Miller v. Commissioner of Social Security

Filing 19

OPINION AND ORDER: The decision of the Commissioner is REVERSED, and the case is REMANDED to the Commissioner for further proceedings in accordance with this Opinion and Order. The Clerk is directed to enter a judgment in favor of Miller and against the Commissioner. Signed by Magistrate Judge Susan L Collins on 5/22/2018. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
BRENT MILLER,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY, sued as Nancy A. Berryhill,1
Acting Commissioner of Social Security,
Defendant.

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CAUSE NO. 1:16-cv-00122-SLC

OPINION AND ORDER
Plaintiff Brent Miller appeals to the district court from a final decision of the
Commissioner of Social Security (“Commissioner”) denying his application under the Social
Security Act (the “Act”) for disability insurance benefits (“DIB”).2 (DE 1). For the following
reasons, the Commissioner’s decision will be REVERSED, and the case will be REMANDED to
the Commissioner for further proceedings in accordance with this Opinion and Order.
I. FACTUAL AND PROCEDURAL HISTORY
Miller applied for DIB in February 2013, alleging disability as of December 28, 2012.
(DE 9 Administrative Record (“AR”) 152-153). The Commissioner denied Miller’s application
initially and upon reconsideration. (AR 96-99, 101-07). After a timely request, a hearing was
held on May 22, 2014, before Administrative Law Judge William D. Pierson (the “ALJ”), at
which Miller, who was represented by George Merkle, a non-attorney representative; and a
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Nancy A. Berryhill is now the Acting Commissioner of Social Security, see Casey v. Berryhill, 853 F.3d
322 (7th Cir. 2017), and thus, she is automatically substituted for Carolyn W. Colvin in this case, see Fed. R. Civ. P.
25(d).
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All parties have consented to the Magistrate Judge. (DE 12); see 28 U.S.C. § 636(c).

vocational expert, Marie Kieffer (the “VE”), testified. (AR 36-74). On August 4, 2014, the ALJ
rendered an unfavorable decision to Miller, concluding that he was not disabled because he
could perform a significant number of unskilled, sedentary jobs in the economy despite the
limitations caused by his impairments. (AR 22-30). Miller requested review of the decision by
the Appeals Council and submitted additional evidence with his request, but the Appeals Council
denied review (AR 1-6, 15), at which point the ALJ’s decision became the final decision of the
Commissioner. See 20 C.F.R. § 404.981.
Miller filed a complaint with this Court on April 11, 2016, seeking relief from the
Commissioner’s decision. (DE 1). Miller advances five arguments in this appeal: (1) that the
ALJ erred at step three by failing to obtain an updated medical opinion as to whether he met or
equaled a listing; (2) that the residual functional capacity (“RFC”) assigned by the ALJ is not
supported by substantial evidence; (3) that the ALJ improperly discounted the credibility of
Miller’s symptom testimony; (4) that the VE’s testimony was unreliable; and (5) that the
Appeals Council erred by failing to remand the case to the ALJ due to new and material
evidence. (DE 15 at 13-24).
At the time of the ALJ’s decision, Miller was 46 years old (AR 30, 152) and had a high
school degree, had attended four or more years of college, and had obtained an associate’s
degree in applied sciences, a certification in welding and sheet metal, and a journeyman’s license
(AR 184). Miller had worked as a metal fabricator in the tool and die business from October
1985 to December 2012. (AR 175, 184). In his DIB application, Miller alleged disability due to
osteoarthritis; lumbosacral degenerative disc disease and fusion, bilateral hip replacements, a
Factor V Leiden clotting disorder, hypertension, and hypercholesterolemia. (AR 183).

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II. STANDARD OF REVIEW
Section 405(g) of the Act grants this Court “the power to enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or reversing the decision of the
[Commissioner], with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). The
Court’s task is limited to determining whether the ALJ’s factual findings are supported by
substantial evidence, which means “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005)
(citation omitted). The decision will be reversed only if it is not supported by substantial
evidence or if the ALJ applied an erroneous legal standard. Clifford v. Apfel, 227 F.3d 863, 869
(7th Cir. 2000) (citation omitted).
To determine if substantial evidence exists, the Court reviews the entire administrative
record but does not reweigh the evidence, resolve conflicts, decide questions of credibility, or
substitute its judgment for the Commissioner’s. Id. Rather, if the findings of the Commissioner
are supported by substantial evidence, they are conclusive. Jens v. Barnhart, 347 F.3d 209, 212
(7th Cir. 2003) (citation omitted). “In other words, so long as, in light of all the evidence,
reasonable minds could differ concerning whether [the claimant] is disabled, we must affirm the
ALJ’s decision denying benefits.” Books v. Chater, 91 F.3d 972, 978 (7th Cir. 1996).
III. ANALYSIS
A. The Law
Under the Act, a claimant is entitled to DIB if he establishes an “inability to engage in
any substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to . . . last for a continuous period of not less than 12

