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Al Akeel v. Berryhill

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

August 25, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         The defendant Commissioner of Social Security denied plaintiff Abdulazeez Al Akeel's application for disability benefits under the Social Security Act, and Mr. Al Akeel brought this suit for judicial review of that denial. The parties consented to this magistrate judge conducting all proceedings in this case and ordering entry of a final judgment, Notice, Consent, and Reference of a Civil Action to a Magistrate Judge [dkt. 12], and the district judge referred the action accordingly, Order of Reference [dkt. 15]. The parties have briefed their positions, and the court has fully considered their arguments and the record. For the reasons explained below, the Commissioner's decision denying benefits is REVERSED and REMANDED.


         Judicial review of the Commissioner's factual findings is deferential: courts must affirm if her findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Skarbek v. Barnhart, 390 F.3d 500, 503 (7th Cir. 2004); Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003). Substantial evidence is more than a scintilla, but less than a preponderance of the evidence. Wood v. Thompson, 246 F.3d 1026, 1029 (7th Cir. 2001). If the evidence is sufficient for a reasonable person to conclude that it adequately supports the Commissioner's decision, then it is substantial evidence. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Carradine v. Barnhart, 360 F.3d 751, 758 (7th Cir. 2004). This limited scope of judicial review derives from the principle that Congress has designated the Commissioner, not the courts, to make disability determinations:

In reviewing the decision of the [administrative law judge], we cannot engage in our own analysis of whether [the claimant] is severely impaired as defined by the SSA regulations. Nor may we reweigh evidence, resolve conflicts in the record, decide questions of credibility, or, in general, substitute our own judgment for that of the Commissioner. Our task is limited to determining whether the ALJ's factual findings are supported by substantial evidence.

Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004). Carradine, 360 F.3d at 758. While review of the Commissioner's factual findings is deferential, review of her legal conclusions is de novo. Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010).

         The Social Security Act defines disability 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); 20 C.F.R. § 404.1505(a). 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. § 416.905(a). A person will be determined to be disabled only if his impairments "are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work." 42 U.S.C. §§ 423(d)(2)(A) and 1382c(a)(3)(B). 20 C.F.R. §§ 404.1505, 404.1566, 416.905, and 416.966. The combined effect of all of an applicant's impairments must be considered throughout the disability determination process. 42 U.S.C. §§ 423(d)(2)(B) and 1382c(a)(3)(G). 20 C.F.R. §§ 404.1523 and 416.923.

         The Social Security Administration has implemented these statutory standards in part by prescribing a "five-step sequential evaluation process" for determining disability. If disability status can be determined at any step in the sequence, an application will not be reviewed further. At the first step, if the applicant is currently engaged in substantial gainful activity, then he is not disabled. At the second step, if the applicant's impairments are not severe, then he is not disabled. A severe impairment is one that "significantly limits [a claimant's] physical or mental ability to do basic work activities." Third, if the applicant's impairments, either singly or in combination, meet or medically equal the criteria of any of the conditions included in the Listing of Impairments, 20 C.F.R. Pt. 404, Subpt. P, Appendix 1, Part A, then the applicant is deemed disabled. The Listing of Impairments are medical conditions defined by criteria that the Social Security Administration has pre-determined are disabling. 20 C.F.R. § 404.1525. If the applicant's impairments do not satisfy the criteria of a listing, then his residual functional capacity ("RFC") will be determined for the purposes of the next two steps. RFC is an applicant's ability to do work on a regular and continuing basis despite his impairment-related physical and mental limitations and is categorized as sedentary, light, medium, or heavy, together with any additional non-exertional restrictions. At the fourth step, if the applicant has the RFC to perform his past relevant work, then he is not disabled. Fifth, considering the applicant's age, work experience, and education (which are not considered at step four), and his RFC, the Commissioner determines if he can perform any other work that exists in significant numbers in the national economy. 42 U.S.C. § 416.920(a)

         The burden rests on the applicant to satisfy steps one through four. The burden then shifts to the Commissioner at step five to establish that there are jobs that the applicant can perform in the national economy. Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004). If an applicant has only exertional limitations that allow him to perform the full range of work at his assigned RFC level, then the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2 (the "grids"), may be used at step five to arrive at a disability determination. The grids are tables that correlate an applicant's age, work experience, education, and RFC with predetermined findings of disabled or not disabled. If an applicant has non-exertional limitations or exertional limitations that limit the full range of employment opportunities at his assigned work level, then the grids may not be used to determine disability at that level. Instead, a vocational expert must testify regarding the numbers of jobs existing in the economy for a person with the applicant's particular vocational and medical characteristics. Lee v. Sullivan, 988 F.2d 789, 793 (7th Cir. 1993). The grids result, however, may be used as an advisory guideline in such cases.

