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Gass v. Berryhill

United States District Court, N.D. Indiana, Fort Wayne Division

August 28, 2017

STEVEN GASS, Plaintiff
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant


          Robert L. Miller, Jr. Judge.

         Steven 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.

         I. Background

         Mr. 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 1.

         The ALJ 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;[2]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.

         When 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.

         II. Standard of Review

         The 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 omitted).

         III. Discussion

         Mr. 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.

         A. Listing 11.14

         Mr. 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.

         Mr. 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.

         Under 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.

         The ALJ 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 canes.

         The 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).

         B. The ALJ's Consideration of Mr. Gass's Mental Capacity

         Mr. 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 30[3] 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.

         Dr. 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 ...

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