Winn v. Commissioner of Social Security

Filing 29

MEMORANDUM AND OPINION affirming the final decision of the Commissioner of Social Security. The Clerk of Court is directed to enter judgment in favor of defendant. Signed by Magistrate Judge Clifford J. Proud on 8/5/2016. (klm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DAVID W. WINN,

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Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.

Civil No. 15-cv-204-CJP 1

MEMORANDUM and ORDER
PROUD, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), plaintiff David W. Winn is before
the Court, represented by counsel, seeking judicial review of the final agency
decision denying him Disability Insurance Benefits (DIB) and Supplemental
Security Income (SSI) benefits pursuant to 42 U.S.C. § 423.
Procedural History
Plaintiff applied for benefits on June 30, 2011, alleging disability
beginning on September 23, 2007. (Tr. 10). After holding an evidentiary
hearing, ALJ Patricia Supergan denied the application in a written decision
dated September 25, 2013. (Tr. 10-19).

The Appeals Council denied review,

and the decision of the ALJ became the final agency decision. (Tr. 1).
Administrative remedies have been exhausted and a timely complaint was filed
in this Court.

This case was referred to the undersigned for final disposition on consent of the parties,
pursuant to 28 U.S.C. §636(c). See, Doc. 10.
1

1

Issues Raised by Plaintiff
Plaintiff raises the following points:
1. The ALJ erred in her analysis at step three by applying listing 1.02 major
dysfunction of a joint instead of listing 1.06 fracture of the tibia.
2. The ALJ’s decision was not supported by substantial evidence.
Applicable Legal Standards
To qualify for DIB or SSI, a claimant must be disabled within the
meaning of the applicable statutes. 2 For these purposes, “disabled” means the
“inability 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 12 months.” 42 U.S.C. §423(d)(1)(A).
A “physical or mental impairment” is an impairment resulting from
anatomical,

physiological,

or

psychological

abnormalities

which

are

demonstrable by medically acceptable clinical and laboratory diagnostic
techniques.

42 U.S.C. §423(d)(3).

“Substantial gainful activity” is work

activity that involves doing significant physical or mental activities, and that is
done for pay or profit. 20 C.F.R. §§ 404.1572.
Social Security regulations set forth a sequential five-step inquiry to

2

The statutes and regulations pertaining to Disability Insurance Benefits (DIB) are found at 42
U.S.C. § 423, et seq., and 20 C.F.R. pt. 404. The statutes and regulations pertaining to SSI are
found at 42 U.S.C. §§ 1382 and 1382c, et seq., and 20 C.F.R. pt. 416. As is relevant to this
case, the DIB and SSI statutes are identical. Furthermore, 20 C.F.R. § 416.925 detailing
medical considerations relevant to an SSI claim, relies on 20 C.F.R. Pt. 404, Subpt. P, the DIB
regulations. Most citations herein are to the DIB regulations out of convenience.

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determine whether a claimant is disabled.

The Seventh Circuit Court of

Appeals has explained this process as follows:
The first step considers whether the applicant is engaging in
substantial gainful activity. The second step evaluates whether an
alleged physical or mental impairment is severe, medically
determinable, and meets a durational requirement. The third step
compares the impairment to a list of impairments that are
considered conclusively disabling. If the impairment meets or
equals one of the listed impairments, then the applicant is
considered disabled; if the impairment does not meet or equal a
listed impairment, then the evaluation continues. The fourth step
assesses an applicant's residual functional capacity (RFC) and
ability to engage in past relevant work. If an applicant can engage
in past relevant work, he is not disabled. The fifth step assesses
the applicant's RFC, as well as his age, education, and work
experience to determine whether the applicant can engage in other
work. If the applicant can engage in other work, he is not disabled.
Weatherbee v. Astrue, 649 F.3d 565, 568-569 (7th Cir. 2011).
Stated another way, it must be determined: (1) whether the claimant is
presently unemployed; (2) whether the claimant has an impairment or
combination of impairments that is serious; (3) whether the impairments meet
or equal one of the listed impairments acknowledged to be conclusively
disabling; (4) whether the claimant can perform past relevant work; and (5)
whether the claimant is capable of performing any work within the economy,
given his or her age, education and work experience. 20 C.F.R. §§ 404.1520;
Simila v. Astrue, 573 F.3d 503, 512-513 (7th Cir. 2009); Schroeter v.
Sullivan, 977 F.2d 391, 393 (7th Cir. 1992).
If the answer at steps one and two is “yes,” the claimant will
automatically be found disabled if he or she suffers from a listed impairment,
determined at step three. If the claimant does not have a listed impairment at
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step three, and cannot perform his or her past work (step four), the burden
shifts to the Commissioner at step five to show that the claimant can perform
some other job. Rhoderick v. Heckler, 737 F.2d 714, 715 (7th Cir. 1984).
See also, Zurawski v. Halter, 245 F.3d 881, 886 (7th Cir. 2001) (Under the
five-step evaluation, an “affirmative answer leads either to the next step, or, on
Steps 3 and 5, to a finding that the claimant is disabled…. If a claimant
reaches step 5, the burden shifts to the ALJ to establish that the claimant is
capable of performing work in the national economy.”).
This Court reviews the Commissioner’s decision to ensure that the
decision is supported by substantial evidence and that no mistakes of law were
made. It is important to recognize that the scope of review is limited. “The
findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive. . . .” 42 U.S.C. § 405(g). Thus, this
Court must determine not whether plaintiff was, in fact, disabled at the
relevant time, but whether the ALJ’s findings were supported by substantial
evidence and whether any errors of law were made. See, Books v. Chater, 91
F.3d 972, 977-78 (7th Cir. 1996) (citing Diaz v. Chater, 55 F.3d 300, 306
(7th Cir. 1995)).
The Supreme Court has defined substantial evidence as “such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). In reviewing
for “substantial evidence,” the entire administrative record is taken into
consideration, but this Court does not reweigh evidence, resolve conflicts,
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decide questions of credibility, or substitute its own judgment for that of the
ALJ.

