (N.D. Ind. June 28, 2016).

         Several errors in the ALJ's decision require remand in this case. First, the ALJ initially found that Booe's depression causes no more than minimal limitation in his ability to perform basic work activities, that is, was not severe [R. 12; see 20 C.F.R. § 404.1520(c) (explaining that a severe impairment “significantly limits your physical or mental ability to do basic work activities”)], but later concluded that Booe's depressive disorder “does not cause any severe limitations, beyond those caused by his hearing difficulties.” [R. 14.] At best the ALJ's reasoning is unclear; at worst, it is internally inconsistent. Either way, a remand is necessary for adequate articulation of the ALJ's reasoning. If Booe's depression or depressive disorder was not severe, then by definition, it ...

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