Maples v. Commissioner of Social Security
Filing
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OPINION AND ORDER: The decision of the ALJ denying Sonya Maples' application for Social Security disability benefits is REVERSED and REMANDED for further proceedings consistent with this opinion. Signed by Judge Philip P Simon on 4/7/2021. (mrm)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
SONYA LEANNE MAPLES,
Plaintiff,
v.
ANDREW M. SAUL,
Commissioner of
Social Security,
Defendant.
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Case No. 1:20-cv-157-PPS
OPINION AND ORDER
Sonya Leanne Maples has appealed from an administrative law judge’s denial of
her applications for Social Security supplemental security income. In doing so, she
claims that the ALJ committed three errors which require a reversal of his decision, but I
will limit my discussion to two: whether the ALJ erred in assessing Maples’
psychogenic seizures, and whether the VE’s testimony regarding job numbers was
supported by substantial evidence. Because I find that the ALJ erred in both regards, I
will REVERSE the ALJ’s decision and REMAND on these issues.
Background
Sonya Leanne Maples applied for supplemental security income benefits on June
19, 2014, claiming that she was disabled as of November 26, 2007. [A.R. 1 16.] Her claim
was denied initially and denied again upon reconsideration. After that, she requested
The Administrative Record (A.R.) in this case is found at Docket Entry # 14. Citations
are to the page number in the lower right-hand corner of the A.R.
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and had a hearing before an Administrative Law Judge on August 19, 2016. The ALJ
denied Maples benefits, and the Appeals Council agreed. [A.R. 1.] Maples then sought
review of the ALJ’s decision in this court.
My colleague, Magistrate Judge Cherry, presided over the initial appeal of the
case by consent of the parties. After consideration of the issues presented, he remanded
the ALJ’s decision. [A.R. 1626]. Pursuant to Judge Cherry’s remand order, the Appeals
Council directed the ALJ to conduct further proceedings consistent with his Order. The
Appeals Council directed the ALJ to consider treatment records from Northeastern
Center, to consider functional limits due to psychogenic nonepileptic seizures, to reanalyze fibromyalgia, to reconsider the opinion of chiropractor N. Gasdorf, to consider
whether noncompliance was influenced by a psychological component, and to provide
an explanation as to how moderate limits in concentrating, persisting, and maintaining
pace is addressed in the residual functional capacity. [A.R. 1475]. During the Appeals
process, Maples filed a subsequent claim for supplemental security income on October
17, 2017. The Appeals Council ordered that all claims be consolidated. [A.R. 1475].
A second hearing was held on July 10, 2019. On December 18, 2019, the ALJ
issued his written decision which once again denied Maples benefits. She then took her
case to the Social Security Appeals Council. On January 30, 2019, the Appeals Council
denied Jones’ request for review. [A.R. 1650.] Maples now seeks review of that decision.
In the written decision, the ALJ determined that Maples had the severe
impairments of cervical degenerative disc disease, status post fusion in 2018; positive
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ANA; myofascial pain syndrome/fibromyalgia; psychogenic nonepileptic seizures;
vertigo; chronic obstructive pulmonary disease (“COPD”); thyroiditis; lupus; bilateral
hip bursitis; right ulnar nerve neuropathy, status post release in 2018; bipolar
disorder/major depressive disorder/schizoaffective disorder; posttraumatic stress
disorder (“PTSD”); and, cannabis use disorder. [A.R. 1478.] The ALJ also found that
Maples had the non-severe impairments of pruritus, hyperlipidemia, hypotension,
GERD/reflux, irritable bowel syndrome, mild carpal tunnel syndrome bilaterally,
restless leg syndrome, and mild degenerative changes of the left hip. Id. The ALJ also
found that Maples’ rheumatoid arthritis, ankylosing spondylitis, and chronic kidney
disease were not medically determinable impairments. [A.R. 1479.]
The ALJ then determined that Maples did not meet any of the applicable social
security listings for disability. Specifically, the ALJ examined listings 3.02 (chronic
respiratory disorders), 11.02 (epilepsy), 14.02 (systemic lupus erythematosus), 12.04
(depressive, bipolar, and related disorders), 12.06 (anxiety and obsessive-compulsive
disorders); 12.08 (personality and impulse-control disorders); and 12.15 (trauma- and
stressor-related disorders). [A.R. 1479-80.]