Brewer v. Chater, 103 F.3d 1384, 1390 (7th Cir. 1997).

However,

while judicial review is deferential, it is not abject; this Court does not act as a
rubber stamp for the Commissioner. See, Parker v. Astrue, 597 F.3d 920,
921 (7th Cir. 2010), and cases cited therein.
The Decision of the ALJ
ALJ Supergan followed the five-step analytical framework described
above. She determined plaintiff had not been engaged in substantial gainful
activity since his alleged onset date. She found plaintiff had severe
impairments of status post fracture of left distal tibia and obesity. (Tr. 12). The
ALJ determined these impairments do not meet or equal a listed impairment.
The ALJ found plaintiff had the residual functional capacity to perform
work at the sedentary level, with physical and mental limitations. (Tr. 14).
Based on the testimony of a vocational expert, the ALJ found that plaintiff was
not able to perform his past work. However, he was not disabled because she
was able to do other work that exists in significant numbers in the regional and
national economies. (Tr. 18-19).
The Evidentiary Record
The Court has reviewed and considered the entire evidentiary record in
formulating this Memorandum and Order. The following summary of the record
is directed to the points raised by plaintiff.
1. Agency Forms

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Plaintiff was born on November 26, 1968 and was thirty-eight years old
on his alleged onset date. He was insured for DIB through September 30,
2011. 3 (Tr. 156). He was six feet one inch tall and weighed two hundred and
thirty pounds. (Tr. 168). He completed his GED in 2001 but had no further
training or schooling. (Tr. 169). Plaintiff worked for the fifteen years prior to his
alleged onset date in the roofing and carpentry business. (Tr. 160). Plaintiff
claimed his migraine headaches, arthritis, a broken left leg from a car accident
that created chronic pain and muscular atrophy, depression, and insomnia
limited his ability to work. (Tr. 168). He took aspirin for heart health,
Citalopram for depression and anxiety, ibuprofen and Vicodin for pain relief,
Metoprolol for high blood pressure, Omeprazole for GERD, and Trazadone for
insomnia. (Tr. 204).
In August 2011, plaintiff completed a function report. (Tr. 183-91). He
lived in a house with his wife, mother, and son. (Tr. 183). He stated that an
injury to his leg kept him from working due to pain and fear that his leg would
break again. Plaintiff claimed the injury never properly healed and was
frequently infected. (Tr. 183). Plaintiff stated that for fun he watched television
and spent time with his family. Occasionally his friends visited him and he
sometimes attended church. (Tr. 187).
Plaintiff needed help putting on his pants, washing his feet in the
shower, and urinating at night. (Tr. 184). He occasionally made himself a
sandwich but his wife did most of the cooking because he could not stand for
The date last insured is relevant to the claim for DIB, but not the claim for SSI. See, 42 U.S.C. §§ 423(c) &
1382(a).

