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Neldon v. Berryhill

United States District Court, N.D. Indiana, South Bend Division

September 14, 2018

JOHN M. NELDON, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.



         John M. Neldon appeals the Social Security Administration's decision to deny his application for Social Security Disability Insurance Benefits. An administrative law judge found that Neldon was not disabled within the meaning of the Social Security Act. Neldon raises five main arguments as to why he thinks the ALJ's decision was contrary to law and unsupported by sufficient evidence. After review of these arguments, the ALJ's decision, and the underlying record, I conclude that Neldon's arguments are themselves without merit and unsupported by the evidence. Therefore I will affirm the ALJ's decision.


         In his application for benefits, Neldon alleged a disability onset date of March 1, 2007.[1] [A.R. 29.] At the time of his reconsideration hearing, Neldon was 52 years old and alleged he was disabled primarily on account of pain in his feet and back as a result of various conditions.[2] Prior to his alleged disability, Neldon mostly worked as an electrician within the construction industry and as an HVAC installer. [A.R. 31.]

         In the written decision denying benefits, the ALJ followed the familiar five-step process used to evaluate claims for disability. At step one, the ALJ determined that in some years since the alleged disability onset date, Neldon had engaged in substantial gainful activity, earning annual wages in excess of $34, 000 for three consecutive years. [A.R. 21.] Despite this, the ALJ continued his review of Neldon's applications for all years. At step two, the ALJ determined the following severe impairments: “degenerative disc disease of the spine, bilateral plantar fasciitis, biceps tendon repair on the right, right shoulder degenerative joint disease and right rotator cuff repair.” [A.R. 21-22.] The ALJ found at step three that while these impairments were severe, they did not meet or equal any of the applicable social security listings. [A.R. 22.]

         At step four, the ALJ assessed Neldon's residual functional capacity (“RFC”) and found that Neldon could not perform any of his past relevant work as either an electrician or HVAC installer. [A.R. 32.] The RFC determination was that Neldon was limited to light work, subject to several other restrictions, including limitations in standing, overhead lifting, as well no climbing of ladders, ropes or scaffolds. [A.R. 23.] Consequently at step five, the ALJ determined that there existed jobs in significant numbers in the national economy that Neldon could perform. [A.R. 32.] Specifically, the ALJ found that Neldon could perform the job of school bus monitor and thus that Neldon was not disabled. [A.R. 33.]

         Legal Standard

         At the outset, it is imperative to note that, as a district court judge, I may not make a determination as to whether or not Mr. Neldon is disabled. That's a decision for the Social Security Administration to make. My job is to review the ALJ's ruling to determine whether or not it complies with the applicable standards and regulations. I will affirm the ALJ's decision if his factual determinations are supported by substantial evidence and are not contrary to law. See 42 U.S.C. §405(g). “When reviewing for substantial evidence, we do not displace the ALJ's judgment by reconsidering facts or evidence or making credibility determinations.” Schmidt v. Astrue, 496 F.3d 833, 842 (7th Cir. 2007) (citation omitted). “Because the Commissioner is responsible for weighing the evidence, resolving conflicts and making independent findings of fact, this Court may not decide the facts anew, re-weigh the evidence or substitute its own judgment for that of the Commissioner to decide whether a claimant is or is not disabled.” Powers v. Apfel, 207 F.3d 431, 434-35 (7th Cir. 2000) (internal citations omitted). “In other words, so long as, in light of all the evidence, reasonable minds could differ concerning whether [the claimant] is disabled, [I] must affirm the ALJ's decision denying benefits.” Schmidt, 496 F.3d at 842 (quoting Books v. Chater, 91 F.3d 972, 978 (7th Cir.1996)).


         Neldon's first argument is that the ALJ erred at step two of the process by failing to consider his obesity as part of determining whether he met any of the listed criteria for disability. The issues concerning Neldon's obesity seemingly come out of the blue. His obesity was never even discussed at the hearing before the ALJ despite the fact that Neldon was represented by counsel at the hearing. In all events, the argument is without merit.

         It is true that Neldon had an abnormal BMI as noted in his medical records. [E.g., A.R. 802, 815, 818, 822, 825, 826, 829, 932, 1140.] But as the Commissioner persuasively argues, none of those records, or the medical opinion evidence, noted that Neldon's obesity or BMI were a contributing factor to Neldon's limitations or alleged disability. What's more, the ALJ appears to have been aware of, and at a minimum indirectly considered, Neldon's BMI and related obesity because Neldon's doctors were certainly aware of his obesity and the ALJ considered the opinions of Neldon's doctors. That is enough in these circumstances. Skarbek v. Barnhart, 390 F.3d 500, 504 (7th Cir. 2004) (affirming denial of benefits and finding no error where “although the ALJ did not explicitly consider [plaintiff's] obesity, it was factored indirectly into the ALJ's decision as part of the doctors' opinions”).

         Furthermore, given that there does not appear to be any indication that obesity was contributing factor to Neldon's functional limitations, and Neldon offers nothing more than speculation to the contrary, the ALJ's failure to explicitly address Neldon's BMI in his written opinion would be at most a harmless error as there does not appear to be any basis for Neldon's BMI to affect the step two analysis. See Skarbek, 390 F.3d at 504 (“[A]ny remand for explicit consideration of [the plaintiff's] obesity would not affect the outcome of this case”).

         Neldon's second argument challenges the ALJ's determination at step three that he did not meet any of the social security listings for disability or their medical equivalent. Neldon concedes that he did not meet Listings 1.02 or 1.04 but argues it was reversible error by the ALJ to fail to determine “the critical issue of medical equivalence.” [DE 15 at 22.] Again, Neldon focuses on what he says was the ALJ's inadequate consideration of his obesity. Neldon further argues that the ALJ was required to obtain additional medical expert testimony to evaluate Neldon on this issue. Neither of these arguments warrants a reversal of the ALJ's decision.

         Concerning additional medical expert testimony on the issue of equivalence, Neldon misstates what was required of the ALJ. An ALJ is only required to obtain a medical expert opinion when the ALJ is “finding that the claimant's impairment(s) medically equals a listing.” See Hearings, Appeals, and Litigation Law Manuel (HALLEX) I-2-5-34, 1994 WL 637370. Here, the ALJ found that Neldon did not medically equal a listing. The ALJ was thus not required to obtain additional medical expert testimony to support that conclusion beyond the reasons stated in the ALJ's opinion, including his consideration of the two state agency medical consultants who reviewed and determined that Neldon did not meet any of the listings or their medical equivalence. Sutherlin v. Colvin, No. 1:13-CV-01603-SEB, 2015 WL 1046101, at *5 ...

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