At the next step, the ALJ determined Maples’ residual functional capacity (RFC).
[A.R. 1482.] She determined that Maples was capable of performing light work as
defined in 20 CFR 416.967(b), except that Maples can occasionally climb ramps and
stairs and can never climb ladders, ropes, or scaffolds. Maples can occasionally balance,
stoop, kneel, crouch, and crawl. Id. She should avoid concentrated exposure to hazards
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such as dangerous moving machinery, unprotected heights, and uneven terrain. Id. She
should avoid concentrated exposure to fumes, odors, dusts, gases, and other similar
respiratory irritants. Id. She can frequently handle, fingers, and feel with the right upper
extremity. Id. Maples can understand, remember, and carry out simple instructions. Id.
She can make judgments on simple work-related decisions. Id. She can respond
appropriately to occasional interactions with coworkers, supervisors, and the general
public. Id. She can respond appropriately to usual work situations, and she can deal
with routine changes in a routine work setting. Id. I won’t repeat the ALJ’s description
of the medical evidence included in the written decision. [See A.R. 1482-91.]
The ALJ then posed the RFC and some additional hypothetical questions to a
vocational expert (VE) who testified whether such a hypothetical person with Maples’
RFC could likely find gainful employment. [A.R. 1491-92, 1540-42.] The ALJ determined
that Maples was unable to perform her past relevant work as a customer service
representative, either as performed or as generally performed. [A.R. 1491.] However,
she found that Maples could perform the jobs of routing clerk, housekeeper/cleaner,
and retail marker, all of which exist in sufficient numbers in the national economy. As a
result, the ALJ found that Maples was not disabled within the meaning of the Social
Security Act and its regulations.
Discussion
In a Social Security disability appeal, my role as district court judge is limited. I
do not review evidence and determine whether a claimant is disabled and entitled to
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benefits. Instead, I review the ALJ’s written decision to determine whether the ALJ
applied the correct legal standards and whether the decision’s factual determinations
are supported by substantial evidence. Shideler v. Astrue, 688 F.3d 306, 310 (7th Cir.
2012). If substantial evidence supports the ALJ’s factual findings, they are conclusive.
Id.; 42 U.S.C. § 405(g). The Supreme Court has said that “substantial evidence” means
more than a “scintilla” of evidence, but less than a preponderance of the evidence.
Richardson v. Perales, 402 U.S. 389, 401 (1971). “Evidence is substantial if a reasonable
person would accept it as adequate to support the conclusion.” Young v. Barnhart, 362
F.3d 995, 1001 (7th Cir. 2004). My review is guided by the principle that while “[t]he
ALJ is not required to address every piece of evidence or testimony presented, but must
provide a ‘logical bridge’ between the evidence and the conclusions so that [I] can
assess the validity of the agency's ultimate findings and afford the claimant meaningful
judicial review.” Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010).
Given this modest standard, the review is a light one, but of course I cannot
“simply rubber-stamp the Commissioner’s decision without a critical review of the
evidence.” Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000). “[T]he decision cannot
stand if it lacks evidentiary support or an adequate discussion of the issues.” Briscoe ex
rel. Taylor v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005) (quoting Lopez ex rel. Lopez v.
Barnhart, 336 F.3d 535, 539 (7th Cir. 2003)).
Maples asserts that the ALJ failed to properly account for her psychogenic
seizures in the RFC, and that the ALJ improperly dismissed evidence of her
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psychogenic seizures. [DE 20 at 13]. Generally speaking, both the hypothetical posed to
the VE and the ALJ’s RFC assessment must incorporate all the claimant’s limitations
supported by the medical record. O’Connor-Spinner v. Astrue, 627 F.3d 614, 619 (7th Cir.
2010).
