Wright v. Commissioner of Social Security
Filing
26
OPINION AND ORDER: the Court hereby DENIES the relief requested in Plaintiffs 19 Opening Brief. Signed by Magistrate Judge Paul R Cherry on 9/4/12. (mc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
JOHNNY WRIGHT,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of the Social Security
Administration,
Defendant.
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CAUSE NO.: 2:11-CV-357-PRC
OPINION AND ORDER
This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Johnny Wright on
September 23, 2011, and on Plaintiff’s Opening Brief [DE 19], filed on March 14, 2012. Plaintiff
requests that the Administrative Law Judge’s decision to deny him disability benefits and
supplemental security income be reversed or, alternatively, remanded for further proceedings. On
June 13, 2012, the Commissioner filed a response, and on July 5, 2012, Plaintiff filed a reply. For
the reasons set forth below, the Court denies Plaintiff’s request for remand.
PROCEDURAL BACKGROUND
On August 15, 2008, Plaintiff filed an application for a period of disability, seeking disability
insurance benefits and supplemental security income and alleging an onset date of March 25, 2003.
Plaintiff’s application was denied initially on October 17, 2008, and subsequently upon
reconsideration on December 30, 2008. Plaintiff filed a timely request for a hearing on February
9, 2009.
A hearing was held before Administrative Law Judge (“ALJ”) Jose Anglada on February 26,
2010, by video teleconference. In appearance were Plaintiff, his attorney Brian Marlowe, and
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vocational expert (“VE”) Lee Knutson. On April 12, 2010, the ALJ issued a decision denying
Plaintiff’s application. The ALJ made the following findings:
1.
The claimant meets the insured status requirements of the Social Security Act
through December 31, 2008.
2.
The claimant has not engaged in substantial gainful activity since March 25,
2003, the alleged onset date (20 CFR 404.1571 et seq. and 416.971 et seq.).
3.
The claimant has the following severe impairment: degenerative changes of
the lumbar spine (20 CFR 404.1520(c) and 416.920(c)).
4.
The claimant does not have an impairment or combination of impairments
that meets or medically equals one of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1 (20 CFR and 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925 and 416.926).
5.
After careful consideration of the entire record, I find that the claimant has
the residual functional capacity to perform sedentary work as defined in 20
CFR 404.1567(a) and 416.967(a). The claimant can lift/carry a maximum of
20 pounds; he can push/pull a maximum of 20 pounds; he can stand/walk for
about four hours in an eight hour workday and sit for about six hours in an
eight hour workday. He needs the option to alternate between the sitting and
standing position. He can occasionally stoop, crouch, twist and turn, but he
cannot climb ladders or frequently climb stairs. He can only frequently
operate foot controls. He should not be exposed to dangerous machinery or
heights.
6.
The claimant is unable to perform any past relevant work (20 CFR 404.1565
and 416.965).
7.
The claimant was born on [ ], 1961 and was 42 years old, which is defined
as a younger individual age 18-44, on the alleged disability onset date. The
claimant subsequently changed age category to a younger individual age 4549 (20 CFR 404.1563 and 416.963).
8.
The claimant has at least a high school education and is able to communicate
in English (20 CFR 404.1564 and 416.964).
9.
Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a
finding that the claimant is “not disabled,” whether or not the claimant has
transferrable job skills (See SSR 82-41 and 20 CFR Part 404, Supbart P,
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Appendix 2).
10.
Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform (20 CFR 404.1569,
404.1569(a), 416.969, and 416.969(a)).
11.
The claimant has not been under a disability, as defined in the Social Security
Act, from March 25, 2003, through the date of this decision (20 CFR
404.1520(g) and 416.920(g)).
AR 11-18.
Plaintiff sought review of the ALJ’s decision; however, on July 22, 2011, the Appeals
Council denied Plaintiff’s request for review, leaving the ALJ’s decision the final decision of the
Commissioner.
The parties filed forms of consent to have this case assigned to a United States Magistrate
Judge to conduct all further proceedings and to order the entry of a final judgment in this case.
Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c) and 42
U.S.C. § 405(g).
FACTUAL BACKGROUND
A. Medical Evidence and Testimony
Plaintiff received treatment over several years for back pain related to a work injury.