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months.” 42 U.S.C. §§ 416(i)(1), 423(d)(1)(A). A physical or mental impairment is “an
impairment that results from anatomical, physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C.
§ 423(d)(3).
The Commissioner evaluates disability claims pursuant to a five-step evaluation process,
requiring consideration of the following issues, in sequence: (1) whether the claimant is
currently unemployed; (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, see
20 C.F.R. § 404, Subpt. P, App’x 1; (4) whether the claimant is unable to perform his past work;
and (5) whether the claimant is incapable of performing work in the national economy.3 See
Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001) (citations omitted); 20 C.F.R. §
404.1520. An affirmative answer leads either to the next step or, on steps three and five, to a
finding that the claimant is disabled. Zurawski v. Halter, 245 F.3d 881, 886 (7th Cir. 2001)
(citation omitted). A negative answer at any point other than step three stops the inquiry and
leads to a finding that the claimant is not disabled. Id. (citation omitted). The burden of proof
lies with the claimant at every step except the fifth, where it shifts to the Commissioner.
Clifford, 227 F.3d at 868 (citation omitted).
B. The Commissioner’s Final Decision
On August 4, 2014, the ALJ issued a decision that ultimately became the
Commissioner’s final decision. (AR 22-30). At step one, the ALJ concluded that Miller had not

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Before performing steps four and five, the ALJ must determine the claimant’s RFC or what tasks the
claimant can do despite his limitations. 20 C.F.R §§ 404.1520(e), 404.1545(a). The RFC is then used during steps
four and five to help determine what, if any, employment the claimant is capable of. 20 C.F.R. § 404.1520(e).

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engaged in substantial gainful activity after his alleged onset date. (AR 24). At step two, the
ALJ found that Miller had the following severe impairments: moderate lumbar degenerative disc
disease and residuals of lumbar surgery, residuals of remote bilateral hip replacements, and
Factor V Leiden mutation. (AR 24). At step three, the ALJ concluded that Miller did not have
an impairment or combination of impairments severe enough to meet or equal a listing. (AR 25).
Before proceeding to step four, the ALJ determined that Miller’s symptom testimony was
“not entirely credible” and then assigned Miller the following RFC:
[T]he claimant is able to lift and carry 10 pounds occasionally,
stand and/or walk 4 of 8 hours; sit 4 of 8 hours; no crawling;
occasional kneeling, crouching, balance and squatting; no deficits
in reaching or fine and gross manipulation; no climbing of ropes,
ladders or scaffolds; occasional use of stairs and ramps 1 to 2
flights with rails; occasional bending and stooping in addition to
what is required to sit; no work involving concentrated exposure to
heat, cold, wetness, fumes and dusts; no work involving
concentrated exposure to hazards of unprotected heights and open
and dangerous machinery.
(AR 25-26). The ALJ found at step four that Miller was unable to perform his past relevant
work as a metal fabricator. (AR 28-29). At step five, based on the assigned RFC and the VE’s
testimony, the ALJ concluded that Miller could perform a significant number of unskilled,
sedentary jobs in the economy, including document preparer, addresser, and surveillance system
monitor. (AR 30). Therefore, Miller’s application for DIB was denied. (AR 30).
C. The Assigned RFC
Miller argues, among other things, that the RFC assigned by the ALJ is not supported by substantial
evidence. More particularly, Miller faults the ALJ for failing to incorporate his periodic use of a
cane for ambulation and his limitations in prolonged walking or standing. For the following
reasons, Miller’s arguments are persuasive.
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The RFC is “the individual’s maximum remaining ability to do sustained work activities
in an ordinary work setting on a regular and continuing basis,” meaning eight hours a day, for
five days a week. SSR 96-8p, 1996 WL 374184, at *2 (July 2, 1996). That is, the “RFC is not
the least an individual can do despite his or her limitations or restrictions, but the most.” SSR
96-p, 1996 WL 374284 ,at *1; see 20 C.F.R. § 404.1545(a)(1) (“Your [RFC] is the most you can
still do despite your limitations.”); see also Young v. Barnhart, 362 F.3d 995, 1000-02 (7th Cir.
2004) (citations omitted). The RFC assessment “is based upon consideration of all relevant
evidence in the case record, including medical evidence and relevant nonmedical evidence, such
as observations of lay witnesses of an individual’s apparent symptomology, an individual’s own
statement of what he or she is able or unable to do, and many other factors that could help the
adjudicator determine the most reasonable findings in light of all the evidence.” SSR 96-5p,
1996 WL 374183, at *5 (July 2, 1996); see 20 C.F.R. § 404.1545. Therefore, when determining
the RFC, the ALJ must consider all medically determinable impairments, mental and physical,
even those that are non-severe. 20 C.F.R. § 404.1545(a)(2); see also Craft v. Astrue, 539 F.3d
668, 676 (7th Cir. 2008).
Here, Miller testified that he uses a cane “periodically,” which he stated was about once
or twice a week. (AR 56). He stated that he can tell in the morning if he is going to have a “bad
day” and then he uses the cane when he goes out or when climbing or descending stairs. (AR
56). The ALJ, however, did not include any limitation in the assigned RFC for Miller’s periodic
use of a cane. In the context of the listings at step three, the ALJ explained: “Although he may
use a cane for ambulation, the medical evidence does not establish the need for a hand-held
assistive device to aid in walking, or standing, and describing the circumstances for which it is