While the ALJ found that Maples’ psychogenic nonepileptic seizures were a
severe impairment, she seems to dismiss them throughout the decision, noting that they
“have not been witnessed during the course of treatment.” [A.R. 1485]. A psychogenic
seizure is an event which resembles a seizure but does not have the physical
characteristics such as electrical discharges in the brain that are associated with
epilepsy. 2 It is unknown what causes psychogenic seizures but it is thought that they
are psychiatric illness and are triggered by post-traumatic stress disorder or other high
levels of stress. Id.
Although the ALJ states that the RFC provides limitations to “accommodate any
seizure activity that may occur,” he relies on the fact that objective evidence does not
show seizure activity. Maples testified that she had frequent seizures, and that she takes
Lamictal and Topamax as anti-seizure medication. [A.R. 49]. She testified that the
medication does not help much with her “absent seizures.” Id. Maples also testified that
sometimes during seizures she loses control of her bladder or bowels. [A.R. 52]. While
in the ER for a seizure, the emergency department noted tremors in her lower
Chen, Jennifer, Epilepsy or Not? PNES Mistaken for More Common Seizure Disorder, YALEMEDICINE (Apr. 3,
2019), www.yalemedicine.org/news/seizure-epilepsy.
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extremities and that she was unsteady on her feet. [A.R. 573]. The same medical note
showed tremors during a video EEG. Id. While in the hospital, her tremors grew worse
during intentional muscle activity. [A.R. 574]. The physician told her that he believes
her seizures to be non-epileptic and caused by stress. [A.R. 575].
The ALJ takes special note that in 2016, Maples’ neurologist stated that she was
being followed for “alleged” seizures. [A.R. 1484]. However, this is a
mischaracterization of Dr. Hamdi’s findings. While there is one note that uses the word
“alleged”, the note itself does not discount the fact that she has seizures. On the
contrary, it discusses her seizures as fact. Instead, the word “alleged” seems to coincide
with the fact that Dr. Hamdi had recently determined that her seizures were
nonepileptic seizures; in other words, they were psychogenic seizures. [A.R. 2494]. At
no point does Dr. Hamdi seem to believe that Maples is lying or exaggerating the
existence of her seizures. Dr. Hamdi repeatedly states that her psychogenic nonepileptic
seizures remain her “main problem.” [A.R. 2497].
The ALJ further relies on the fact that the “evidence fails to reflect any
observations of seizures by a treating source.” [A.R. 1484]. It is unclear what the ALJ is
attempting to get at with this statement. The record repeatedly corroborates Maples’
seizure disorder, including mentions of the neurologist and hospital observing tremors.
[A.R. 574, 833, 840, 844, 855, 859, 875, 2487, 2494, 2497]. Psychogenic seizures do not
show up on objective testing, such as an EEG, CT, or MRI. See Boiles v. Barnhart, 395 F.3d
421, 424 (7th Cir. 2005) (stating that psychogenic seizures do not show up on EEGs and
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they “cannot be treated by anti-seizure medication.” They do not benefit from repeated
hospital visits for seizure treatment.).
Since Maples’ seizures are psychogenic in nature, they are less likely to be
observed by treating physicians, as they will not show up on EEGs or other objective
testing. Maples’ treating neurologist does not question her seizure disorder. Rather, he
continues to discuss the psychogenic nature of her seizures and recommending
psychiatric treatment. [A.R. 833, 840, 844, 855, 859, 875, 2487, 2494, 2497]. The ALJ seems
to imply that Maples’ seizures either do not exist or are less disabling than she asserts
simply because the objective evidence doesn’t support epileptic seizures. This is in
error. Because psychogenic seizures do not respond to anti-seizure medication, people
suffering from psychogenic seizures may “exhibit more frequent, severe, and disabling
seizures as well as a poorer quality of life.” 3
Similarly, the ALJ relies on benign examinations with intact coordination and
balance, as well as normal gait and normal EEGs. [A.R. 1484]. However, as stated
above, psychogenic seizures do not behave as epileptic seizures behave. Unremarkable
objective testing is consistent with psychogenic seizures, which are psychological in
nature. The ALJ has failed to properly consider Maples’ psychogenic seizure and to
properly analyze them as a psychological condition. The ALJ also improperly dismissed
Maples’ subjective symptoms regarding her psychogenic seizures based solely on
A. Krumholz, J. Hopp, Psychogenic (nonepileptic) seizures, SEMINARS IN NEUROLOGY, 26(3):34150 (July 2006), www.ncbi.nlm.nih.gov/pubmed/16791780 (last visited Apr. 5, 2021).