On April 18, 2002, an examination of Plaintiff revealed normal sensation, full range of
motion, and negative straight leg raising. Plaintiff complained that he had hurt his back one month
earlier, that the pain had gotten better, but that the pain was back.
On January 21, 2004, Plaintiff complained of tenderness across the lower back. The doctor
noted straight leg raising associated with pain in the left leg.
Plaintiff visited the hospital on February 1, 2006, for abdominal pain. The examining nurses
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noted normal range of motion in his extremities.
On December 14, 2006, Plaintiff presented for a consultative examination by Dr. Adela
Perez, complaining of back pain radiating to the left leg. At this exam Plaintiff was walking using
a cane and was limping in the left leg. Plaintiff described severe pain radiating to the left leg. Dr.
Perez’s examination revealed almost entirely normal sensation except for slightly decreased
sensation in the left lower extremity, positive straight leg raising bilaterally on the left at 20 degrees
and on the right at 50 degrees, and a decreased range of motion in the lumbar spine. Dr. Perez noted
that Plaintiff had slight difficulty getting on and off the examination table, slight difficulty tandem
walking, much difficulty standing on toes, “too much” difficulty standing on heels, “too much”
difficulty squatting, and moderate difficulty standing on one leg. AR 305. Dr. Perez found range
of motion in all joints was normal in all extremities, no spinal anatomic abnormalities or tenderness,
full muscle strength, and normal reflexes. Dr. Perez diagnosed “[c]onstant chronic back pain, only
relieved when lying down, in the lower back and radiating to the left leg with paraesthesia of the left
leg” and the need for a cane to walk. AR 305.
At a pain management assessment on June 14, 2007, Dr. Behrad Atassi diagnosed lower back
pain with intermittent radiculopathy and recommended epidural steroid and trigger point injections.
Dr. Atassi’s exam revealed no sensory loss or motor weakness, a positive straight leg raise test on
the left at 45 degrees, and weak bilateral deep tendon reflexes.
A July 25, 2008 MRI of the lumbar spine revealed degenerative changes, worse at L4-L5 and
L5-S1; mild lateral recess narrowing at L4-L5; and “mild neural foraminal narrowing greater on the
left at L5 which may abut the L5 nerve laterally.” AR 299.
Plaintiff reported in a September 4, 2008 function report that he wakes up due to back and
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leg pain, has difficulties dressing but can take care of most of his own personal care, may go to the
store, can only walk 25 feet depending on how bad the pain is, and sometimes uses a cane. Plaintiff
reported problems with the ability to lift, squat, bend, stand, reach, walk, sit, kneel, and climb stairs
due to his stress and pain.
On September 11, 2008, Dr. Chieda Nchekwube, MD, a primary care physician, noted
complaints of right leg cramps at times and diagnosed lumbar disc disease with radiculopathy
finding spinal tenderness and a positive straight leg raise test. Dr. Nchekwube referred Plaintiff to
a spinal surgeon, Dr. Shepherd; however, Dr. Shepherd did not accept Plaintiff’s medicaid
insurance.
At a psychological consultative examination, Dr. Patrick McKian, Ph.D. noted that Plaintiff
complained of pain across his low back and buttocks going down his right leg.
On October 14, 2008, at a second consultative examination by Dr. Adela Perez, Plaintiff
complained of back pain radiating to the right leg. Dr. Perez noted that Plaintiff walked into the
room limping on the right leg, and Dr. Perez noted “some numbness in the right and left leg, very
minimal.” AR 371. Plaintiff described symptoms of numbness in the right and left leg, though
minimally in the left. Plaintiff reported that the pain formerly radiated in the left leg, but not any
more. Dr. Perez’s examination showed a decreased range of motion in the lumbar spine and a
positive bilateral straight leg test at 60 degrees. Dr. Perez noted normal range of motion in all joints,
no tenderness or atrophy, no spinal anatomic abnormalities, full muscle strength in the upper and
lower extremities, intact sensation, and symmetrical reflexes. Plaintiff reported that at times he uses
a cane; that day he was not using one.
Dr. Perez diagnosed back pain, possible lumbar
radiculopathy, and possible herniated disc.
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State agency reviewing doctor Michael Brill, M.D., completed a physical capacity
assessment on October 17, 2008. Dr. Brill opined that Plaintiff could perform a limited range of
medium work and determined that Plaintiff’s impairments did not meet or equal a medical listing.