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needed as required under SSR 96-9p.”4 (AR 25 (internal citation omitted)). Then, when
considering the RFC later in the decision, the ALJ acknowledges Miller’s testimony that “he
uses a cane periodically, once or twice a week,” but the ALJ did not incorporate any use of the
cane into the RFC. (AR 26).
On March 14, 2014, Dr. Karl, Miller’s treating orthopaedist, observed that Miller’s spinal
X-ray showed moderate degenerative disc disease at L1-L2. (AR 334). Dr. Karl’s clinical
impression was lumbar radiculitis, lumbar degenerative disc disease, low back pain, right
degenerative osteoarthritis in hip, and lumbar sacroilitis. (AR 334). In the “Plan” section of his
treatment note, Dr. Karl wrote: “Patient to use a cane for ambulation.” (AR 334). In light of Dr.
Karl’s treatment note, Miller argues that the ALJ erred by concluding that the medical evidence
does not establish the need for a cane. See, e.g., Grube v. Colvin, No. 1:14-cv-01294-DKLRLY, 2015 WL 5672645, at *6 (S.D. Ind. Sept. 24, 2015) (remanding case where the ALJ
concluded that a cane was not medically necessary even though it was prescribed by a physician
and explaining that while the claimant “might not need the cane on good days, she may need it
on bad days”).
The Commissioner, in response, points out that on the same day that Dr. Karl included
Miller’s need for a cane in his treatment note, Dr. Karl also penned a work note, which did not
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SSR 96-9p provides:
To find that a hand-held assistive device is medically required, there must be
medical documentation establishing the need for a hand-held assistive device to
aid in walking or standing, and describing the circumstances for which it is need
(i.e., whether all the time, periodically, or only in certain situations; distance and
terrain; and any other relevant information). The adjudicator must always
consider the particular facts of a case.

1996 WL 374185, at *7 (July 2, 1996).

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mention the use of a cane. This work note provided: “The patient should not lift/carry 11-25
lbs, lift/carry 26-40 lbs, twist/bend, squat/kneel, climb or work with vibratory tools. The patient
may occasionally lift/carry 1-10 lbs, walk, work above shoulder, push/pull objects, and perform
repetitive motion.” (AR 335). The Commissioner further argues that while Miller told Dr.
Bacchus he used a cane periodically at his March 2013 consulting examination, Miller was not
using a cane on that day. (AR 27, 283). Nor was Miller using a cane when he visited the
hospital for an unrelated illness in December 2012. (AR 262). Therefore, as the Commissioner
sees it, the ALJ reasonably omitted a need to use a cane from Miller’s assigned RFC.
Dr. Karl’s opinions concerning Miller’s use of a cane and his work restrictions, however,
require further explanation. “An ALJ has a duty to solicit additional information to flesh out an
opinion for which the medical support is not readily discernable.” Barnett v. Barnhart, 381 F.3d
664, 669 (7th Cir. 2004) (collecting cases). “[A]n ALJ should recontact a treating physician if
the basis for the medical opinions requires explanation or if the ALJ is unable to apprehend the
underlying basis of the testimony.” Derr v. Colvin, No. 11 C 50247, 2014 WL 654391, at *12
(N.D. Ill. Feb. 20, 2014) (citation omitted). Therefore, the ALJ should have contacted Dr. Karl
to clarify Miller’s need for a cane while ambulating.
Moreover, while the ALJ concluded that the assigned RFC “is supported by the opinions
of State agency physicians, Dr. Bacchus, and Dr. Karl” (AR 28), that is not entirely accurate.
Not only did Dr. Karl opine that Miller use a cane for ambulation, but Dr. Karl also opined that
Miller could just “occasionally . . . walk” in an eight-hour workday. (AR 335). The Social
Security regulations define “occasional” as occurring no more than one-third of an eight-hour
workday, see Mullin v. Colvin, No. 15 C 1258, 2016 WL 2865366, at *3 (N.D. Ill. May 17,