3

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long periods of time. He could fold the laundry for fifteen to twenty minutes at
a time if his wife brought it to him. (Tr. 185). He was able to ride in a car but
did not have a license and did not go out of the house alone. He did not feel he
could pay bills or handle a savings account, but he could count change and
use a checkbook. (Tr. 186).
Plaintiff claimed that the pain from his injuries caused him to have
difficulty lifting, squatting, bending, standing, reaching, walking, kneeling,
climbing stairs, completing tasks, and concentrating. He felt he could walk a
few hundred feet before needing to stop and rest. (Tr. 188). He followed written
and spoken instructions very well but had difficulty handling stress and
changes in his routine. (Tr. 188-89). Depending on plaintiff’s level of pain, he
walked with a boot, crutches, or a cane. (Tr. 189).
Plaintiff’s mother also completed a function report in August 2011. (Tr.
175-82). She stated that plaintiff could not climb stairs, lift heavy materials, or
stand for long periods of time. (Tr. 175). Plaintiff did not perform many
household chores and plaintiff’s mother or wife prepared most meals. (Tr. 177).
She felt plaintiff’s leg injury caused him to have difficulty lifting, squatting,
standing, walking, kneeling, and climbing stairs. (Tr. 180). He could follow
written and spoken instructions but he did not handle stress well and had
developed an anger problem due to his pain. Additionally, she stated plaintiff
walked with crutches, a cane, or a brace depending on his pain level. (Tr. 181).
2. Evidentiary Hearing

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Plaintiff was represented by counsel at the evidentiary hearing on
September 19, 2013. (Tr. 26-47). He had been married for three and one half
years and had three children. He stated that he was six feet one inch tall and
weighed two hundred and forty pounds. (Tr. 31). Plaintiff testified that the last
time he worked was in August of 2007 when he quit due to a disagreement
with his company. He was in a car accident on September 23, 2007 that made
him unable to work. (Tr. 29).
Plaintiff testified that the pain in his leg from the accident made him
unable to work because he had always been a carpenter. He could no longer
climb ladders, walk more than fifty feet, or carry anything heavy. (Tr. 30). He
stated that he last tried to carry groceries and had too much pain in his lower
left leg, ankle, and foot. (Tr. 31). He could occasionally help mow the lawn on
the riding lawn mower but he stopped cooking and cleaning after his accident.
(Tr. 32). Plaintiff did not drive because he lost his license in 1992 and never
obtained another. (Tr. 33). He did not have a computer and never used one. (Tr.
35). His wife made his meals and made sure his son was ready for school every
morning. (Tr. 37).
Plaintiff smoked three quarters of a pack of cigarettes daily but he rarely
drank alcohol. (Tr. 33). He stated that he used marijuana several months prior
to the hearing and he also used cocaine seven years before the hearing. (Tr.
34). At the time of the hearing, he was taking Metoprolol for his blood pressure,
Vicodin for pain in his lower left leg, Trazodone for a sleep aid, Omeprazole for

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heart burn, and Lamictal. (Tr. 38). He wore a boot to support his lower left leg,
and occasionally used a crutch or a cane for support as well. (Tr. 38-39).
Plaintiff testified that the pain in his leg was, on average, an eight out of
ten. (Tr. 40). He stated that he had difficulties getting in and out of the bath
tub, bending over, and washing his leg. His wife had to wash his leg, back, and
hair, as well as help him get dressed. (Tr. 39). He spent most of his day in a
recliner because he needed to elevate his leg every thirty minutes. (Tr. 39-40).
He also testified that he had migraine headaches five to seven times per month.
His headaches made him have to close the blinds in a room and lie down. (Tr.
40).
A vocational expert (VE) also testified. (Tr. 41-46). The ALJ asked the VE
a hypothetical question which comported with the ultimate RFC assessment,
that is, a person of plaintiff’s age and work history who was able to perform
sedentary work, limited to occasional ramp climbing, stair climbing, balancing,
and stooping. He could never climb ladders, ropes, or scaffolds and could never
kneel, crouch, or crawl. Additionally, the person could not work around
hazards such as moving machinery or unprotected heights. The individual
could perform unskilled work tasks that could be learned by demonstration in
thirty days or less and would be of a simple, repetitive, and routine nature. (Tr.
43-45).
The VE testified that the person could not perform any of plaintiff’s
previous work. However, the person could perform jobs that exist in significant
numbers in the national economy. Examples of such jobs are hand sorter,
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assembler, and packer. (Tr. 43). The VE testified that if the person had three
unscheduled absences from work a month the person would not be able to
maintain employment. (Tr. 45).
3. Medical Evidence
Plaintiff’s medical records begin on his alleged onset date of September
23, 2007. (Tr. 221, 309). Plaintiff presented at Union County Hospital with a
fracture in his left tibia and fibula after crashing his car during a police chase.
(Tr. 309-15). He was transferred to St. Francis Medical Center for irrigation,
debridement 4, open reduction, and internal fixation 5 of the wound. (Tr. 221227).
In October 2007, plaintiff began seeing Dr. Rickey Lents to follow-up on
his leg fracture. (Tr. 379). Thereafter, plaintiff saw Dr. Lents almost every two
weeks until the end of January 2008. (Tr. 379-99). He was doing well and the
x-rays indicated his fracture was healing. (Tr. 379-91). Plaintiff was initially
given a prescription for Lortab that was quickly changed to Vicodin. (Tr. 37985). Plaintiff was given several refills for Vicodin but Dr. Lents wanted to reduce
plaintiff’s usage as soon as possible. (Tr. 384). Dr. Lents eventually denied
plaintiff’s requests for Vicodin and Lortab but gave him a prescription for
Ultram. (Tr. 389, 391). Plaintiff complained regularly of pain but the results of
Debridement is “the removal of unhealthy tissue from a wound to promote healing.”
http://www.mountsinai.org/patient-care/health-library/treatments-and-procedures/debridement-of-awound-infection-or-burn
5 During an open reduction surgery, “orthopedic surgeons reposition your bone pieces during surgery, to
put them back into their proper alignment.” Internal fixation refers to “to the method of physically
reconnecting the bones. This might involve special screws, plates, rods, wires, or nails that the surgeon
places inside the bones to fix them in the correct place.” http://www.saintlukeshealthsystem.org/healthlibrary/tibiafibula-fracture-open-reduction-and-internal-fixation
4

