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Sherlyn M. v. Saul

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

September 30, 2019

SHERLYN M., [1] Plaintiff,
ANDREW M. SAUL, Commissioner of the Social Security Administration, Defendant.



         Plaintiff Sherlyn M. (“Ms. M.”) applied for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) from the Social Security Administration (“SSA”) on August 21, 2014, alleging an onset date of April 15, 2012. [ECF No. 5-6 at 4; ECF No. 5-6 at 11.] Her applications were initially denied on December 19, 2014, [ECF No. 5-4 at 2; ECF No. 5-4 at 6], and upon reconsideration on March 17, 2015, [ECF No. 5-4 at 11; ECF No. 5-4 at 14]. Administrative Law Judge Belinda J. Brown conducted a hearing on November 1, 2016 and issued an unfavorable decision on December 30, 2016. [ECF No. 5-3 at 50-53.] On July 13, 2017, the Appeals Council remanded the case back to an Administrative Law Judge to consider new and material evidence that had been submitted on appeal. [ECF No. 5-3 at 67-68.] Administrative Law Judge Ronald Jordan (the “ALJ”) conducted a hearing on November 30, 2017. [ECF No. 5-2 at 44-61.] The ALJ issued a decision on December 19, 2017, concluding that Ms. M. was not entitled to receive DIB and/or SSI. [ECF No. 5-2 at 13.] The Appeals Council denied review on June 17, 2018. [ECF No. 5-2 at 2.] On August 10, 2018, Ms. M. timely filed this civil action asking the Court to review the denial of benefits according to 42 U.S.C. §§ 405(g) and 1383(c). [ECF No. 1.]


         Standard of Review

         “The Social Security Act authorizes payment of disability insurance benefits … to individuals with disabilities.” Barnhart v. Walton, 535 U.S. 212, 214 (2002). “The statutory definition of ‘disability’ has two parts. First, it requires a certain kind of inability, namely, an inability to engage in any substantial gainful activity. Second, it requires an impairment, namely, a physical or mental impairment, which provides reason for the inability. The statute adds that the impairment must be one that has lasted or can be expected to last … not less than 12 months.” Id. at 217.

         When an applicant appeals an adverse benefits decision, this Court’s role is limited to ensuring that the ALJ applied the correct legal standards and that substantial evidence exists for the ALJ’s decision. Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004) (citation omitted). For the purpose of judicial review, “[s]ubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quotation omitted). Because the ALJ “is in the best position to determine the credibility of witnesses, ” Craft v. Astrue, 539 F.3d 668, 678 (7th Cir. 2008), this Court must accord the ALJ’s credibility determination “considerable deference, ” overturning it only if it is “patently wrong.” Prochaska v. Barnhart, 454 F.3d 731, 738 (7th Cir. 2006) (quotations omitted).

         The ALJ must apply the five-step inquiry set forth in 20 C.F.R. § 404.1520(a)(4)(i)-(v)[2], evaluating the following, in sequence:

(1) whether the claimant is currently [un]employed; (2) whether the claimant has a severe impairment; (3) whether the claimant’s impairment meets or equals one of the impairments listed by the [Commissioner]; (4) whether the claimant can perform her past work; and (5) whether the claimant is capable of performing work in the national economy.

Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000) (citations omitted) (alterations in original). “If a claimant satisfies steps one, two, and three, she will automatically be found disabled. If a claimant satisfies steps one and two, but not three, then she must satisfy step four. Once step four is satisfied, the burden shifts to the SSA to establish that the claimant is capable of performing work in the national economy.” Knight v. Chater, 55 F.3d 309, 313 (7th Cir. 1995).

         After Step Three, but before Step Four, the ALJ must determine a claimant’s residual functional capacity (“RFC”) by evaluating “all limitations that arise from medically determinable impairments, even those that are not severe.” Villano v. Astrue, 556 F.3d 558, 563 (7th Cir. 2009). In doing so, the ALJ “may not dismiss a line of evidence contrary to the ruling.” Id. The ALJ uses the RFC at Step Four to determine whether the claimant can perform her own past relevant work and if not, at Step Five to determine whether the claimant can perform other work. See 20 C.F.R. § 404.1520(e), (g). The burden of proof is on the claimant for Steps One through Four; only at Step Five does the burden shift to the Commissioner. See Clifford, 227 F.3d at 868.

