United States District Court, S.D. Indiana, Evansville Division
SCOTT J. HEAD, Plaintiff,
NANCY A. BERRYHILL Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION ON APPROPRIATE DISPOSITION
OF THE ACTION
Matthew P. Brookman United States Magistrate Judge
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].
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
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
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. Â§§ 423(d)(2)(B), 1382c(a)(3)(G); 20
C.F.R. §§ 404.1523, 416.923.
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. Â§§ 404.1520, 416.920(a)
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
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”). 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
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.
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
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.
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
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.
Head argues several errors in the ALJ's decision.
Ms. Westfall's opinions.
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.
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.
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.
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.
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 ...