Another state agency reviewing doctor, Bruce Whitley, M.D., affirmed Dr. Brill’s opinion on
December 30, 2008.
A March 25, 2009 nerve conduction study revealed consideration of a mild bilateral L5
radiculopathy in Plaintiff’s lower extremities.
On April 28, 2009, Plaintiff presented to Dr. C.J. Yoon upon referral from Dr. Nchewkube
for an initial pain evaluation. Plaintiff described pain in his mid back that radiates down both legs
as well as tingling in both legs and muscle spasms in his back. Dr. Yoon noted that Plaintiff’s back
range of motion was moderately decreased in all directions and his back strength was decreased, but
that his back sensation was normal and reflexes were symmetrical. Repeated examinations by Dr.
Yoon over the next eight months showed nearly identical results. See AR 412-13, 419-20, 423-24,
427-28, 431-32, 434, 445, 448. Dr. Yoon diagnosed degenerative disc disease and lumbar
radiculitis. Dr. Yoon wrote “off work until notice” and gave Plaintiff a home exercise program and
a prescription for a back brace as well as pain medications. Dr. Yoon ordered an MRI of the lumbar
spine.
The July 7, 2009 MRI revealed mild disc degenerative change at L5-S1 with facet arthritis
especially at L4-5 on the right side. There was no evidence of disc herniation or significant spinal
stenosis in the lumbar spine.
On July 24, 2009, Dr. Yoon ordered physical therapy to occur three times a week for twelve
weeks. On August 21, 2009, Dr. Yoon prescribed a cane for low back pain and lower extremity
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weakness at Plaintiff’s request. On September 18, 2009, Plaintiff indicated to Dr. Yoon that he did
not feel that physical therapy was helping, that his pain was worse, and that he had bilateral leg
weakness. Dr. Yoon indicated that Plaintiff should continue physical therapy. Physical therapy
records from each of the visits in August and September of 2009 noted Plaintiff was “improving
slowly.” AR 415-18. On October 16, 2009, Plaintiff noted to Dr. Yoon that the physical therapy
is going “OK”; however, he still described tingling and burning pain radiating to his leg and foot on
both sides. After his physical therapy ended, Plaintiff reported no improvement to Dr. Yoon.
On January 14, 2010, Plaintiff presented to Dr. Nchewkube for complaints of low back pain,
and the doctor noted spinal tenderness and a negative straight leg raise test.
In testimony at the hearing on February 26, 2010, Plaintiff described pain shooting through
his right leg and groin area down to his feet.
B. The ALJ’s Decision
The ALJ found that Plaintiff’s degenerative changes of the lumbar spine constituted a severe
impairment under the regulations. He determined that Plaintiff’s impairments did not meet or
medically equal a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. He then found
that Plaintiff was capable of performing a restricted range of sedentary work. He concluded that
Plaintiff could perform a significant number of jobs in the national economy and, therefore, was not
disabled.
STANDARD OF REVIEW
The Social Security Act authorizes judicial review of the final decision of the agency and
indicates that the Commissioner’s factual findings must be accepted as conclusive if supported by
substantial evidence. 42 U.S.C. § 405(g). Thus, a court reviewing the findings of an ALJ will
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reverse only if the findings are not supported by substantial evidence or if the ALJ has applied an
erroneous legal standard. See Briscoe v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005). Substantial
evidence consists of “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); Schmidt v. Barnhart, 395
F.3d 737, 744 (7th Cir. 2005) (quoting Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003)).
A court reviews the entire administrative record but does not reconsider facts, re-weigh the
evidence, resolve conflicts in evidence, decide questions of credibility, or substitute its judgment
for that of the ALJ. See Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir. 2005); Clifford v. Apfel, 227
F.3d 863, 869 (7th Cir. 2000); Butera v. Apfel, 173 F.3d 1049, 1055 (7th Cir. 1999). Thus, the
question upon judicial review of an ALJ’s finding that a claimant is not disabled within the meaning
of the Social Security Act is not whether the claimant is, in fact, disabled, but whether the ALJ’s
findings are supported by substantial evidence and under the correct legal standard. See Lopez v.