         If the ALJ committed no legal error and substantial evidence exists to support the ALJ’s decision, the Court must affirm the denial of benefits. Barnett, 381 F.3d at 668. When an ALJ’s decision is not supported by substantial evidence, a remand for further proceedings is typically the appropriate remedy. Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 355 (7th Cir. 2005). An award of benefits “is appropriate only where all factual issues have been resolved and the record can yield but one supportable conclusion.” Id. (citation omitted).



         Ms. M. was 58 years of age at the time she alleged her disability began. [ECF No. 5-6 at 4.] She has completed high school and previously worked as factory floor supervisor and managing and training subcontractor. [ECF No. 5-7 at 10-11.][3]

         The ALJ followed the five-step sequential evaluation set forth by the Social Security Administration in 20 C.F.R. § 404.1520(a)(4) and ultimately concluded that Ms. M. was not disabled. [ECF No. 5-2 at 24.] Specifically, the ALJ found as follows:

• Ms. M. last met the insured status requirements for DIB on December 31, 2015 (the date last insured or “DLI”).[4] [ECF No. 5-2 at 18.]
• At Step One, Ms. M. had not engaged in substantial gainful activity[5] since April 15, 2012, the alleged onset date. [ECF No. 5-2 at 18.]
• At Step Two, she had “the following severe impairments: obesity, degenerative disc disease of the lumbar spine, and osteoarthritis of the bilateral knees.” [ECF No. 5-2 at 18 (citations omitted).]
• At Step Three, Ms. M. did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments. [ECF No. 5-2 at 18-19.]
• After Step Three but before Step Four, she had the RFC “to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except she can lift, carry, push or pull ten pounds occasionally and five pounds frequently. She can stand and walk two hours in an eight-hour workday and sit six hours. She should avoid stooping, balancing, crouching, crawling and kneeling. She can occasionally climb ramps and stairs, but cannot climb ladders, ropes or scaffolds. She should not operate foot pedals bilaterally or work around hazards such as unprotected heights or unguarded, dangerous, moving machinery. Lastly, she should not work in extreme temperatures.” [ECF No. 5-2 at 19.]
• At Step Four, relying on the testimony of the vocational expert (“VE”) and considering Ms. M.’s RFC, she was incapable of performing any of her past relevant work as a floor supervisor and business trainer. [ECF No. 5-2 at 23.]
• At Step Five, relying on the VE’s testimony and considering Ms. M.’s age, education, work experience, and RFC, she had acquired work skills from her past relevant work that were transferable to other representative occupations with jobs existing in significant numbers in the national economy that she could have performed through the date of the decision, including as a production clerk, personnel scheduler, and appointment clerk. [ECF No. 5-2 at 23-24.]



         Ms. M. raises three assignments of error, that the ALJ: (1) inadequately analyzed Listings 1.02 and 1.04, including by failing to consider all the regulatory examples of an inability to ambulate effectively, (2) did not follow the applicable SSA rulings in concluding that Ms. M. was capable of performing other work based on her RFC and transferable skills from her past relevant work, and (3) failed to acknowledge Ms. M.’s strong work history when assessing her credibility.

         A. Listings Analysis; Inability to Ambulate Effectively

         Ms. M. contends that the ALJ’s analysis of Listings 1.02 and 1.04 was inadequate, being limited to no more than a simple list of the respective requirements and the ALJ’s conclusions. [ECF No. 7 at 17.] Ms. M. acknowledges that the ALJ explained that he had given great weight to the opinion of a medical expert, Mark O. Farber, M.D., that no listing was met or equaled. [ECF No. 7 at 18 (citing ECF No. 5-2 at 21).] However, Ms. M. contends that Dr. Farber “did not specifically provide an explanation as to why all of the evidence that does support a meeting or equaling status is insufficient to make such a finding.” [ECF No. 7 at 18.] Ms. M. also asserts that Dr. Farber’s “testimony about the record is not even accurate.” [ECF No. 7 at 18-19.] Ms. M. acknowledges that “an inability to ambulate effectively” is required by both of the relevant listings, but she asserts that the ALJ failed to consider all the regulatory examples of the functional requirement and also relied on his observations of her at the hearing, which she contends “is an inadequate reason to dismiss the requirement of effective ambulation.” [ECF No. 7 at 20-22.]

