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Head v. Berryhill

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

December 19, 2017

SCOTT J. HEAD, Plaintiff,
NANCY A. BERRYHILL Acting Commissioner of the Social Security Administration, Defendant.


          Matthew P. Brookman United States Magistrate Judge

         Plaintiff Scott J. Head applied for Social Security disability-insurance benefits and supplemental-security-income disability benefits, in May 2013, based on a disability that he alleged began in March 2012. The defendant Commissioner of Social Security denied his applications and Mr. Head brought this suit for judicial review of those denials. The assigned district judge referred this Cause to the undersigned magistrate judge for issuance of a report and recommendation regarding the appropriate disposition of this matter. Entry Referring Matter to Magistrate Judge [Dkt No. 16].


         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 ALJ [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), 1382(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 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), 1382c(a)(3)(B); 20 C.F.R. §§ 404.1505, 404.1566, 416.905, 416.966. The combined effect of all of an applicant's impairments shall be considered throughout the disability determination process. 42 U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(G); 20 C.F.R. §§ 404.1523, 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, 416.925. If the applicant's impairments do not satisfy the criteria of a listing, then her 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. §§ 404.1520, 416.920(a)

         The burden rests on the applicant to prove satisfaction of 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 her to perform the full range of work at her assigned RFC level, then the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2, Part A (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 who is dissatisfied with the decision of the ALJ may request the SSA's 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.


         In 2002, while he was riding a bicycle, Mr. Head was struck by a pick-up truck and sustained a brain injury. He was hospitalized for approximately one and one-half years.

         At step one, the ALJ found that Mr. Head had not engaged in substantial gainful activity since his alleged onset date in March 2012. At step two, he found that Mr. Head has the severe impairments of neurocognitive disorder due to traumatic brain injury, adjustment disorder with depressed mood, attention deficit disorder, and degenerative joint disease status post multiple injuries sustained in the 2002 accident. At step three, the ALJ found that Mr. Head's impairments, singly and in combination, severe and non-severe, did not meet or medically equal any of the conditions in the Listing of Impairments. The ALJ explicitly evaluated Listings 1.02A (major dysfunction of a joint(s), due to any cause, in a peripheral weight-bearing joint), 1.02B (same, in one major peripheral joint in both upper extremities), 12.02 (organic mental disorders), and 12.04 (affective disorders).

         For steps four and five, the ALJ determined Mr. Head's RFC. He found that Mr. Head has the capacity to perform sedentary work except for certain exertional and non-exertional restrictions. The non-exertional restrictions are: (1) can understand and remember simple instructions; (2) can carry out simple, routine tasks; (3) can perform tasks at an average production rate, but not at a stringent speed or strict production rate; (4) tasks learned by demonstration; (5) work in a stable work setting with little change in tools, processes, or setting, and necessary changes introduced gradually; (6) cannot perform tasks requiring intensely focused “concentration/attention;” and (7) can perform tasks that allow a brief break and a brief conversation with co-workers.

         At step four, the ALJ found that this RFC prevents performance of Mr. Head's past relevant work. At step five, relying on the testimony of a vocational expert, the ALJ found that a significant number of jobs exist in the national economy that Mr. Head can perform with his RFC, age (40 years), and education (at least high school and able to communicate in English). Therefore, the ALJ found that Mr. Head is not disabled.

         The Commissioner's Appeals Council denied Mr. Head's request to review the ALJ's decision, which rendered that decision the Commissioner's final decision on his claims and the one that the Court reviews.


         Mr. Head argues several errors in the ALJ's decision.

         1. Step-three determination.

         a. Ms. Westfall's opinions.

