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Jesus F. v. Saul

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

December 16, 2019

JESUS F., Plaintiff,
v.
ANDREW M. SAUL, Commissioner of the Social Security Administration, Defendant.

          ORDER

          Doris L. Pryor, United States Magistrate Judge.

         Plaintiff Jesus F.[1] seeks judicial review of the denial by the Commissioner of the Social Security Administration (“Commissioner”) of his application for Social Security Disability Insurance Benefits (“DIB”) under Title II and for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act (“the Act”). See 42 U.S.C. §§ 423(d), 405(g). For the reasons set forth below, this Court hereby REVERSES the ALJ's decision denying the Plaintiff benefits and REMANDS this matter for further consideration.

         I. Procedural History

         On June 10, 2008, Jesus filed his initial application for Title II and Title XVI applications for a period of disability and disability insurance benefits. [Dkt. 29 at 156-157 (R. 157-58).] On February 14, 2011, the Social Security Administration (“SSA”) issued a preliminary determination that Jesus was not eligible for SSI benefits because of his monthly income of $1, 200. [Dkt. 29 at 169 (R. 170).]

         On March 1, 2011, Jesus filed a second application for Title II Disability Insurance Benefits (“Second Application). [Dkt. 29 at 159-160 (R. 160-61).] On March 1, 2011, the SSA again issued a preliminary determination stating Jesus was not eligible for SSI benefits based on his monthly income of $1, 200. [Dkt. 29 at 166 (R. 167).] On April 12, 2011, Jesus received a letter denying his application for Title II benefits because his physical impairments did not prevent him from working. [Dkt. 29-1 at 1-3 (R. 174-76).] Jesus did not request reconsideration of this decision.

         On July 20, 2012, Jesus filed a third application for Title II disability insurance benefits and for Title XVI SSI benefits, collectively (“Third Application”). [Dkt. 29-1 at 4-13 (R. 177-186).] On September 27, 2012, the SSA denied Jesus's application for Title XVI SSI benefits based on income. [Dkt. 29-1 at 62 (R. 230).] On November 28, 2012, Jesus filed a request for reconsideration of his Third Application because he believed the SSA had incorrect information regarding his monthly income. [Dkt. 29-1 at 75 (R. 243).] On January 16, 2013, the SSA found that their initial decision denying Title XVI SSI benefits was correct. [Dkt. 29-1 at 82-84 (R. 250-52).] On March 8, 2013, Jesus filed a request for a hearing before an Administrative Law Judge. [Dkt. 29-1 at 94 (R. 262).] On July 11, 2013, Plaintiff's counsel submitted a letter to the SSA requesting to reopen Jesus's Second Application regarding his Title II application. [Dkt. 29-1 at 101-102 (R. 269-270).] On July 16, 2013, the SSA sent a letter to Jesus's counsel stating that he was medically denied for Title II benefits in his Third Application, and all subsequent Title II applications would be automatic technical denials based on res judicata. [Dkt. 29-1 at 135 (R. 303).] Moreover, the SSA concluded that “[a] new medical decision will never be made for Title II.” [Id.]

         On September 30, 2014, Jesus filed an application for Title II and Title XVI benefits with the SSA, and again requested reopening and consolidation of prior claims (“Fourth Application”). [Dkt. 29-1 at 142, 173 (R. 310, 336).]

         On June 6, 2016, ALJ Albert J. Velasquez conducted a hearing, where Jesus testified. The ALJ determined that a supplemental hearing was necessary, where medical experts would be required to appear and testify. [Dkt. 29-11 at 50-51 (R. 1976-77).] The ALJ also gave Plaintiff's counsel an opportunity to provide a brief on why the ALJ should reopen and consolidate the previous cases, why no medical determination had been made previously, and the effect of Plaintiff's personal injury settlement. [Id.] On September 16, 2016, the ALJ conducted a supplemental hearing, where Jesus, vocational expert Dewey Franklin, and medical expert Dr. James Wargel testified.

         On May 1, 2017, ALJ Velasquez issued a partially favorable decision finding that Jesus was disabled as of January 7, 2016 for purposes of SSI on his Fourth Application. [Dkt. 29 at 30 (R. 30).] The ALJ stated that he would not reopen Jesus's initial application for Title II and Title XVI benefits filed on May 30, 2008, nor would he reopen the Second Application requesting Title II benefits, filed on March 1, 2011. [Id.] In assessing Jesus's Title II claim in the Fourth Application, the ALJ found that Jesus was not disabled through the date last insured of December 31, 2010. [Id.] On February 6, 2018, the Appeals Council issued an order denying Plaintiff's Request for Review of the ALJ's decision. Jesus now requests judicial review of the Commissioner's decision. See 42 U.S.C. § 1383(c)(3).

