Hurley v. Commissioner of Social Security

Filing 20

OPINION AND ORDER: The Court REVERSES and REMANDS this case for further proceedings in accordance with this Opinion and Order. Signed by Chief Judge Theresa L Springmann on 9/5/18. (ksp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
JENNIFER M. HURLEY,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of the Social Security
Administration,
Defendant.

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CAUSE NO.: 1:17-CV-421-TLS

OPINION AND ORDER
Plaintiff Jennifer M. Hurley seeks review of the final decision of the Commissioner of the
Social Security Administration (Commissioner) denying her application for disability and
disability insurance benefits. The Plaintiff argues that the Commissioner wrongfully denied her
application and erred by failing to base the step five finding on substantial evidence where the
vocational expert did not adequately describe his methodologies, failing to give good reasons for
discounting the opinion of a treating physician, and failing to include appropriate mental
limitations in the Plaintiff’s residual functional capacity.

BACKGROUND
On February 28, 2014, the Plaintiff filed a Title II application for a period of disability
and disability insurance benefits, alleging disability beginning on May 29, 2013. (R. at 20.) Her
claims were denied initially on June 9, 2014, and upon reconsideration on August 20, 2014. (Id.)
On May 4, 2016, the Plaintiff appeared with counsel and testified at a hearing before an
administrative law judge (ALJ). (Id.) Scott B. Silver, a vocational expert (VE), also appeared and

testified at the hearing. (Id.) On September 8, 2016, the ALJ denied the Plaintiff’s application,
finding she was not disabled from her alleged onset date. (R. 20–37.) On August 9, 2017, the
ALJ’s decision became the final decision of the Commissioner when the Appeals Council denied
the Plaintiff’s request for review of the ALJ’s decision. (R. 1–3.)
On October 9, 2017, the Plaintiff filed this claim [ECF No. 1] in federal court against the
Acting Commissioner of the Social Security Administration.

THE ALJ’S FINDINGS
Disability is defined as 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). To be found disabled, a claimant must demonstrate
that her physical or mental limitations prevent her from doing not only her previous work, but
also any other kind of gainful employment that exists in the national economy, considering her
age, education, and work experience. § 423(d)(2)(A).
An ALJ conducts a five-step inquiry in deciding whether to grant or deny benefits.
20 C.F.R. § 404.1520. The first step is to determine whether the claimant no longer engages in
substantial gainful activity (SGA). Id. In the case at hand, the ALJ found that the Plaintiff has
been unable to engage in SGA since her alleged disability onset date, May 29, 2013. (R. 22.)
In step two, the ALJ determines whether the claimant has a severe impairment limiting
her ability to do basic work activities under § 404.1520(c). In this case, the ALJ determined that
the Plaintiff had multiple severe impairments, including fibromyalgia, asthma/sinusitis, migraine
headaches, obesity and sleep apnea, bilateral wrist pain due to carpal tunnel syndrome