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objective testing, which is improper.
In addition, the ALJ erred by relying on the VE’s testimony when the VE’s job
numbers were not supported by substantial evidence. At the hearing, the VE testified
that Maples was capable of performing three jobs, and she offered an approximate
number of such positions existing in the United States. [A.R. 1542]. The jobs identified
were routing clerk, with approximately 54,000 jobs nationally; housekeeper/cleaner,
with approximately 135,000 nationally; and retail marker, with approximately 300,000
nationally. [A.R. 1542]. The VE further testified that these jobs were simply
representative of jobs Maples could perform, and it was not an exhaustive list of
occupations. [A.R. 1542]. The attorney then questioned the VE regarding how she
determined the job numbers. [A.R. 1543]. The VE stated that she used Job Browser Pro
to reach her national numbers, but she could not identify how those numbers were
correlated to specific SOC and DOT codes. [A.R. 1543-44]. Job Browser Pro is a
commercial software program which provides job numbers for DOT codes and
occupations. See Dahl v. Saul, No. 18-C-676, 2019 WL 4239829, at *4 (E.D. Wis. Sept. 6,
2019). The VE’s only explanation of the job numbers was that it “is a mathematical
weighting of the percentages,” correlated to a DOT code and factored for full-time or
part-time work. [A.R. 1544].
With more questioning from the attorney, the VE attempted to explain how the
job numbers were achieved. She testified that the program starts with larger industry
groupings (NAICS codes), which are divided into smaller groupings and codes. [A.R.
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1545]. She stated that each code has a percentage, but that she doesn’t know how to
explain it, and that “it’s all on the software.” [A.R. 1545-46]. The VE also stated that she
did not rely on her own experience in determining job numbers. [A.R. 1552]. Maples’
attorney objected to the VE’s job number estimates. [A.R. 1551]. The ALJ did not
respond to this objection. [A.R. 1551].
The factual findings of the Commissioner, including findings as to “the kind and
number of jobs available for someone with the applicant’s disability and other
characteristics,” are “‘conclusive’ in judicial review of the benefits decision so long as
they are supported by ‘substantial evidence.’” Biestek v. Berryhill, 139 S. Ct. 1148, 1152,
203 L. Ed. 2d 504, (2019). Appellate courts have recently paid significant attention to
issues involving the reliability of vocational experts’ jobs evidence used in Social
Security proceedings. In 2014, the Seventh Circuit expressed “concern with the source
and validity of the statistics that vocational experts trot out in social security disability
hearings.” Alaura v. Colvin, 797 F.3d 503, 507 (7th Cir. 2015) (citing Browning v. Colvin,
766 F.3d 702, 709 (7th Cir. 2014)). In Biestek, the Supreme Court considered whether a
VE’s jobs testimony constituted “substantial evidence” for purposes of judicial review.
Biestek’s attorney cross-examined the VE, asking for the source of her jobs numbers
data, which she declined to fully disclose. Biestek, 139 S.Ct. at 153. The Supreme Court
held that a determination about whether a VE’s testimony meets the substantialevidence bar must be made case by case, using “markers of reliability” in the record to
make the determinations. Id. at 1157. The Supreme Court explained that a VE’s job-10-
number testimony will meet the substantial-evidence bar so long as it rests on a wellaccepted methodology, and so long as the VE describes the methodology “cogently and
thoroughly.” Biestek, 139 S. Ct. at 1155.
Recently, the Seventh Circuit addressed a similar issue in Brace v. Saul, 970 F.3d
818 (7th Cir. 2020). In Brace, the Court found that the VE’s jobs estimate was “critical to
[the] appeal” because the Social Security Administration has the “burden of showing
that a significant number of other jobs are available to the claimant.” Id. at 820. The
Seventh Circuit noted that VEs often rely on the DOT, which has not been updated in
almost 30 years. Id. (citing Occupational Information System Project, SSA,
www.ssa.gov/disabilityresearch/occupational_info_systems.html (last visited Apr. 6,
2021)). “Because the database of job titles is so outdated, an expert’s methodology for
connecting job titles to reliable estimates of the number of jobs for each title is especially
important.” Id.