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his x-rays continued to be positive through January 2008. Dr. Lents referred
plaintiff to pain specialists Drs. Burns and Bowen to help him control his pain.
(Tr. 396). Dr. Burns saw plaintiff that month and indicated he would only
prescribe an opioid after plaintiff had a urine screen and all other options were
explored. (Tr. 389-99).
Plaintiff presented at St. Francis Medical Center again in November 2008
but left prior to triage. (Tr. 220). A few days later plaintiff reported to Dr. Lents
stating that his leg was feeling unstable. X-rays displayed a nonunion of the
bones in plaintiff’s leg as well as a broken plate. (Tr. 401). Plaintiff had an open
reduction internal fixation (ORIF) the next day. 6 (Tr. 264). He was given a bone
stimulator, a prescription for Vicodin, and told to avoid all weight bearing on
his leg after the surgery. (Tr. 403). When plaintiff returned to Dr. Lents in
December 2008 he had been bearing weight and Dr. Lents cautioned him
against placing any weight on his leg until it was fully healed. (Tr. 406).
Plaintiff returned to Dr. Lents in January 2009 and while he had been walking
on his leg his x-rays showed his bone graft was still in position and was healing
without trouble. Plaintiff was once again cautioned not to place any weight on
his leg. (Tr. 410). Dr. Lents stated he did not want to refill plaintiff’s Vicodin
prescription any longer. (Tr. 411).
In March 2009, plaintiff presented to Dr. Lents with another broken plate
and a non-union of the bones. (Tr. 422). Plaintiff had a third ORIF thereafter.
“An open reduction and internal fixation (ORIF) is a type of surgery used to fix broken bones. This is a
two-part surgery. First, the broken bone is reduced or put back into place. Next, an internal fixation device
is placed on the bone.” http://www.mountsinai.org/patient-care/health-library/treatments-andprocedures/open-reduction-and-internal-fixation-surgery
6