         II. Standard of Review

         To prove disability, a claimant must show he 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. § 423(d)(1)(A). To meet this definition, a claimant's impairments must be of such severity that he is not able to perform the work he previously engaged in and, based on his age, education, and work experience, he cannot engage in any other kind of substantial gainful work that exists in significant numbers in the national economy. 42 U.S.C. § 423(d)(2)(A). 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. § 404.1520. The ALJ must consider whether:

(1) the claimant is presently [un]employed; (2) the claimant has a severe impairment or combination of impairments; (3) the claimant's impairment meets or equals any impairment listed in the regulations as being so severe as to preclude substantial gainful activity; (4) the claimant's residual functional capacity leaves [him] unable to perform [his] past relevant work; and (5) the claimant is unable to perform any other work existing in significant numbers in the national economy.

Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 351-52 (7th Cir. 2005) (citation omitted). An affirmative answer to each step leads either to the next step or, at steps three and five, to a finding that the claimant is disabled. 20 C.F.R. § 404.1520; Briscoe, 425 F.3d at 352. A negative answer at any point, other than step three, terminates the inquiry and leads to a determination that the claimant is not disabled. 20 C.F.R. § 404.1520. The claimant bears the burden of proof through step four. Briscoe, 425 F.3d at 352. If the first four steps are met, the burden shifts to the Commissioner at step five. Id. The Commissioner must then establish that the claimant-in light of his age, education, job experience and residual functional capacity to work-is capable of performing other work and that such work exists in the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. § 404.1520(f).

         The Court reviews the Commissioner's denial of benefits to determine whether it was supported by substantial evidence or is the result of an error of law. Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). Evidence is substantial when it is sufficient for a reasonable person to conclude that the evidence supports the decision. Rice v. Barnhart, 384 F.3d 363, 369 (7th Cir. 2004). The standard demands more than a scintilla of evidentiary support but does not demand a preponderance of the evidence. Wood v. Thompson, 246 F.3d 1026, 1029 (7th Cir. 2001). Thus, the issue before the Court is not whether Jesus is disabled, but, rather, whether the ALJ's findings were supported by substantial evidence. Diaz v. Chater, 55 F.3d 300, 306 (7th Cir. 1995).

         In this substantial-evidence determination, the Court must consider the entire administrative record but not “reweigh evidence, resolve conflicts, decide questions of credibility, or substitute our own judgment for that of the Commissioner.” Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000). Nevertheless, the Court must conduct a critical review of the evidence before affirming the Commissioner's decision, and the decision cannot stand if it lacks evidentiary support or an adequate discussion of the issues, Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003); see also Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002).

         When an ALJ denies benefits, he must build an “accurate and logical bridge from the evidence to his conclusion, ” Clifford, 227 F.3d at 872, articulating 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, and he 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 at 872.

         III. Background

         A. Factual Background

         Jesus was 44 years old as of his date last insured in December 2010 and is 53 now. [Dkt. 29-1 at 20 (R. 189).] He obtained his General Educational Development (“GED”) certification. [Dkt. 29-11 at 32-33 (R. 1958-959).] He has past relevant work history as a forklift driver, tree trimmer, roofer, construction laborer, and materials handler. [Dkt. 29 at 27 (R. 27).]

         B. ALJ Decision

         In determining whether Jesus qualified for benefits under the Act, the ALJ went through the five-step analysis required by 20 C.F.R. § 404.1520(a). At step one, the ALJ found that Jesus was insured through December 31, 2010 and had not been engaged in substantial gainful activity since his alleged onset date of disability. [Dkt. 29 at 22 (R. 22).] At step two, the ALJ found that Jesus had severe impairments of degenerative disc disease of the lumbar spine, general anxiety disorder, and adjustment disorder and nonsevere impairments of a history of substance abuse and bowel and bladder dysfunction. [Id.]

         At step three, the ALJ considered Jesus's spinal disorder under Listing 1.04 and determined that Jesus did not meet or medically equal any listing. [Dkt. 29 at 22-23 (R. 22-23).] Next, the ALJ determined that since September 26, 2007[2], Jesus has had an RFC to perform a limited range of sedentary work, with the following requirements: lifting and carrying 10 pounds occasionally and 5 pounds frequently; could sit for 6 hours of the work day if permitted to alternate to a standing position for 1-2 minutes of each hour and stand/walk for 4 hours of the work day if no standing period exceeded 30 minutes; occasionally climb ramps and stairs; avoid work at unprotected heights, around dangerous moving machinery, or around open flames or large bodies of water; work should be able to be learned in 30 days or less by demonstrations and should not require more than superficial interaction with the public and coworkers; work should have no requirement for production-like quotas; no requirement for frequent and rapid changes of work settings or type of work; and the work should not be performed where alcoholic beverages or prescription medications are manufactured, transported, sold, or consumed. [Dkt. 29 at 23-24 (R. 23-24).] As to mental limitations, the ALJ determined that Jesus had moderate limitations in understanding, remembering, or applying information; interacting with others; and concentrating, persisting, or maintaining pace; the ALJ determined that Jesus had mild limitations with adapting or managing himself. [Id.]

         At step four, the ALJ then determined that Jesus could not perform his past work as a fork lift driver, tree trimmer, roofer, construction laborer, or small material handler. [Dkt. 29 at 27 (R. 27).] At step five, the ALJ determined that considering Jesus's age, education, work experience, and RFC, he could perform the job of dowel inspector. [Dkt. 29 at 28 (R. 28).] Accordingly, the ALJ determined that Jesus was not disabled.