In Brace, the VE stated that estimated job numbers are based on “weighting or reweighting” allocations to get estimate of job numbers. Brace, 807 F.3d at 821. The
Seventh Circuit found this answer to be “entirely unilluminating.” Id. at 822. More
specifically, the Seventh Circuit noted that words and phrases such as “allocation,”
“weighting,” and “information that I have,” without elaboration or explanation “cannot
possibly satisfy the substantial-evidence standard.” Id.
The Seventh Circuit has not yet opined on the reliability of the software Job
Browser Pro. However, District Courts in the Seventh Circuit have affirmed VE
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numbers that rely on Job Browser Pro estimates when the VEs were able to
meaningfully describe the processes they employed. See, e.g., Chad S. v. Saul, No. 1:18CV-298-WCL, 2020 U.S. Dist. LEXIS 26703, 2020 WL 773274, at *5-6 (N.D. Ind. Feb. 18,
2020); Khuzaie v. Comm'r of Soc. Sec., No. 1:14-CV-00199-SLC, 2016 U.S. Dist. LEXIS
42958, 2016 WL 1253537, at *11-15 (N.D. Ind. Mar. 30, 2016). However, District Courts
have remanded when the VEs were unable to explain their process. See, e.g., Smith v.
Berryhill, No. 16 C 5451, 2018 U.S. Dist. LEXIS 167473, 2018 WL 4679584, at *7-8 (N.D. Ill.
Sept. 28, 2018); Russell v. Berryhill, No. 16-cv-1251, 2017 U.S. Dist. LEXIS 138145, 2017
WL 3704354, at *4-6 (S.D. Ill. Aug. 28, 2017); Westendorf v. Saul, No. 19-cv-1019-JDP, 2020
U.S. Dist. LEXIS 136131, at *13-14 (W.D. Wis. July 21, 2020) (“Because the ALJ did not
ensure that the VE's job estimates were the product of a reliable method, his decision
was not based on substantial evidence.”).
Here, the VE was unable to cogently explain how the job numbers were
achieved. She simply discusses vague weighted percentages and states that she does not
know how to explain how the software achieves job numbers. This vague and hard to
follow explanation does not meet the substantial evidence bar. Brace, 807 F.3d at 822
“Job Browser Pro might be a useful tool, but the VE needs to be able to explain how Job
Browser Pro makes its job number estimates, how she used the software to generate her
own estimates, and why she believes those estimates are reliable.” Westendorf, 2020 WL
4381991, at *4. In other words, saying that “I don’t know how to explain it, but it’s all on
the software”—as the VE said here—doesn’t cut it. [A.R. 1545-46].
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On remand, the ALJ should properly consider and analyze Maples’ psychogenic
seizures, as well as ensure that the VE provides testimony that reaches the substantial
evidence bar. Because I am remanding this case for the reasons stated above, I need not
discuss the remaining issues raised by Maples. She can raise those issues directly with
the ALJ on remand.
Maples requests that this decision be reversed and that she be awarded benefits.
However, an outright reversal of the ALJ’s decision is not appropriate, because an
award of benefits “is appropriate only if all factual issues have been resolved,” Briscoe,
425 F.3d at 355, and where “the record can yield but one supportable conclusion.”
Campbell v. Shalala, 988 F.2d 741, 744 (7th Cir. 1993). However, the factual issues in this
case have not been resolved. Therefore, the case is remanded for further analysis and to
resolve the factual issues.
Conclusion
For the foregoing reasons, the decision of the ALJ denying Sonya Maples’
application for Social Security disability benefits is REVERSED and REMANDED for
further proceedings consistent with this opinion.
SO ORDERED on April 7, 2021.
/s/ Philip P. Simon
PHILIP P. SIMON, JUDGE
UNITED STATES DISTRICT COURT
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