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(CTS)/ ulnar nerve compression, history of generalized abdominal pain with
diverticulitis/chronic gastritis, and bipolar disorder and post-traumatic stress disorder (PTSD).
(Id.) The ALJ found that these impairments significantly limited the Plaintiff’s ability to perform
the basic mental and physical demands of work. (Id.) The ALJ also found that the Plaintiff had
diabetes but that this condition was non-severe. (R. 22–23.)
Step three requires the ALJ to “consider the medical severity of [the] impairment” to
determine whether the impairment “meets or equals one of the [the] listings in appendix 1 . . . .”
§ 404.1520(a)(4)(iii). If a claimant’s impairment(s), considered singly or in combination with
other impairments, rise to this level, there is a presumption of disability “without considering
[the claimant’s] age, education, and work experience.” § 404.1520(d). But, if the impairment(s),
either singly or in combination, fall short, the ALJ must proceed to step four and examine the
claimant’s “residual functional capacity” (RFC)—the types of things she can still do physically,
despite her limitations—to determine whether she can perform “past relevant work,”
§ 404.1520(a)(4)(iv), or whether the claimant can “make an adjustment to other work” given the
claimant’s “age, education, and work experience.” § 404.1520(a)(4)(v).
The ALJ determined that the Plaintiff’s impairments did not meet or equal any of the
listings in Appendix 1. (R. 23–25.) The ALJ then found that the Plaintiff had the RFC to perform
light work as defined in 20 C.F.R. § 404.1567(b) in that she could:
[L]ift carry, push and pull 20 pounds occasionally and ten pounds frequently; can
sit, stand and walk for at least six hours out of an eight-hour workday[] but would
need additional limitations as follows: she needs a sit/stand option (which allows
for alternating between sitting and standing up to every 30 minutes, if needed, but
the positional change will not render the individual off task); only occasional
climbing or ramps and stairs, balancing, stooping, kneeling, crouching and
crawling; never climbing ladders, ropes, or scaffolds; no forceful grasping or
gripping with both hands; needs to avoid concentrated exposure to loud noise,
bright/flashing lights, and pulmonary irritants (i.e., fumes, odors, dust, gases,
poorly ventilated areas and chemicals). Mentally, the claimant is limited to
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understanding, remembering, in carrying out tasks consistent with unskilled work
(defined as an occupations that can be fully learned within a short period of time of
no more than 30 days, and requires little or no judgment to perform simple tasks),
with the ability to sustain those tasks throughout the eight-hour workday without
frequent redirection to tasks; no fast-paced work or work requiring a regimented
pace of production; and only occasional interactions with others, including
supervisors, coworkers and the general public.
(R. 25–26.)
After analyzing the record, the ALJ concluded that the Plaintiff was not disabled as of her
alleged onset date. The ALJ evaluated the objective medical evidence and the Plaintiff’s
subjective symptoms and found that the Plaintiff’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms. (R. 29.) But, the ALJ found that the
Plaintiff’s statements concerning the intensity, persistence, and limiting effects of her symptoms
were “not entirely consistent with the medical evidence and other evidence in the record.” (Id.)
In looking to the objective medical evidence, the ALJ gave great weight to the opinions
of the non-examining psychologists LML, Ph.D., and J. Gange, Ph.D., both Disability
Determination Services Psychologists, and non-examining physicians Mary Lanette Rees, M.D.,
and M. Ruiz, M.D., both Disability Determination Services Physicians. (R. 32–34.) The ALJ
reasoned that the opinions of Dr. LML and Dr. Gange were entitled to great weight because they
were “well supported by explanation and by the medical evidence, and [they] reflect[]
consideration of the entire medical records by . . . specialist[s] who [are] familiar with Social
Security regulations. (R. 33.) As to the opinions of Dr. Rees and Dr. Ruiz, the ALJ reasoned that
the opinions were “well supported by explanation and by the medical evidence.” (R. 34–35.) The
ALJ also stated: “The record does not contain any opinions from treating or examining
physicians indicating that the claimant is disabled or even has limitations greater than those
determined in this decision.” (R. 35.)

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The Plaintiff has past relevant work as a home housekeeper, waitress, nurse aide, home
health aide, gas station cashier, production assembler, and hand packager. (Id.) The ALJ
concluded that the Plaintiff was not capable of performing any past relevant work. (Id.) Relying
on the VE’s testimony, the ALJ found that, through the Plaintiff’s last date insured,
“[c]onsidering the claimant’s age, education, work experience, and residual functional capacity,
there were jobs that existed in significant numbers in the national economy that the claimant
could have performed.” (Id.) Ultimately, the ALJ found that the Plaintiff was not disabled as
defined in the Social Security Act since her alleged onset date and was not entitled to disability
insurance benefits. (R. 36–37.)

STANDARD OF REVIEW
The decision of the ALJ is the final decision of the Commissioner when the Appeals
Council denies a request for review. Liskowitz v. Astrue, 559 F.3d 736, 739 (7th Cir. 2009). The
Social Security Act establishes that the Commissioner’s findings as to any fact are conclusive if
supported by substantial evidence. See Diaz v. Chater, 55 F.3d 300, 305 (7th Cir. 1995). Thus,
the Court will affirm the Commissioner’s finding of fact and denial of disability benefits if
substantial evidence supports them. Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2009).
Substantial evidence is defined 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) (quoting
Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Henderson v. Apfel, 179 F.3d 507, 512
(7th Cir. 1999).
It is the duty of the ALJ to weigh the evidence, resolve material conflicts, make
independent findings of fact, and dispose of the case accordingly. Richardson, 402 U.S. at 399–

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400. The reviewing court reviews the entire record; however it does not substitute its judgment
for that of the Commissioner by reconsidering facts, reweighing evidence, resolving conflicts in
evidence, or deciding questions of credibility. See Diaz, 55 F.3d at 308. The Court will “conduct
a critical review of the evidence,” considering both the evidence that supports, as well as the
evidence that detracts from, 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) (internal quotations omitted).
When an ALJ recommends the denial of benefits, the ALJ must first “provide a logical
bridge between the evidence and [her] conclusions.” Terry v. Astrue, 580 F.3d 471, 475 (7th Cir.
2009) (internal quotation marks and citation omitted). Though the ALJ is not required to address
every piece of evidence or testimony presented, “as with any well-reasoned decision, the ALJ
must rest its denial of benefits on adequate evidence contained in the record and must explain
why contrary evidence does not persuade.” Berger v. Astrue, 516 F.3d 539, 544 (7th Cir. 2008).
However, if substantial evidence supports the ALJ’s determination, the decision must be
affirmed even if “reasonable minds could differ concerning whether [the claimant] is disabled.”
Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008).