         IV. Analysis

         Jesus asserts that substantial evidence fails to support the ALJ's determination that he was not disabled, but makes four general arguments. First, Jesus argues that the ALJ erred at Steps Two and Four of the sequential analysis by failing to identify and incorporate all of his medically determinable severe and nonsevere impairments. Secondly, he asserts that the ALJ failed to meet the burden at Step Five by not establishing the existence of a significant number of jobs in the general economy that Jesus could perform. Third, Jesus argues that the ALJ erred in assigning great weight to the opinion of medical expert, Dr. Wargel. Fourth, Jesus asserts that the ALJ erred by refusing to reopen prior applications. The Court will address each challenge in turn.

         A. Residual Functional Capacity

         First, the Plaintiff argues that the ALJ erred at Steps 2 and 4 of the five-step analysis by failing to consider all of his medically determinable impairments at Step 2 and by failing to include the limitations of any such impairments in his RFC at Step 4. [Dkt. 15 at 20.]

         In response, the Defendant claims that the ALJ created a logical bridge between the evidence and his conclusions. [Dkt. 21 at 12.] Defendant further argues that the Plaintiff did not provide any persuasive record evidence, such as a physician opinion, that the Plaintiff experienced any additional physical or mental functional limitations not already accommodated by the ALJ in his RFC findings. [Id.]

         Plaintiff notes in his reply that the Defendant does not refute either the contention that the ALJ failed to mention or discuss all of Plaintiff's medically determinable impairments or that the ALJ failed to discuss the impact of those impairments on the RFC. [Dkt. 27 at 4.] Plaintiff repeats his argument that the ALJ failed to consider all of his medically determinable impairments found in the record and in turn failed to provide accommodation for those impairments in the RFC. [Id.] Additionally, Plaintiff reiterates his argument that although the ALJ found Jesus's bowel and bladder dysfunction to be a nonsevere impairment in step 2, the ALJ did not provide any functional limitations in the RFC (or provide any analysis at all as to why no such limitations were included). [Id.]

         At Step 2 of the five-step analysis, the ALJ must evaluate whether the claimant in fact has an impairment[3] or combinations of impairment that is severe. 20 C.F.R. § 404.1520(a)(4)(ii). If there are no medically determinable severe impairments, the claimant is not found to be disabled. 20 C.F.R. § 404.1520(a)(4)(ii). The burden is on the claimant to prove that the impairment is severe. Zurawski v. Halter, 245 F.3d 881, 885-86 (7th Cir. 2001).

         When considering whether an impairment is severe, the ALJ is to consider whether the impairment significantly limits one's physical or mental ability to do basic work activities, such as walking, standing, sitting, pushing, pulling; use of judgment; or dealing with changes in a routine work setting. 20 C.F.R. § 404.1522. Impairments are found to be “not severe” when the medical evidence establishes only a slight abnormality which would have no more than a minimal effect on an individual's ability to work even if the individual's age, education, or work experience were specifically considered. Social Security Ruling 85-28 (S.S.A. 1985).

         If the ALJ finds that the claimant has one or more severe impairments, the ALJ will proceed to the remaining steps in the evaluation process, considering the “aggregate effect of [the] entire constellation of ailments-including those impairments that in isolation are not severe. Golembiewski v. Barnhart, 322 F.3d 912, 918 (7th Cir. 2003); see also 20 C.F.R. § 404.1523.

         In this case, Jesus claimed on his Fourth Application for benefits that post-traumatic stress disorder, neuropathy in both legs with resulting gait difficulties, and panic disorder, among others, were impairments that prevented him from working. [Dkt. 29-1 at 146 (R. 178).] He continually testified to those impairments throughout the course of his treatment, both with the consultative examiners and at the June 2016 and September 2016 hearings with the ALJ. [Dkts. 29-8 at 28-30 (R. 1478-480); 29-11 at 17-18 (R. 1943-944).]

         The Plaintiff identified fourteen medically determinable impairments with medical diagnoses throughout the record. [Dkt. 15 at 20.] A cursory review of the record confirmed the existence of those diagnosed impairments, none of which were mentioned by the ALJ. For instance, consultative examiner Dr. Greene concluded in 2014 that Jesus had post-traumatic stress disorder and panic disorder, both of which could be attributed to his September 2006 accident and had been steadily increasing in severity over the last eight years. [Dkt. 29-5 at 132 (R. 999).] Additionally, Jesus reported difficulties with neuropathy and gait disturbances, as early as February 2007 and as late as December 2014. [Dkts. 29-3 at 61-62 (R. 595-96); 29-6 at 53-55 (R. 1138-140).]

         In Blackburn v. Berryhill, 2018 WL 6204115 (S.D. Ind. Mar. 15, 2018), the Court concluded:

“Blackburn posits that her eyelid fasciculations (twitching) could cause problems with her near and far visual acuity. However, she failed to allege a visual impairment when making her benefits claim, did not alert the ALJ to the issue at her hearing, and failed to provide any evidence that the condition actually caused any visual limitations. Without any evidence that her eyelid fasciculations ...

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