         An application for benefits, together with any evidence submitted by the applicant and obtained by the agency, undergoes initial review by a state agency disability examiner and a physician or other medical specialist. If the application is denied, the applicant may request reconsideration review, which is conducted by different disability and medical experts. If denied again, the applicant may request a hearing before an administrative law judge ("ALJ").[1] An applicant dissatisfied with the decision of the ALJ may request the SSAs Appeals Council to review the decision. If the Appeals Council either affirms or declines to review the decision, then the applicant may file an action in district court for judicial review. 42 U.S.C. § 405(g). If the Appeals Council declines to review a decision, then the decision of the ALJ becomes the final decision of the Commissioner for judicial review.


         Mr. Al Akeel applied for benefits under the supplemental security income program in January 2013 (R. 157), alleging that he is disabled because of right-leg amputation below the knee, arthritis in hands, and head pain (R. 174). In subsequent reports to the state agency, he also reported back and neck pain. (R. 187.) At the hearing, he testified that he is unable to work because of his lack of English proficiency, amputated leg, back, broken left arm, right shoulder, and broken left leg. (R. 37.) He testified that his back, right leg, and right shoulder give him the most pain. (R. 42.) He alleged lower back pain (R. 48, 51-52), severe headaches (R. 50), an ill-fitting leg prosthetic that causes pain and makes walking difficult (R. 48), winter/cold related pain from a broken hand or foot (R. 51), shoulder pain (R. 52), and the need to use one or two canes to ambulate, depending on the presence of right shoulder and back pain (R. 52-53). Mr. Al Akeel testified that he can walk for 15 minutes (R. 44), stand for thirty minutes with the help of a cane (id.), and sit for thirty minutes (R. 45). He alleges that his disability began on January 1, 2003 (R. 157, 174).

         Mr. Al Akeel's claim was denied on initial and reconsideration reviews by the state agency. (R. 68-90, 94-96.) He requested and received a hearing before an ALJ in October 2014, during which he and a vocational expert testified. (R. 29, 97.) Mr. Al Akeel was not represented by counsel when he submitted his application and initial evidence or through the state agency's initial and reconsideration reviews. (R. 68, 77.) He did not obtain counsel until about eleven months before the hearing. (R. 68, 77, 108, 109.) The ALJ issued his decision in December 2014.

         The ALJ's Findings and Subsequent Review

         At step one of the sequential evaluation process, the ALJ found that Mr. Al Akeel has not engaged in substantial gainful activity since his application date in January 2013.

         At step two, the ALJ found that Mr. Al Akeel has the severe impairments of right leg amputation below the knee, degenerative disc disease of the lumbar spine, and migraines. He found that the non-severe impairments of degenerative joint disease of the right shoulder and obstructive sleep apnea are also present. He further found that Mr. Al Akeel's histories of the following conditions do not constitute current impairments: polycythemia, gastritis, forearm fractures, high blood pressure, diabetes, acute renal failure and various sinus conditions.

         At step three, the ALJ found that Mr. Al Akeel does not have an impairment or combination of impairments, severe and non-severe, that meet or medically equal any of the conditions in the listing of impairments. He considered Mr. Al Akeel's right leg amputation under listing 1.05B (amputation, due to any cause, of one or both lower extremities); his lumbar spine impairment under listing 1.04 (disorders of the spine); and his migraines generally under listing categories 11 (neurological disorders) and 12 (mental disorders).

         For the purposes of steps four and five, the ALJ determined Mr. Al Akeel's residual functional capacity ("RFC"). He found that Mr. Al Akeel has the capacity to perform sedentary level work with the following restrictions: use of a hand held assistive device to ambulate and avoidance of concentrated exposure to extreme cold, slippery or uneven surfaces, hazardous machinery, and unprotected heights.

         Because Mr. Al Akeel has no past relevant work, the ALJ passed over step four.

         At step five, the ALJ considered Mr. Al Akeel's age (thirty-three, a "younger individual"), education (at least high school and able to communicate in English), [2]and RFC to find that a significant number of jobs that he can perform exist in the national economy and, therefore, he is not disabled. In making this determination, the ALJ relied on the testimony of the vocational expert at the hearing, who identified the jobs of assembler-table worker (25, 000 jobs nationally), surveillance system monitor (13, 200 jobs nationally), and document preparer (64, 000 jobs nationally).

         Mr. Al Akeel requested review by the Appeals Council in January 2015 (R. 7) and submitted a letter identifying errors in the ALJ's decision (R. 223). He argued that he should have been found disabled at step three because he satisfied the criteria of listing 1.05, amputation. He contended that the ALJ committed several errors and identified three: (1) much of the evidence regarding the condition and limitations on his amputation, ill-fitting prosthetic, need for assistive devices, lower back condition, and right shoulder condition was submitted after the state agency reviews and was not otherwise reviewed by a medical expert for an opinion on whether all of his conditions in combination medically equal listing 1.05; (2) the ALJ failed to discuss the issue of medical equivalence; and (3) the ALJ failed to consider the limitations on Mr. Al Akeel's ability to communicate in English.

         The Appeals Council denied Mr. Al Akeel's request for review, which rendered the ALJ's decision the final decision of the Commissioner on his claim ...

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