United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
L. Miller, Jr. Judge.
Gass seeks judicial review of a final decision by the
Commissioner of Social Security denying his applications for
disability insurance benefits under the Social Security Act,
42 U.S.C. § 423. The court has jurisdiction over this
action pursuant to 42 U.S.C. § 405(g). For the reasons
that follow, the court vacates the Commissioner's
decision and remands this case for further proceedings
consistent with this opinion.
Gass's application for Disability Insurance Benefits was
denied initially, on reconsideration, and following an
administrative hearing at which he and a vocational expert
testified. Based on the record before her, the ALJ found that
Mr. Gass had severe impairments, degenerative disc disease,
obesity, and diabetes, but concluded that none of Mr.
Gass's impairments met or medically equaled any of the
impairments listed in 20 C.F.R. Pt. 404, Subpt. P, App'x
decided that Mr. Gass had the residual functional capacity to
perform light work, as defined in 20 C.F.R. §§
404.1567(b), with limitations;and that he couldn't perform
his past relevant work, but could do other jobs available in
significant numbers. The ALJ concluded that Mr. Gass
wasn't disabled within the meaning of the Social Security
Act and wasn't entitled to benefits.
the Appeals Council denied Mr. Gass's request for review,
the ALJ's decision became the final decision of the
Commissioner. Sims v. Apfel, 530 U.S. 103, 107
(2000); Jones v. Astrue, 623 F.3d 1155, 1160 (7th
Cir. 2010). This appeal followed.
Standard of Review
issue before the court isn't whether Mr. Gass is
disabled, but whether substantial evidence supports the
ALJ's decision that he wasn't disabled.
Scott v. Astrue, 647 F.3d 734, 739 (7th
Cir. 2011); Nelms v. Astrue, 553 F.3d 1093, 1097
(7th Cir. 2009). Substantial evidence means “such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971); Jones v.
Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010). In
reviewing the ALJ's decision, the court can't reweigh
the evidence, make independent findings of fact, decide
credibility, or substitute its own judgment for that of the
Commissioner, Simila v. Astrue, 573 F.3d 503, 513
(7th Cir. 2009); Powers v. Apfel, 207 F.3d 431,
434-435 (7th Cir. 2000), but instead must conduct “a
critical review of the evidence, considering both the
evidence that supports, as well as the evidence that detracts
from, the Commissioner's decision.” Briscoe v.
Barnhart, 425 F.3d 345, 351 (7th Cir. 2005). While the
ALJ isn't required “to address every piece of
evidence or testimony presented, he must provide a
‘logical bridge' between the evidence and the
conclusions so that [the court] can assess the validity of
the agency's ultimate findings and afford the claimant
meaningful judicial review.” Jones v. Astrue,
623 F.3d 1155, 1160 (7th Cir. 2010). ALJs must
“sufficiently articulate their assessment of the
evidence to assure [the court] that they considered the
important evidence and to enable [the court] to trace the
path of their reasoning.” Scott v. Barnhart,
297 F.3d 589, 595 (7th Cir. 2002) (internal quotations
Gass argues that the ALJ made several errors requiring
remand: (1) the ALJ improperly determined that Mr. Gass
didn't meet Listing 11.14 for peripheral neuropathy; (2)
the ALJ didn't properly consider Mr. Gass's mental
capacity (3) the ALJ didn't proper consider the combined
effects of Mr. Gass's impairments, including the effect
of his obesity; (4) the ALJ didn't provide a proper
hypothetical to the vocational expert; (5) the ALJ improperly
accepted unreliable information from the vocational expert;
and (6) the ALJ's credibility determination was flawed.
Mr. Gass asks the court to either reverse the
Commissioner's decision and award benefits or remand the
case for further proceedings.
Gass first argues that the ALJ erred in finding that his
impairments didn't meet or equal Listing 11.14. A
claimant meets Listing 11.14 if he or she has
“disorganization of motor function in two
extremities” that results “in an extreme
limitation . . . in the ability to stand up from a seated
position, balance while standing or walking, or use the upper
extremities.” 20 C.F.R. Pt. 404, Subpt. P, App. 1.
Gass argues that the use of both a brace and cane, combined
with his difficulties standing, equals Listing 11.14, which,
in its relevant part, requires that the claimant be
“unable to maintain an upright position while standing
or walking without the assistance of another person or an
assistive device, such as a walker, two crutches, or two
canes.” 20 C.F.R. Pt. 404, Subpt. P, App. 1. The
Commissioner responds that the ALJ fully explained why Mr.
Gass's condition didn't meet or equal this listing,
her opinion is supported by the opinions of state agency
medical consultants Joshua Eskonen and Jonathon Sands, and
Mr. Gass offered no authority for his contention that the use
of both a cane and a foot brace should equal Listings 11.14.
the Social Security regulations, a claimant is automatically
considered disabled if his or her impairment meets or equals
one of the specific listed impairments in the appendix to the
regulations. 20 C.F.R. § 404.1520(a)(4)(iii). Mr. Gass
“has the burden of showing that his impairments meet a
listing, and he must show that his impairments satisfy all of
the various criteria specified in the listing.”
Ribaudo v. Barnhart, 458 F.3d 580, 583 (7th Cir.
2006). A listing determination should be upheld if the ALJ
mentions the specific listing under consideration and the
analysis isn't perfunctory. Id.
determined that Mr. Gass's “diabetic neuropathy
does not meet the criteria of listing 11.14 for peripheral
neuropathy because the claimant does not have sufficient
sustained disturbance of gait and station (locomotion) or
sufficient disturbance of gross and dexterous movements (use
of fingers, hands, and arms) despite treatment as defined in
listing 11.04B and as defined in 11.00C.” The ALJ also
noted that he was “able to ambulate effectively without
using assistive devices in both upper extremities; he
testified that he uses one cane primarily for balance while
walking[ and he was] able to use at least one upper extremity
effectively for gross and fine movements.” Mr. Gass
doesn't claim he requires a walker, two crutches, or two
ALJ's listing determination wasn't improper. She
mentioned the applicable listing, discussed relevant
evidence, and her analysis wasn't perfunctory. See
Ribaudo v. Barnhart, 458 F.3d 580, 583 (7th Cir. 2006).
Further, her determination was supported by the opinions of
two state agency medical consultants who opined that Mr. Gass
didn't meet a listing. See Scheck v. Barnhart,
357 F.3d 697, 700 (7th Cir. 2004) (recognizing that an ALJ
may rely on the opinions of state agency physicians to
support a listing determination).
The ALJ's Consideration of Mr. Gass's Mental
Gass contends that the ALJ improperly discounted the opinion
of psychological examiner Paula Neuman, Psy.D., who found
that his global assessment of functioning (GAF) score was
and diagnosed him with Asperger's disorder, attention
deficit hyperactivity disorder, and major depressive
disorder. The Commissioner responds that the ALJ properly
gave Dr. Neuman's opinion little weight because it was
inconsistent with the record as a whole.
Neuman wasn't a treating source; she only examined Mr.
Gass once. See Simila v. Astrue, 573 F.3d 503, 514
(7th Cir. 2009) (recognizing that a nontreating source is one
who doesn't have an “ongoing treatment
relationship” with the patient). Under the regulations,
the ALJ must decide the weight to give a nontreating
physician's opinion by considering whether the expert is