United States District Court, S.D. Indiana, Indianapolis Division
L. Pryor, United States Magistrate Judge.
Jesus F. 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
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.
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.
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.”
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).]
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.
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.
Standard of Review
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
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).
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).
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.
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.
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).]
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.]
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, 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.]
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
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.
Residual Functional Capacity
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.]
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.]
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.]
2 of the five-step analysis, the ALJ must evaluate whether
the claimant in fact has an impairment 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).
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).
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.
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).]
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).]
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 ...