Barnhart, 336 F.3d 535, 539 (7th Cir. 2003); Schmidt v. Apfel, 201 F.3d 970, 972 (7th Cir. 2000).
If an error of law is committed by the Commissioner, then the “court must reverse the decision
regardless of the volume of evidence supporting the factual findings.” Binion v. Chater, 108 F.3d
780, 782 (7th Cir. 1997).
An ALJ must articulate, at a minimum, his analysis of the evidence in order to allow the
reviewing court to trace the path of his reasoning and to be assured that the ALJ considered the
important evidence. See Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002); Diaz v. Chater, 55
F.3d 300, 307 (7th Cir. 1995); Green v. Shalala, 51 F.3d 96, 101 (7th Cir. 1995). The ALJ is not
required to address “every piece of evidence or testimony in the record, [but] the ALJ’s analysis
must provide some glimpse into the reasoning behind [the] decision to deny benefits.” Zurawski v.
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Halter, 245 F.3d 881, 888 (7th Cir. 2001). The ALJ must build an “accurate and logical bridge from
the evidence to his conclusion so that, as a reviewing court, we may assess the validity of the
agency’s ultimate findings and afford a claimant meaningful judicial review.” Young v. Barnhart,
362 F.3d 995, 1002 (7th Cir. 2004) (quoting Scott, 297 F.3d at 595); see also Hickman v. Apfel, 187
F.3d 683, 689 (7th Cir. 1999) (citing Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996)).
DISABILITY STANDARD
To be eligible for disability benefits, a claimant must establish that he suffers from a
“disability” as defined by the Social Security Act and regulations. The Act defines “disability” as
an inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result in death or that has lasted or can be
expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A),
1382c(a)(3)(A). To be found disabled, the claimant’s impairment must not only prevent him from
doing his previous work, but considering his age, education, and work experience, it must also
prevent him from engaging in any other type of substantial gainful activity that exists in significant
numbers in the economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B); 20 C.F.R. §§ 404.1520(e)-(f),
416.920(e)-(f).
When a claimant alleges a disability, Social Security regulations provide a five-step inquiry
to evaluate whether the claimant is entitled to benefits. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
The steps are: (1) Is the claimant engaged in substantial gainful activity? If yes, the claimant is not
disabled, and the claim is denied; if no, the inquiry proceeds to Step 2; (2) Does the claimant have
an impairment or combination of impairments that are severe? If not, the claimant is not disabled,
and the claim is denied; if yes, the inquiry proceeds to Step 3; (3) Do(es) the impairment(s) meet or
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equal a listed impairment in the appendix to the regulations? If yes, the claimant is automatically
considered disabled; if not, then the inquiry proceeds to Step 4; (4) Can the claimant do the
claimant’s past relevant work? If yes, the claimant is not disabled, and the claim is denied; if no,
then the inquiry proceeds to Step 5; (5) Can the claimant perform other work given the claimant’s
residual functional capacity, age, education, and experience? If yes, then the claimant is not
disabled, and the claim is denied; if no, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(i)-(v),
416.920(a)(4)(i)-(v); see also Scheck v. Barnhart, 357 F.3d 697, 699-700 (7th Cir. 2004).
At the fourth and fifth steps, the ALJ must consider an assessment of the claimant’s residual
functional capacity (“RFC”). “The RFC is an assessment of what work-related activities the
claimant can perform despite [his] limitations.” Young, 362 F.3d at 1000. The ALJ must assess the
RFC based on all the relevant evidence of record. Id. at 1001 (citing 20 C.F.R. § 404.1545(a)(1)).
The claimant bears the burden of proving steps one through four, whereas the burden at step five is
on the ALJ. Id. at 1000; see also Zurawski, 245 F.3d at 886; Knight v. Chater, 55 F.3d 309, 313 (7th
Cir. 1995).
ANALYSIS
Plaintiff argues that the ALJ committed reversible error by inadequately analyzing the
evidence at step three and concluding that Plaintiff’s impairments do not meet or equal Listing
1.04A in 20 CFR Part 404, Subpart P, Appendix 1 without any explanation. The Commissioner
responds that substantial evidence in the record supports the ALJ’s decision.