         To meet an impairment identified in the listings, a claimant must establish, with objective medical evidence, the precise criteria specified in the listing. See20 C.F.R. § 404.1525; Sullivan v. Zebley, 493 U.S. 521, 530-31 (1990); Rice v. Barnhart, 384 F.3d 363, 369 (7th Cir. 2004) (“The applicant must satisfy all of the criteria in the Listing in order to receive an award of” benefits at Step Three). In the alternative, a claimant can establish “medical equivalence” in the absence of one or more of the findings if she has other findings related to the impairment or has a combination of impairments that “are at least of equal medical significance.” See 20 C.F.R. § 404.1526(a)-(b). In considering whether a claimant’s condition meets or equals a listed impairment, an ALJ must discuss the listing by name and offer more than a perfunctory analysis of the listing. See Brindisi ex rel. Brindisi v. Barnhart, 315 F.3d 783, 786 (7th Cir. 2003); Scott v. Barnhart, 297 F.3d 589, 595-96 (7th Cir. 2003). For example, in Minnick v. Colvin, 775 F.3d 929, 935-36 (7th Cir. 2015), the Seventh Circuit found the ALJ’s perfunctory analysis to warrant remand when it was coupled with significant evidence of record that arguably supported the listing. See Kastner v. Astrue, 697 F.3d 642, 647-48 (7th Cir. 2012) (remanding where the ALJ’s cursory listing analysis failed to articulate a rationale for denying benefits when the record supported finding in the claimant’s favor)). To demonstrate that an ALJ’s listing conclusion was not supported by substantial evidence, the claimant must identify evidence of record that was misstated or ignored which met or equaled the criteria. See, e.g., Sims v. Barnhart, 309 F.3d 424, 429-30 (7th Cir. 2002).

         The ALJ’s analysis of the relevant listings in the portion of the decision dedicated to his Step Three findings was conclusory. [See ECF No. 5-2 at 19.] However, other portions of the ALJ’s decision provided further explanation of the ALJ’s relevant analysis. The Seventh Circuit has explained “it is proper to read the ALJ’s decision as a whole, and . . . it would be needless formality to have the ALJ repeat substantially similar factual analyses” throughout the decision. Rice, 384 F.3d at 370 n.5.

         To begin with, the ALJ’s Step Three conclusions were significantly bolstered by the opinion of the medical expert, Dr. Farber. The ALJ explained:

I give Dr. Farber’s opinion great weight as he has Social Security Disability program knowledge and experience as an independent, objective and impartial medical expert evaluating Social Security Disability cases. Further, he has had the opportunity to examine the entire medical record and offered explanation in support of his opinion, which is consistent with the record as a whole.

[ECF No. 5-2 at 21.] The Seventh Circuit has held that “[t]he ALJ may properly rely upon the opinion of … medical experts, ” as substantial evidence that no listing was met or equaled. Scheck v. Barnhart, 357 F.3d 697, 700 (7th Cir. 2004) (citing Scott v. Sullivan, 898 F.2d 519, 524 (7th Cir. 1990); Farrell v. Sullivan, 878 F.2d 985, 990 (7th Cir. 1989)). In Scheck, the Seventh Circuit discussed the ALJ’s “duty to ‘minimally articulate his or her justification for rejecting or accepting specific evidence of disability, ’” and found the absence of any contrary, supportive opinion a relevant factor in assessing whether the ALJ’s listing conclusions were supported by substantial evidence. 357 F.3d at 700 (quoting Steward v. Bowen, 858 F.2d 1295, 1299 (7th Cir. 1988) (internal citations removed)). Here too, there is no supportive medical opinion in favor of Ms. M. that contradicts the ALJ’s or the medical expert’s listing conclusions.

         However, unlike in Scheck, where there was “no evidence” supporting a listing, 357 F.3d at 701 (emphasis in original), Ms. M. presents significant evidence that established the diagnostic and gross anatomical deformity requirements of Listing 1.02(A) for major dysfunction of a joint, including osteoarthritis of her bilateral knees, pelvic subluxation and hypomobility, limited and asymmetrical range of motion and strength in her lower extremities, and effusion-a sign of derangement-of her knee joints. [See ECF No. 7 at 18-20.] Listing 1.02(A) requires:

Major dysfunction of a joint(s) (due to any cause): Characterized by gross anatomical deformity (e.g., subluxation, contracture, bony or fibrous ankylosis, instability) and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joint(s), and findings on appropriate medically acceptable imaging ...

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