Frain v. Commissioner of Social Security
Filing
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OPINION AND ORDER: The Decision of the ALJ is AFFIRMED. Signed by Judge Holly A Brady on 10/3/19. (nal)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
JEFFREY A FRAIN,
Plaintiff,
v.
ANDREW SAUL,
Commissioner of the Social
Security Administration1,
Defendant.
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Cause No. 1:18-CV-155-HAB
OPINION AND ORDER
This matter comes before the Court on Plaintiff Jeffrey A. Frain’s Opening Brief (ECF No.
19) (“Plaintiff’s Brief”), filed on December 5, 2018. Defendant Andrew Saul, Commissioner of
the Social Security Administration (the “Commissioner”), filed his Memorandum in Support of
Commissioner’s Decision (ECF No. 20) on December 20, 2018. Plaintiff did not file a reply brief.
This matter is now ripe for review.
A.
Procedural History
Plaintiff applied for both Disability Insurance Benefits and Supplemental Security Income
benefits under Title II of the Social Security Act on January 15, 2015. His application was denied
initially on May 20, 2015, and upon reconsideration on June 25, 2015. On February 8, 2017,
Plaintiff attended a hearing on his application before the Administrative Law Judge (“ALJ”). The
ALJ entered her Decision on June 26, 2017, finding that Plaintiff was not disabled.
Andrew Saul is now the Commissioner of Social Security and is automatically substituted as a party
pursuant to Fed. R. Civ. P. 25(d). See also Section 205(g) of the Social Security Act, 42 USC § 405(g)
(action survives regardless of any change in the person occupying the office of Commissioner of Social
Security).
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On June 30, 2017, Plaintiff challenged the Decision by timely filing a Request for Review
of Hearing Decision/Order with the Appeals Council. That request was denied on March 31, 2018.
Thereafter, Plaintiff timely filed his Complaint to Review Decision of Commissioner of Social
Security Administration (ECF No. 1) with this Court on May 29, 2018.
B.
Legal Analysis
1.
Standard of Review
A claimant who is found to be “not disabled” may challenge the Commissioner’s final
decision in federal court. This Court must affirm the ALJ’s decision if it is supported by substantial
evidence and free from legal error. 42 U.S.C. § 405(g); Steele v. Barnhart, 290 F.3d 936, 940 (7th
Cir. 2002). Substantial evidence is “more than a mere scintilla of proof.” Kepple v. Massanari, 268
F.3d 513, 516 (7th Cir. 2001). It means “evidence a reasonable person would accept as adequate
to support the decision.” Murphy v. Astrue, 496 F.3d 630, 633 (7th Cir. 2007); see also Diaz v.
Chater, 55 F.3d 300, 305 (7th Cir. 1995) (substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”) (citation and quotations
omitted).
In determining whether there is substantial evidence, the Court reviews the entire record.
Kepple, 268 F.3d at 516. However, review is deferential. Skinner v. Astrue, 478 F.3d 836, 841 (7th
Cir. 2007). A reviewing court will not “reweigh evidence, resolve conflicts, decide questions of
credibility, or substitute [its] own judgment for that of the Commissioner.” Lopez v. Barnhart, 336
F.3d 535, 539 (7th Cir. 2003) (quoting Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000)).
Nonetheless, if, after a “critical review of the evidence,” the ALJ’s decision “lacks
evidentiary support or an adequate discussion of the issues,” this Court will not affirm it. Lopez,
336 F.3d at 539 (citations omitted). While the ALJ need not discuss every piece of evidence in the
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record, he “must build an accurate and logical bridge from the evidence to [the] conclusion.” Dixon
v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). Further, the ALJ “may not select and discuss
only that evidence that favors his ultimate conclusion,” Diaz, 55 F.3d at 308, but “must confront
the evidence that does not support his conclusion and explain why it was rejected,” Indoranto v.
Barnhart, 374 F.3d 470, 474 (7th Cir. 2004). Ultimately, the ALJ must “sufficiently articulate his
assessment of the evidence to assure” the court that he “considered the important evidence” and to
enable the court “to trace the path of [his] reasoning.” Carlson v. Shalala, 999 F.2d 180, 181 (7th
Cir. 1993) (quoting Stephens v. Heckler, 766 F.2d 284, 287 (7th Cir. 1985) (internal quotation
marks omitted)).
2.