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(Tr. 422, 425). In June 2009, plaintiff went to Southeast Missouri Hospital’s
emergency room with an infection at the site of his bone graft. (Tr. 244-50.
266). His wound was cultured and it was determined plaintiff had a severe
bone infection at the site of his surgeries. (Tr. 246). He was given a VaccumAssisted Closure (VAC) for his wound. 7 (Tr. 246, 439). Plaintiff saw several
doctors for treatment of his infected wound and in October 2009 the infection
had not improved. (Tr. 254-60, 261, 445-60).
Notes from Southeast Missouri Hospital from December 2009 indicate
plaintiff was “angry and manipulative throughout the course of his treatment”
and the treating physician felt his “demeanor was suspicious for secondary
gain, i.e., narcotic seeking and/or establishment of disability for Social
Security.” (Tr. 267-68). Plaintiff had not adhered to recommended treatment
regimens and missed several appointments so the clinic at the hospital refused
to continue its involvement in plaintiff’s treatment. (Tr. 267).
Plaintiff was treated by Dr. Lents in December 2009 and Dr. Lents
indicated plaintiff was doing well and his wound was healing well. (Tr. 469). In
early 2010 plaintiff had occasional swelling but his fracture and wound site
were doing well. (Tr. 471). However, in September 2010 plaintiff had more
swelling and Dr. Lents felt his infection may have reoccurred. (Tr. 472). In
November 2010, Dr. Lents stated the leg may need to be amputated since other
treatment options had failed. (Tr. 473). There is a gap in treatment records but
“The V.A.C. treatment applies localized negative pressure to draw the edges of the wound to the center
of the site. The negative pressure is applied to a special dressing positioned within the wound cavity or
over a flap or graft.” http://www.wakehealth.edu/Plastic-Surgery/Wound-Care/Vacuum-AssistedClosure.htm
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plaintiff’s final records regarding his leg are from July 2013 at Cairo Diagnostic
Center. The doctor made somewhat contradictory findings, stating that on
examination the left distal tibular fracture appeared to have healed properly
and the hardware appeared stable, but also that there was malunion of the
fracture of the left distal tibia and a component or chronic osteomyelitis could
be excluded. (Tr. 554).
4. Consultative Examinations
In September 2011, plaintiff had a physical consultative examination
with state agency physician Dr. Adrian Feinerman. (Tr. 477-85). Plaintiff was
wearing a brace on his lower left leg because he was afraid the fracture would
break again. He stated the brace decreased his pain as well. Plaintiff stated
that he was depressed but it did not interfere with his work. (Tr. 477). Plaintiff
felt he could walk for one block, stand for ten minutes, sit for one hour, and
perform fine and gross manipulation normally. He told Dr. Feinerman that
squatting or bending increased his pain to his left leg. (Tr. 478).
On exam, plaintiff had mild difficulty getting on or off the exam table;
moderate difficulty tandem walking, squatting, and arising; and plaintiff was
unable to stand on his toes or stand on his heels. Dr. Feinerman’s diagnostic
impressions were a fractured distal left tibia-fibula with open reduction and
internal fixation. (Tr. 481). Plaintiff had a decreased range of motion in his left
ankle but had an otherwise normal examination and plaintiff was able to
ambulate effectively. (Tr. 480-84).

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Plaintiff also had a mental consultative examination with Dr. David
Warshauer in September 2011. (Tr. 488-90). Plaintiff told Dr. Warshauer he
lost his license in 1992 for drag racing and he had been arrested three or four
times for driving on a revoked license thereafter. He also had two DUIs and
spent “a few weeks” in jail. (Tr. 488-89). Plaintiff stated that in 2006 he
completed a twenty-eight day program for alcohol and a crack cocaine
addiction. Plaintiff was never hospitalized for any psychiatric issues and had
never received outpatient mental health treatment. He stated he could not
afford medication for depression because he already owed over $400,000 in
medical bills. (Tr. 489). Plaintiff was oriented in four spheres and answered
questions in a relevant a coherent manner however his countenance was that
of an angry person. Dr. Warshauer’s diagnoses were adjustment disorder with
depressed mood, possible personality disorder, and a GAF score of 50. 8 (Tr.
490).
5. RFC Assessment
State agency physician C.A. Gotway, M.D. assessed plaintiff’s physical
RFC in December 2011. (Tr. 510-16). He reviewed medical records but did not
examine plaintiff. He believed plaintiff could occasionally lift ten pounds, stand
or walk for at least two hours in an eight hour workday, and sit for about six
hours in an eight hour workday. (Tr. 510). He indicated plaintiff could
8

The GAF is determined on a scale of 1 to 100 and reflects the clinician’s judgment of an individual’s
overall level of functioning, taking into consideration psychological, social, and occupational functioning.
Impairment in functioning due to physical or environmental limitations are not considered. American
Psychiatric Association, Diagnostic & Statistical Manual of Mental Disorders - Fourth Edition, Text Revision
32-33 (4th ed. 2000); Although the American Psychiatric Association recently discontinued use of the GAF
metric, it was still in use during the period plaintiff’s examinations occurred.

