United States District Court, S.D. Indiana, Evansville Division
REPORT AND RECOMMENDATION ON APPROPRIATE DISPOSITION
OF THE ACTION
Matthew P. Brookman, United States Magistrate Judge
matter was referred to the Magistrate Judge under 28 U.S.C.
§ 636(b)(1)(B) and Fed.R.Civ.P. 72(b) for a Report and
Recommendation as to its appropriate disposition. (Docket
No. 20). Plaintiff Clare Higgs seeks judicial
review of the Social Security Administration's final
decision deeming her ineligible for Disability Insurance
Benefits. The matter is fully briefed. (Docket No.
14; Docket No. 18; Docket No. 19.) It
is recommended that the District Judge
REMAND the decision of the Commissioner of
the Social Security Administration finding that Plaintiff
Clare Higgs is not disabled, pursuant to sentence four of
42 U.S.C. § 405(g) for further consideration,
consistent with this opinion.
Higgs filed an application for Disability Insurance Benefits
under Title II of the Social Security Act on January 27,
2014, alleging that she became disabled on August 5, 2013.
Her claim was denied initially and upon reconsideration. At
Ms. Higgs's request, a hearing was held on July 12, 2016,
before Administrative Law Judge (ALJ) Jason R. Yoder, where
Ms. Higgs and James Borderay, a vocational expert, appeared
and testified. On September 2, 2016, the ALJ issued a
decision concluding that Ms. Higgs was not disabled. Ms.
Higgs requested a review of the ALJ's decision by the
Appeals Council. The Appeals Council denied review on July
19, 2017, thereby making the ALJ's decision the final
decision of the Social Security Commissioner. 20 C.F.R.
§ 404.981; Schmidt v. Astrue, 496 F.3d 833, 841
(7th Cir. 2007). On August 11, 2017, Ms. Higgs timely filed
this civil action under 42 U.S.C. § 405(g) for review of
the Commissioner's decision.
for Proving Disability
prove disability, a claimant must show she is unable 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 twelve months.” 42 U.S.C. §
1382c(a)(3)(A). Plaintiff is disabled if her
impairments are of such severity that she is not able to
perform the work she previously engaged in and, if based on
her age, education, and work experience, she cannot engage in
any other kind of substantial gainful work that exists in
significant numbers in the national economy. 42 U.S.C. §
1382c(a)(3)(B). The Social Security Administration
(“SSA”) has implemented these statutory standards
by, in part, prescribing a five-step sequential evaluation
process for determining disability. 20 C.F.R. §
one asks if the claimant is currently engaged in substantial
gainful activity; if she is, then she is not disabled. Step
two asks whether the claimant's impairments, singly or in
combination, are severe. If they are not, then she is not
disabled. A severe impairment is one that
“significantly limits [a claimant's] physical or
mental ability to do basic work activities.” 20 C.F.R.
§ 404.1520(c). The third step is an analysis of whether
the claimant's impairments, either singly or in
combination, meet or medically equal the criteria of any of
the conditions in the Listing of Impairments, 20 C.F.R. Part
404, Subpart P, Appendix 1 (“the
Listings”). The Listing of Impairments includes medical
conditions defined by criteria that the SSA has
pre-determined are disabling, so that if a claimant meets all
of the criteria for a listed impairment or presents medical
findings equal in severity to the criteria for the most
similar listed impairment, then the claimant is presumptively
disabled and qualifies for benefits. Sims v.
Barnhart, 309 F.3d 424, 428 (7th Cir. 2002).
claimant's impairments do not satisfy a listing, then her
residual functional capacity (RFC) is determined for purposes
of steps four and five. RFC is a claimant's ability to do
work on a regular and continuing basis despite her
impairment-related physical and mental limitations. 20
C.F.R. § 404.1545. At the fourth step, if the
claimant has the RFC to perform her past relevant work, then
she is not disabled. The fifth step asks whether there is
work in the relevant economy that the claimant can perform,
based on his vocational profile (age, work experience, and
education) and her RFC. If so, then she is not disabled.
individual claiming disability bears the burden of proof at
steps one through four. Bowen v. Yuckert, 482 U.S. 137,
146 n.5 (1987). If the claimant meets that burden, then
the Commissioner has the burden at step five to show that
work exists in significant numbers in the national economy
that the claimant can perform, given her age, education, work
experience, and functional capacity. 20 C.F.R. §
404.1560(c)(2); Young v. Barnhart, 362 F.3d
995, 1000 (7th Cir. 2004).
for Review of the ALJ's Decision
review of the Commissioner's (or ALJ's) factual
findings is deferential. This Court must affirm the ALJ's
decision unless it lacks the support of substantial evidence
or rests upon a legal error. See, e.g., Nelms v.