The ALJ’s Decision
A person suffering from a disability that renders her unable to work may apply to the Social
Security Administration for disability benefits. See 42 U.S.C. § 423(d)(1)(A) (defining disability
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”). To be found
disabled, a claimant must demonstrate that his physical or mental limitations prevent him 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).
If a claimant’s application is denied initially and on reconsideration, he may request a
hearing before an ALJ. See 42 U.S.C. § 405(b)(1). An ALJ conducts a five-step inquiry in deciding
whether to grant or deny benefits: (1) whether the claimant is currently employed, (2) whether the
claimant has a severe impairment, (3) whether the claimant’s impairment is one that the
Commissioner considers conclusively disabling, (4) if the claimant does not have a conclusively
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disabling impairment, whether he has the residual functional capacity to perform his past relevant
work, and (5) whether the claimant is capable of performing any work in the national economy.
See 20 C.F.R. § 404.1520(a); Zurawski v. Halter, 245 F.3d 881, 885 (7th Cir. 2001).
At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful
activity since July 12, 2013. At step two, the ALJ found that Plaintiff had the following severe
impairments: cubital tunnel syndrome, depressive disorder, mood disorder with depressive
features, chronic pain syndrome, degenerative disc disease, degenerative joint disease, and
fibromyalgia. The ALJ further found that the Plaintiff had the following non-severe impairments:
hyperlipidemia, gastroesophageal reflux disease (“GERD”), and insomnia.
At step three, the ALJ found that Plaintiff did not have “an impairment or combination of
impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1.” (R. 89). At step four, the ALJ found that Plaintiff had the
residual functional capacity (“RFC”) to:
Perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except
sit/stand option after 15 to 30 minutes; never climbing ladders, ropes, scaffolds,
ramps, and stairs; occasionally balance, stoop, kneel, crouch, and crawl; must avoid
concentrated exposure to unprotected heights; frequent fingering and handling; can
have brief, routine, and superficial interaction with supervisors; can have
occasional interaction with coworkers and the public; can understand, remember,
and carry out simple, routine and repetitive tasks with only occasional, simple
decision making required; cannot work at assembly line production rate pace; and
would need to use a can occasionally when ambulating.
(R. 91). At step five, the ALJ determine that Plaintiff was unable to perform any past relevant
work, but that there were jobs that exist in significant numbers in the national economy that
Plaintiff could perform.
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3.
The RFC
Plaintiff first asserts, based upon Arnett v. Astrue, 676 F.3d 586 (7th Cir. 2012), that the
ALJ’s sit/stand limitation in the RFC lacked necessary specificity. In Arnett, the Seventh Circuit
held that an RFC “must be specific about the required frequency of standing and sitting,” noting
that it must either “specify a particular frequency” or must state that the individual may “choose
to sit or stand when [he] feels it is necessary.” Id. at 593. Plaintiff asserts that the RFC violates
Arnett because it is vague, in that it contains both a frequency and an individual option. The Court
does not agree.
In his hypothetical to the Vocational Expert (“VE”), the ALJ described an individual “who
was able to perform sedentary work with a sit/stand option, being able to stand after sitting for 30
minutes.” (R. 317). As this Court stated in Best v. Acting Comm’r. of Soc. Sec., 2017 WL 6523929
(N.D. Ind. December 21, 2017)2, “not only did the ALJ specifically indicate that the sit/stand
option was to be at-will, a particular frequency was attached to further clarify what was intended
by at-will. The Court does not find that any further detail was necessary for the vocational expert
to determine how the occupational base would be eroded.” Id. at *3. The RFC substantively
incorporated the hypothetical, communicating both a sit/stand “option,” and a particular frequency
to clarify the option (“15 to 30 minutes”). The Court does not find any basis to remand based upon
the postural limitation.
Plaintiff next asserts that the RFC’s inclusion of “frequent fingering and handling” fails to
consider all of Plaintiff’s severe and non-severe impairments, specifically his diagnoses of a lesion
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The Court notes that Plaintiff’s counsel, Randall S. Forbes, was also counsel for the plaintiff in Best. Attorney Forbes
is reminded that, under Indiana Rule of Professional Conduct 3.3, he has a duty to “disclose to the tribunal legal
authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client.” Given
the obvious similarities in both the argument advanced by counsel and the RFCs in the two cases, Best should have
been disclosed to the Court.