14

occasionally crouch and climb ramps or stairs but could never climb ladders,
ropes, or scaffolds. (Tr. 511). Dr. Gotway stated plaintiff should avoid
concentrated exposure to hazards like machinery and heights. (Tr. 513). Dr.
Gotway explained his reasoning in a synopsis of plaintiff’s medical records that
showed plaintiff had incomplete healing but was able to ambulate effectively
without assistance and had a normal gait. (Tr. 516).
These findings were reaffirmed by Dr. Rachel Gotanco of Disability
Determination Service (DDS) in April 2012. (Tr. 517-19). Dr. Gotanco did not
examine plaintiff but reviewed the records and found plaintiff did not meet
listing 1.06 fracture of the femur, tibia, pelvis, or one or more of the tarsal
bones. (Tr. 517-19). In May 2012, Dr. George Andrews of DDS also reaffirmed
Dr. Gotway’s opinions. (Tr. 520-22).
Analysis
Plaintiff’s first and primary argument is that the ALJ erred at step three
of her analysis by referring to listing 1.02 instead of listing 1.06 and by failing
to provide more than a perfunctory analysis. The Court will first look at what is
required from an ALJ at step three of the five-step sequential evaluation
process.
As an initial matter, the Seventh Circuit has stated that “[a]lthough an
ALJ should provide a step-three analysis, a claimant first has the burden to
present medical findings that match or equal in severity all the criteria
specified by a listing.” Knox v. Astrue, 327 F. App'x 652, 655 (7th Cir.
2009). Plaintiff claims that he meets listing 1.06 which is entitled “Fracture of
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the femur, tibia, pelvis, or more of the tarsal bones.” In order to meet the listing
the claimant must have both: “A. Solid union not evident on appropriate
medically acceptable imaging and not clinically solid; and B. Inability to
ambulate effectively, as defined in 1.00B2b, and return to effective ambulation
did not occur or is not expected to occur within 12 months of onset.” 20 C.F.R.
Pt. 404, Subpt. P., App. 1, §1.06. 1.00B2b states that
(1) Inability to ambulate effectively means an extreme limitation of
the ability to walk; i.e., an impairment(s) that interferes very
seriously with the individual's ability to independently initiate,
sustain, or complete activities. Ineffective ambulation is defined
generally as having insufficient lower extremity functioning (see
1.00J) to permit independent ambulation without the use of a
hand-held assistive device(s) that limits the functioning of both
upper extremities. (Listing 1.05C is an exception to this general
definition because the individual has the use of only one upper
extremity due to amputation of a hand.)
(2) To ambulate effectively, individuals must be capable of
sustaining a reasonable walking pace over a sufficient distance to
be able to carry out activities of daily living. . . Therefore, examples
of ineffective ambulation include, but are not limited to, the
inability to walk without the use of a walker, two crutches or two
canes, the inability to walk a block at a reasonable pace on rough
or uneven surfaces, the inability to use standard public
transportation, the inability to carry out routine ambulatory
activities, such as shopping and banking, and the inability to climb
a few steps at a reasonable pace with the use of a single hand rail.
...
Pt. 404, Subpt. P., App. 1, §1.00B2b(1)&(2).
Plaintiff claims that he meets the requirements of 1.06 by referencing
several medical records that indicate he had non-union of his fracture. Plaintiff
references a record that states he had an asymmetric gait and another record
that states he should not bear weight on his leg. (Tr. 398, 403). Plaintiff also
cites his statements that he needed a crutch or cane, elevated his leg, wore a
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boot, and displayed a limp consultative examination. Plaintiff notes that Dr.
Feinerman indicated he had effective ambulation without an assistive device,
but he also states that the doctor indicated he had decreased range of motion,
deformity in his lower extremity, an inability to stand on toes or heels,
moderate difficulty in tandem walking and squatting and arising, and mild
difficulty getting on and off the exam table. (Tr. 481).
While the evidence demonstrates that plaintiff meets part A. of listing
1.06, his ability to meet part B. is not as clear. While Dr. Feinerman did find
plaintiff had some limitations, he did not feel they affected plaintiff’s ability to
ambulate effectively. As the Commissioner notes, moderate difficulties with
tandem walking and the inability to stand on heels and toes does not
automatically indicate plaintiff could not ambulate effectively without an
assistive device. No doctors on record indicated plaintiff had “insufficient lower
extremity functioning. . . to permit independent ambulation without the use of
a hand-held assistive device(s) that limits the functioning of both upper
extremities.” Pt. 404, Subpt. P., App. 1, §1.00B2b(1). Plaintiff testified that he
occasionally used a cane or a crutch, but never stated he used two. Plaintiff
indicated he frequently walked with a boot, and presented with the boot several
times on record, but the boot has no hand-held assistive device portion that
limits plaintiff’s usage of both upper extremities. Plaintiff does not appear to
meet listing 1.06 based on the evidence provided on record.
However, giving plaintiff the benefit of the doubt, the Court will look to
the ALJ’s analysis at step three to determine if her analysis was sufficient. As
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stated above, the Seventh Circuit has outlined the five-step sequential
evaluation process in Weatherbee v. Astrue stating,
The first step considers whether the applicant is engaging in
substantial gainful activity. The second step evaluates whether an
alleged physical or mental impairment is severe, medically
determinable, and meets a durational requirement. The third step
compares the impairment to a list of impairments that are
considered conclusively disabling. If the impairment meets or
equals one of the listed impairments, then the applicant is
considered disabled; if the impairment does not meet or equal a
listed impairment, then the evaluation continues. . .
649 F.3d at 568-569 (emphasis added).
The Seventh Circuit has held that an ALJ has a duty to “discuss the listing by