Astrue, 553 F.3d 1093, 1097 (7th Cir. 2009); 42 U.S.C.
§ 405(g). Substantial evidence means evidence that a
reasonable person would accept as adequate to support a
conclusion. Dixon v. Massanari, 270 F.3d 1171, 1176
(7th Cir. 2001). The ALJ- not the Court-holds discretion to
weigh evidence, resolve material conflicts, make independent
factual findings, and decide questions of credibility.
Richardson v. Perales, 402 U.S. 389, 399-400 (1971).
Accordingly, the Court may not re-evaluate facts, reweigh
evidence, or substitute its judgment for the ALJ's.
See Butera v. Apfel, 173 F.3d 1049, 1055
(7th Cir. 1999).
is required to articulate a minimal, but legitimate,
justification for his decision to accept or reject specific
evidence of a disability. Scheck v. Barnhart, 357
F.3d 697, 700 (7th Cir. 2004). The ALJ need not address every
piece of evidence in his decision, but he cannot ignore a
line of evidence that undermines the conclusions he made. The
ALJ must trace the path of his reasoning and connect the
evidence to his findings and conclusions. Arnett v.
Astrue, 676 F.3d 586, 592 (7th Cir. 2012); Clifford
v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).
The ALJ's Sequential Findings
found that Higgs had not engaged in substantial gainful
activity since August 5, 2013, the alleged onset
date-therefore, the ALJ proceeded to step two of the
analysis. (Docket No. 12-2 at ECF p. 17).
two, the ALJ determined that Higgs had severe impairments of
degenerative disc disease of the lumbar and cervical spine,
migraine headaches, hip bursitis, alcohol use disorder in
partial remission, left shoulder bursitis,
fibromyositis/fibromyalgia, obesity, sleep apnea, and
depression. Id. See 20 C.F.R. § 416.920(c). The
ALJ also determined that Higgs had the following non-severe
impairments: hypertension, hyperlipidemia, and irritable
bowel syndrome. (Docket No. 12-2 at ECF p. 18).
three, the ALJ found that Higgs's combination of
impairments did not meet or medically equal the severity of
one of the listed impairments. 20 C.F.R § 404,
subpart P, Appendix 1. (Docket No. 12-2 at ECF p.
18). The ALJ considered Listing 1.04, Listing 3.10, Listing
11.03, and considered Higgs's fibromyalgia pursuant to
SSR 12-2p and obesity pursuant to SSR 02-1p. (Docket No.
12-2 at ECF p. 19). Further, the ALJ considered
Higgs's mental impairments, singly and in combination,
pursuant to the criteria of Listing 12.04, 12.06, and 12.09,
specifically whether the “paragraph B” criteria
were satisfied. (Docket No. 12-2 at ECF p. 19). The
ALJ noted that Higgs did not meet the “paragraph
B” criteria because she did not have at least two of
the following: marked restrictions of daily living; marked
difficulties in maintaining social functioning; marked
difficulties in maintaining concentration, persistence, or
pace; or repeated episodes of decompensation, each of
extended duration. Id. Instead, the ALJ concluded
that the evidence showed Higgs's activities of daily
living show mild restriction; social functioning show
moderate difficulties; concentration, persistence, or pace
show moderate difficulties; and two recorded episodes of
decompensation. (Docket No. 12-2 at ECF p. 20).
to Step four, the ALJ determined that Higgs had the RFC to
perform light work with the following limitations:
[S]he can lift and carry up to 20 pounds occasionally and
less than 10 pounds frequently; she can sit for at least 6
out of 8 hours, and stand and walk for about 6 out of 8
hours; and she can frequently balance and occasionally stoop,
kneel crawl, and crouch, but never climb ladders, ropes or
scaffolds. She must avoid all exposure to dangerous workplace
hazards such as exposed moving machinery and unprotected
heights; and she must avoid concentrated exposure to
temperature extremes such as heat and cold, wetness,
humidity, and vibration. She can understand and remember
simple instructions and carry out simple, routine tasks that
require little independent judgment or decision-making at an
average production rate pace but should not perform tasks
with stringent speed or strict rate based production