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2016) (citing SSR 83-10, 1983 WL 31251, at *5-6 (1983)), and this same definition is also
reflected in Dr. Karl’s notes (AR 332 (“up to 1/3 day”)). This would translate to Miller walking
no more than two and three-quarters hours in an eight-hour workday. The ALJ, however,
limited Miller to standing or walking for four hours in an eight-hour workday, which is more
than occasional.
Additionally, Dr. Karl opined in March 2014 that Miller could never twist, bend, squat,
kneel, or climb. (AR 335). Yet, the ALJ concluded that Miller could occasionally kneel, crouch,
balance, squat, bend, stoop, and climb stairs or ramps. (Compare AR 335, with AR 26). The
ALJ never confronted this conflict in the evidence and explained why he adopted limitations in
the RFC that contradict the postural limitations assigned by Miller’s treating orthopaedist, Dr.
Karl. See Richardson v. Perales, 402 U.S. 389, 399 (1971) (“We . . . are presented with the not
uncommon situation of conflicting medical evidence. The trier of fact has the duty to resolve
that conflict.”).
Nor do the opinions of the state agency physicians, Drs. J.V. Corcoran and J. Sands,
support the assigned RFC with respect to Miller’s ability to perform prolonged walking or
standing. They found that Miller could stand or walk just two hours in an eight-hour workday
(AR 79, 89), not four hours in an eight-hour workday as the ALJ concluded. Furthermore, the
state agency doctors rendered their opinions in April and May 2013 before Dr. Karl issued his
May 2014 opinions. (AR 81, 90). Thus, the state agency doctors never reviewed Dr. Karl’s
opinions concerning the use of a cane and the prolonged walking and postural restrictions. Dr.
Karl’s opinions reasonably could have impacted the state agency doctors’ opinions. See Stage v.
Colvin, 812 F.3d 1121, 1126 (7th Cir. 2016) (“Before basing a denial on such a finding, the ALJ

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should have considered contrary evidence and obtained a medical opinion based on a complete
record.” (citation omitted)).
As to Dr. Bacchus, in his March 2013 report, he acknowledged Miller’s periodic use of a
cane and found that Miller had “some limitations” in regard to prolonged standing and walking
and postural movements. (AR 282, 284). Dr. Bacchus, however, did not elaborate as to Miller’s
specific limitations in these abilities. (AR 284). Due to this vagueness, Dr. Bacchus’s opinion
does not independently support the assigned RFC for prolonged walking and standing in excess
of the limitations opined by Dr. Karl and the state agency physicians.
In sum, the ALJ failed to confront and resolve the conflicting evidence in Dr. Karl’s
opinion about Miller’s use of a cane. Additionally, the RFC assigned by the ALJ lacks the
support of substantial evidence with respect to the limitations on prolonged walking and
standing. See Scott v. Astrue, 647 F.3d 734, 740 (7th Cir. 2011) (“The ALJ needed to explain
how she reached her conclusions about Scott’s physical capabilities, but the primary piece of
evidence that she relied on does not support the propositions for which it is cited. We therefore
must conclude that the ALJ failed to build the requisite ‘logical bridge’ between the evidence
and her conclusion.” (citations omitted)). Therefore, the Commissioner’s final decision will be
remanded for further consideration of Dr. Karl’s opinion, Miller’s use of a cane, and the RFC
concerning prolonged walking and standing and postural movements.5
IV. CONCLUSION
For the foregoing reasons, the decision of the Commissioner is REVERSED, and the case

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Because a remand is warranted concerning Miller’s use of a cane and the RFC, the Court need not reach
Miller’s other arguments.

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is REMANDED to the Commissioner for further proceedings in accordance with this Opinion
and Order. The Clerk is directed to enter a judgment in favor of Miller and against the
Commissioner.
SO ORDERED.
Entered this 22nd day of May 2018.
/s/ Susan Collins
Susan Collins
United States Magistrate Judge

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