name and offer more than a perfunctory analysis of the listing.” Barnett v.
Barnhart, 381 F.3d 664, 668, (7th Cir. 2004). At step three, ALJ Supergan
stated that,
Although the claimant has severe impairments, they do not meet
the criteria of any listed impairments described in Appendix 1 of
the Regulations (20 CFR, Subpart P, Appendix 1). In reaching this
conclusion, I considered all of the listings found in 20 CFR Part
404 Subpart P, Appendix 1, paying particular attention to listing
1.02. However, the medical evidence does not document listinglevel severity and no acceptable medical source has mentioned
findings equivalent in severity to the criteria of any listed
impairment, individually or in combination.
(Tr.14).
Plaintiff states that because the ALJ references listing 1.02 and does not
mention listing 1.06 the ALJ’s analysis is insufficient. Listing 1.02 is entitled
“Major dysfunction of a joint(s)(due to any cause)” and is clearly not as relevant
to the case at hand as listing 1.06. Plaintiff argues that listing 1.06 had to be
applied to this case due to his tibia fracture because the ALJ had a duty to
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“discuss the listing by name and offer more than a perfunctory analysis of the
listing.” Barnett v. Barnhart, 381 F.3d 664, 668, (7th Cir. 2004). The ALJ
should have at least mentioned listing 1.06 and her failure to do so is error.
However, as plaintiff correctly notes, an ALJ’s failure to explicitly mention a
relevant listing does not require reversal unless the failure to mention the
listing is combined with a perfunctory analysis. Ibid. at 669; Knox, 327
Fed.Appx. at 655.
Plaintiff states that the ALJ’s discussion at step 3 must be seen as
perfunctory because it was only three sentences. He contends that she failed to
state what medical evidence she considered or why she did not feel his x-rays
supported listing 1.06. This is also where he provides a list of records from
several doctors’ appointments and x-rays that he claims confirm he meets the
listing for 1.06.
The Seventh Circuit has recently clarified what makes an analysis
perfunctory in Curvin v. Colvin. 778 F.3d 645 (7th Cir. 2015). In Curvin, the
Court stated that if an ALJ adequately discusses the appropriate issues within
the RFC assessment there is no error as it would be redundant to repeat the
discussion elsewhere in the opinion. Ibid. at 650. Therefore, in determining if
the ALJ’s analysis was sufficient, this Court must look to the ALJ’s entire
opinion, not just the three sentences plaintiff focuses on, to establish whether
the appropriate explanation was provided.
Here, ALJ Supergan’s discussion within her RFC assessment makes it
evident she considered the record as a whole and formed a logical bridge to her
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determination that plaintiff did not meet a listing. The ALJ provided a thorough
synopsis of plaintiff’s medical history regarding his leg injury. She discussed
the initial injury, the initial surgery that was performed, all subsequent
imaging regarding the leg, the multiple surgeries to attempt to heal the bone,
the issues involved with his resulting wound, the doctors’ appointments
indicating plaintiff still had pain, and plaintiff’s occasional usage of assistive
devices in ambulation. (Tr. 15-17). She also discussed how plaintiff was noncompliant with orders to stay off of his leg, that he has been weight-bearing
since December 2009, that he was able to ambulate effectively without an
assistive device on examination, that his treatment was limited to pain
medications for several years, and that his doctors indicated his usage of pain
medication was indicative of an addiction on several occasions. (Tr. 15-18).
While the ALJ did not mention listing 1.06, the state agency reviewing
physician Dr. Gotanco referenced the listing specifically and indicated plaintiff
did not meet the requirements. (Tr. 517-19). Additionally, Dr. Gotway stated
that plaintiff had incomplete healing in his leg but was able to ambulate
effectively without assistance and had a normal gait. (Tr. 516). The ALJ gave
these opinions great weight because they were “supported by the results of the
consultative examination showing normal gait without an assistive device, no
treatment other than pain medications since 2010, inconsistent treatment
prior to that and activities such as fishing and going out to dinner.” (Tr. 17). It
is proper for the ALJ to rely upon the assessment of state agency consultants
such as Dr. Gotway and Dr. Gotanco. Schmidt v. Barnhart, 395 F.3d 737,
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745 (7th Cir. 2005); Cass v. Shalala, 8 F.3d 552, 555 (7th Cir. 1993). “State
agency medical and psychological consultants are highly qualified physicians
and psychologists who are experts in the evaluation of the medical issues in
disability claims under the Act.” Social Security Ruling 96-6p, at 2. Here, the
opinions of Drs. Gotway and Gotanco provide sufficient support for ALJ
Supergan’s RFC assessment and the ALJ appropriately explained why she
determined plaintiff did not meet a listing.
Plaintiff’s final argument is that the ALJ’s decision was not supported by
substantial evidence. He states that the ALJ mischaracterized or ignored
evidence that plaintiff’s leg was not properly healed. He primarily focuses on
the ALJ’s statement that “the claimant had issues with nonunion, in part due
to his lack of compliance, but even his most recent note shows he is healed.”
(Tr. 18). Plaintiff states that this is a mischaracterization and that it “grossly
understates” the issues he has had and over what time period. He also claims
that the ALJ cherry-picks evidence and only mentions notes that are favorable
to her opinion. This is false.
The ALJ did state that plaintiff’s most recent note shows that he is
healed because his most recent note literally states the “fracture appears to
have healed properly.” (Tr. 554). While the note also indicates a malunion, the
ALJ acknowledges this elsewhere in her opinion. (Tr. 16). Plaintiff is correct in
noting that the Seventh Circuit has “repeatedly held that although an ALJ does
not need to discuss every piece of evidence in the record, the ALJ may not
analyze only the evidence supporting her ultimate conclusion while ignoring
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the evidence that undermines it.” Moore v. Colvin, 743 F.3d 1118, 1123 (7th
Cir. 2014).
However,