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of the ulnar nerve, right rotator cuff tendinitis, cubital tunnel syndrome, carpal tunnel syndrome,
and bilateral wrist degeneration/pain. (ECF No. 19 at 15–16). Plaintiff states that “[i]t defies logic
that someone with Plaintiff’s serious hand/wrist/elbow/shoulder and other upper extremity
impairments…could continue using their hand/wrist/upper extremities frequently.” (Id. at 15).
The Court has reviewed those portions of the record that Plaintiff has designated in support
of his claimed limitations, as well as the rest of Plaintiff’s medical records. In nearly every record,
the limitations claimed by the Plaintiff are noted as present or historical diagnoses with no
indication of what, if any, physical impairments result. The only exception is in the Record at page
1206, where a doctor at the Fort Wayne Veteran’s Administration Medical Center recorded
Plaintiff’s subjective claims that he had “trouble holding onto the cups, sodas and usage.” (R.
1206). For the most part, then, these records do nothing to support a claim for additional limitations
as a mere diagnosis does not demonstrate disability. Estok v. Apfel, 152 F.3d 636, 640 (7th Cir.
1998).
In any event, the Court finds that the ALJ built an accurate and logical bridge from the
evidence to the conclusion. The ALJ repeatedly references the evidence in the record related to
Plaintiff’s upper extremities, including:
Numbness in the left little and ring fingers;
Mild degenerative changes in the left wrist;
Mild paresthesia and/or dysesthesia in the right upper extremity;
Mild right upper extremity intermittent pain;
Minimal degenerative changes in the right wrist;
Nonspecific cystic changes in the right wrist;
Injections and occupational therapy for right wrist pain;
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Subjective claims of sharp pain in both wrists; and
Subjective reports of problems with buttoning and zipping.
(R. 88, 92). The ALJ nonetheless found that medical evidence did not support any further
limitations, noting that Plaintiff was able to raise his right shoulders, make fists, move his wrists,
and demonstrate fair hand grasp. (R. 93).
The Court may or may not have weighed the medical evidence in the same way as the ALJ,
but the ALJ’s determination is entitled to deference. Lopez, 336 F.3d at 539. The Court is satisfied
that the ALJ has sufficiently addressed the evidence in the record, both supporting and
contradicting her conclusion, to enable the Court to trace her reasoning. As such, the Court will
not remand this matter on the basis of the claimed deficiencies in the RFC.
4.
ALJ’s Credibility Determination
Finally, Plaintiff challenges the ALJ’s credibility determination, claiming that the ALJ
failed to consider his work history and military service in evaluating the credibility of Plaintiff’s
subjective complaints. In support of his claim, Plaintiff cites Stark v. Colvin, 813 F.3d 684 (7th
Cir. 2016) and Hill v. Colvin, 807 F.3d 862 (7th Cir. 2015), both of which state that a “claimant
with a good work record is entitled to substantial credibility when claiming an inability to work
because of a disability.” Stark, 813 F.3d at 689; Hill, 807 F.3d at 868.
A failure to discuss a claimant’s work history is not, however, fatal to an ALJ’s
determination. As Stark notes, “[a]n ALJ is not statutorily required to consider a claimant’s work
history.” Stark, 813 F.3d at 689. A claimant’s work history is just one factor among many and is
not dispositive to the credibility determination. Summers v. Berryhill, 864 F.3d 523, 529 (7th Cir.
2017). This Court cannot, and will not, remand simply because the ALJ did not reference every
factor relevant to the credibility inquiry. Terry v. Astrue, 580 F.3d 471, 477 (7th Cir. 2009).
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Because Plaintiff raises no other challenge to the credibility determination, he raises no grounds
upon which remand can be granted.
The Court would also note that the ALJ did discuss Plaintiff’s extensive work history in
the step five evaluation of Plaintiff’s ability to perform past relevant work. (R. 95). The fact that
this discussion is had at step 5, rather than in the RFC determination, is irrelevant. The Court
cannot discount an ALJ’s discussion of evidence simply because it appears in a different portion
of the Decision. Curvin v. Colvin, 778 F.3d 645, 650 (7th Cir. 2015). The ALJ was plainly aware
of the Plaintiff’s work history and the Plaintiff has done nothing to demonstrate otherwise.
C.
Conclusion
For the foregoing reasons, the Decision is AFFIRMED.
SO ORDERED on October 3, 2019.
s/ Holly A. Brady
JUDGE HOLLY A. BRADY
UNITED STATES DISTRICT COURT
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