         Mr. Head first argues that the ALJ erred by failing to mention evidence from Ms. Westfall, Mr. Head's speech-language therapist. Mr. Head had 44 outpatient therapy sessions with Ms. Westfall from September 2013 to August 2014. She completed a “Cognitive Assessment Addendum” form upon Mr. Head's admission to therapy, [Dkt. No. 7, at ECF p. 376], and a progress assessment when he was discharged, [Dkt. No. 7, at ECF pp. 490-89]. On the admission form, Ms. Westfall rated Mr. Head as “profoundly impaired” (the most severe level, a 1 on a 5-point scale) or “maximally impaired” (a 4) in the areas of attention, memory, insight, and executive function. She rated him as “moderately impaired” in problem solving/reasoning and in safety awareness (a 3) and as “occasional difficulty” (a 1) in the area of “orientation.” In her discharge summary, Ms. Westfall wrote that Mr. Head “has difficulty taking in information and difficulty expressing information;” his employability is limited; and he requires a job that is repetitive, has little change, and includes extensive training, written instructions, and extra time. She rated Mr. Head as not meeting the long-term goals in the following areas: improving memory to a level adequate for home, work, and parenting needs; problem solving to the same level; organization to the same level; reading to the same level; and auditory comprehension adequate for work needs.

         Mr. Head argues that the ALJ was required to address Ms. Westfall's opinions because they contradicted his finding that Mr. Head's examinations did not demonstrate “severe/marked deficits in memory or concentration/attention since 2012, ” and because her opinions were consistent with the opinions of Jeffrey W. Gray, Ph.D., and Edmund Haskins, Ph.D., psychologists who performed consulting examinations of Mr. Head. Plaintiff's Brief in Support of Complaint [Dkt. 9, at ECF p. 6] (“Plaintiff's Brief”). Mr. Head also contends that Ms. Westfall's opinions show that he has at least “marked” difficulties in the two functional categories of maintaining social functioning and maintaining concentration, persistence, or pace, which would satisfy the Paragraph B severity criteria of Listing 12.02.

         The Commissioner first responds that Ms. Westfall is not an acceptable medical source. However, she was certified as a speech-language pathologist by the American Speech-Language-Hearing Association, which qualifies her as an acceptable medical source “for purposes of establishing speech or language impairments only.” 20 C.F.R. § 404.1513(a)(5). Mr. Head stated that “[i]t is clear from her evaluation [Ms. Westfall] was giving and [sic] opinion regarding Head's ability to communicate, ” Plaintiff's Brief [Dkt. No. 15, at ECF p. 2], but she identified only two qualifying speech/language opinions from her discharge summary: Mr. Head “has difficulty taking in information and difficulty expressing information, ” [Dkt. No. 7, at ECF p. 490], and he had not achieved the goal of improving auditory comprehension to a level adequate for work needs, [Dkt. No. 7, at ECF p. 492]. Plaintiff's Brief [Dkt. No. 15, at ECF p. 3]. It is clear that most of Ms. Westfall's opinions that are cited and relied upon by Mr. Head address issues such as memory, reading, problem solving, organization, repetitive work, slow processing, attention, alertness, and reasoning, rather than the establishment of a speech or language impairment. It is not apparent that any of these opinions are related to a speech and/or language impairment and neither Ms. Westfall nor Mr. Head explained any such relationship.

         Limiting consideration to the two identified speech/language opinions by Ms. Westfall, Mr. Head does not explain how these difficulties support his Listings argument that he has at least “marked” difficulties in the functional categories of maintaining social functioning and maintaining concentration, persistence, or pace, such that Paragraph B of Listing 12.02 would be satisfied. In short, Mr. Head fails to show how these two opinions by Ms. Westfall demonstrate that Listing 12.02 is satisfied.

         In addition, even granting that these opinions of Ms. Westfall are contrary to the ALJ's finding of less-than-marked difficulties in maintaining social functioning and maintaining concentration, persistence, or pace, Mr. Head has not shown why Ms. Westfall's opinions required specific address by the ALJ or why the failure to address the opinions is not harmless error. An ALJ is not required to discuss every piece of information in the record that is inconsistent with the rest of the record evidence or his findings and conclusions. Murphy v. Colvin,759 F.3d 811, 817-18 (7th Cir. 2014) (although an ALJ may not dismiss a line of evidence that is contrary to his findings, he need not articulate a complete evaluation of every piece of evidence); Pepper v. Colvin,712 F.3d 351, 362-63 (7th Cir. 2013). Mr. Head has not shown that Ms. Westfall's opinions are unique in the record. To the contrary, the ALJ discussed the findings and opinions of medical experts that were consistent with Ms. Westfall's evidence and that were inconsistent with it. Because Ms. Westfall's opinions ― in her ...

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