the

ALJ

here

fully

discussed

plaintiff’s

four

years

of

documented issues with malunion of the bones, the surgeries he underwent,
and the other treatment that was recommended. (Tr. 15-18). Plaintiff takes
issue with the ALJ’s reference to notes indicating plaintiff was healing, but
plaintiff does have several notes on record that show his fracture was
improving. (Ex., Tr. 379-91, 396, 410, 469, 471). While they were frequently
followed by notes showing the malunion reoccurred, the ALJ stated that as
well. (Tr. 15-18). The ALJ is allowed to discuss evidence that is in opposition to
plaintiff as long as she evaluates the record as a whole and forms a logical
bridge to her conclusions. Simila v. Astrue, 573 F.3d 503, 516 (7th Cir.
2009).
Additionally, the Court notes that plaintiff’s non-compliance to doctor’s
orders regarding his treatment damages his case. The ALJ noted that plaintiff
was consistently bearing weight on his leg when Dr. Lents indicated bearing
weight would prevent his fracture from healing. (Tr. 403, 406, 410 ). “20 C.F.R.
§ 404.1530(a) provides that ‘[i]n order to get benefits, you must follow
treatment prescribed by your physician if this treatment can restore your
ability to work.’ The failure to do so without good reason will result in a denial
of benefits. 20 C.F.R. § 404.1530(b).” Shramek v. Apfel, 226 F.3d 809, 812
(7th Cir. 2000).

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While plaintiff’s doctors did not indicate that his compliance would have
necessarily led to being able to work, Dr. Lents did indicate plaintiff’s failure to
comply was causing his leg to not heal. (Tr. 403, 406, 410). The malunion of
plaintiff’s tibia bone is the primary reason plaintiff claims he cannot work. It
logically follows that if plaintiff’s behavior was contributing to the malunion,
his noncompliance was contributing to, what he considered, his inability to
work.
In sum, none of plaintiff’s arguments are persuasive. Even if reasonable
minds could differ as to whether plaintiff was disabled at the relevant time, the
ALJ’s decision must be affirmed if it is supported by substantial evidence, and
the Court cannot substitute its judgment for that of the ALJ in reviewing for
substantial evidence. Shideler v. Astrue, 688 F.3d 306, 310 (7th Cir. 2012);
Elder, 529 F.3d 413. ALJ Supergan’s decision is supported by substantial
evidence, and so must be affirmed.
Conclusion
After careful review of the record as a whole, the Court is convinced that
ALJ Supergan committed no errors of law, and that her findings are supported
by substantial evidence. Accordingly, the final decision of the Commissioner of
Social Security denying David Winn’s application for disability benefits is
AFFIRMED.

The clerk of court shall enter judgment in favor of defendant.
IT IS SO ORDRED.
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DATE: August 5, 2016.

s/ Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE

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