ANALYSIS
The Plaintiff argues that the Commissioner wrongfully denied her applications and erred
by failing to base the step five finding on substantial evidence where the VE did not adequately
describe his methodologies, failing to give good reasons for discounting the opinion of a treating
physician, and failing to include appropriate mental limitations in the Plaintiff’s RFC.

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Both Drs. LML and Grange opined that the Plaintiff was moderately limited in her
activities of daily living, her social functioning, and in her ability to maintain concentration,
persistence and pace. (R. 32–33.) They also opined that the Plaintiff could understand,
remember, and carry out simple, routine instruction and that she could relate to coworkers,
supervisors and others in a superficial manner. (Id.) The Plaintiff’s RFC limits her only to
“occasional” interactions with others. The Plaintiff argues that the ALJ should have also included
a limitation that she was limited to “superficial” interactions and that failure to do so requires
remand. The Court agrees.
“‘Occasional contact’ goes to the quantity of time spent with the individuals, whereas
‘superficial contact’ goes to the quality of the interactions.” Wartak v. Colvin, No. 2:14-CV-401,
2016 WL 880945, at *7 (N.D. Ind. Mar. 8, 2016). These limitations are not interchangeable, nor
does one imply the other. Here, the ALJ “made no attempt to explain the basis of his decision to
limit [the Plaintiff] to occasional interaction rather than superficial interaction, nor is it apparent
from the record.” Gidley v. Colvin, No. 2:12-CV-374, 2013 WL 6909170, at *12 (N.D. Ind.
Dec. 30, 2013).
The Commissioner argues that the ALJ was not required to include every limitation
contained within the psychologists’ opinions and that the ALJ adequately discussed the
Plaintiff’s ability to interact with others. “While the ALJ was not required to adopt the state
agency psychologist[s’] opinion[s] in [their] entirety, he was required to build a ‘logical bridge
from the evidence to his conclusion.’” Mack v. Berryhill, No. 16 CV 11578, 2018 WL 3533270,
at *3 (N.D. Ill. July 23, 2018) (quoting Steele v. Barnhart, 290 F.3d 936, 941 (7th Cir. 2002)).
“The medical opinion[s] to which he assigned great weight included a more restrictive limitation
on [the Plaintiff’s] social interaction.” Gidley, 2013 WL 6909170, at *12. And, “[t]he ALJ did

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not point to even one additional piece of evidence that contradicted [the] opinion[s], and the
court cannot speculate as to the ALJ’s reasons.” Id.; see also Eveland v. Berryhill, No. 2:16-CV203, 2017 WL 3600387, at *5 (N.D. Ind. Aug. 22, 2017) (finding fault where the ALJ did not
explain why he limited the plaintiff to “occasional” contact when the expert opined that the
plaintiff could engage in “superficial contact” on an “ongoing basis”).
The limited discussion in the record of the Plaintiff’s ability to interact with others does
not suffice to build an accurate and logical bridge from the evidence to the ALJ’s conclusions.
There is no explanation as to why the ALJ accepted the limitation of “occasional interactions”
but not “superficial interactions” from the psychologists’ opinions. This is especially problematic
where there are no contrary medical opinions of record and where the ALJ assigned the
psychologists’ opinion great weight due to how well they were supported by the other evidence
of record and how well they explained their conclusions. See Mack, 2018 WL 3533270, at *3.
(“This does not adequately explain why the ALJ’s RFC differs from the state agency
psychologist’s RFC opinion when the ALJ gave great weight to his opinion as the only mental
RFC in the record.”). Therefore, the ALJ has failed to build a logical bridge between the
evidence and his conclusions.
Because the Court is remanding on this issue, it need not consider the remainder of the
parties’ arguments. However, the Court is skeptical that ALJ sufficiently accounted for the
Plaintiff’s limitations related to her sleep apnea in the RFC, especially considering that the ALJ
found it to be a severe impairment. On remand, the ALJ is encouraged to reconsider this issue.

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CONCLUSION
Accordingly, the Court REVERSES and REMANDS this case for further proceedings in
accordance with this Opinion and Order.
SO ORDERED on September 5, 2018.
s/ Theresa L. Springmann
CHIEF JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT

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