The determination of whether a claimant suffers from a listed impairment occurs at steps two
and three of the ALJ’s analysis. Step two of the ALJ’s analysis requires an examination of whether
the claimant has an impairment or combination of impairments that are severe. See 20 C.F.R. §§
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404.1520(a)(4)(ii), 416.920(a)(4)(ii). A medically determinable impairment or combination of
impairments is severe if it significantly limits an individual’s physical or mental ability to do basic
work activities. See 20 C.F.R. §§ 404.1520(c), 416.920(c). Once the ALJ has evaluated whether
the claimant has a severe impairment or combination of impairments, the ALJ proceeds to step three.
At step three, the ALJ must determine whether the claimant’s impairments meet an impairment
listed in the appendix to the social security regulations. See 20 C.F.R. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). An individual suffering from an impairment that meets the description of a listing
or its equivalent is conclusively presumed disabled. See Bowen v. Yuckert, 482 U.S. 137, 141
(1987).
“To meet or equal a listed impairment, the claimant must satisfy all of the criteria of the
listed impairment,” and he “bears the burden of proving his condition meets or equals a listed
impairment.” Maggard v. Apfel, 167 F.3d 376, 380 (7th Cir. 1999) (citing Pope v. Shalala, 998 F.2d
473, 480 (7th Cir. 1993); Anderson v. Sullivan, 925 F.2d 220, 223 (7th Cir. 1991); Steward v.
Bowen, 858 F.2d 1295, 1297 n.2 (7th Cir. 1988)); see also Ribaudo v. Barnhart, 458 F.3d 580, 583
(7th Cir. 2006). An impairment that manifests only some of the criteria will not qualify, regardless
of its severity. See Sullivan v. Zebley, 493 U.S. 521, 530 (1990). The decision “[w]hether a
claimant’s condition equals a listed impairment is strictly a medical determination.” Hickman, 187
F.3d at 688 (citing 20 C.F.R. §§ 404.1526(b), 416.926(b)).
In the present case, the ALJ considered whether Plaintiff met Listing 1.04, which provides,
in relevant part:
1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal
arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc
disease, facet arthritis, vertebral fracture), resulting in compromise of
a nerve root (including the cauda equina) or the spinal cord. With:
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A. Evidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of motion of the spine,
motor loss (atrophy with associated muscle weakness or muscle
weakness) accompanied by sensory or reflex loss and, if there is
involvement of the lower back, positive straight-leg raising test
(sitting and supine);
....
20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.04A.1
In his decision, the ALJ’s step three finding, found in the heading of Finding #4s, provides:
“[Plaintiff] does not have an impairment or combination of impairments that meets or medically
equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).” AR 14. The text of the
section under that heading provides, in full:
Despite [Plaintiff’s] diagnosed impairment, the medical evidence
does not document listing level severity and no acceptable medical
source has mentioned findings equivalent in severity to the criteria of
any listed impairment, either individually or in combination. In
making this finding, I gave particular consideration to listing 1.04
(Disorders of the spine).
Id.
Plaintiff argues that, although the ALJ notes evidence regarding Plaintiff’s impairments
throughout the decision, the ALJ provides no analysis as to why the evidence does not support a
listing level impairment. As noted above, an “ALJ must ‘sufficiently articulate his assessment of
the evidence to assure us that [he] considered the important evidence . . . [and to enable ] us to trace
the path of [his] reasoning.’” Hickman, 187 F.3d at 689 (quoting Rohan v. Chater, 98 F.3d 966, 971
1
Because Plaintiff asserts in his brief that Listing 1.04A is the applicable listing, the Court cites only that
portion of Listing 1.04.
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(7th Cir. 1996)). Plaintiff is correct that the ALJ offers no detailed explanation for his determination
that Plaintiff does not meet the specific requirements of Listing 1.04, and the ALJ does not identify
the Listing 1.04 requirements nor does he note what findings were present or what findings were
missing in the context of the listing requirements.
Although an element-by-element analysis of Listing 1.04A and why Plaintiff’s medical
evidence does not satisfy each element would have been preferable, the Court finds that, in this case,
the failure to specifically discuss the elements of Listing 1.04 in combination with the medical
evidence is harmless because the ALJ finds at step three that no acceptable medical evidence
demonstrates a listing equivalence, and later in his decision, the ALJ discusses the medical evidence
relevant to the Listing 1.04 requirements that supports his step three holding. Notably, Plaintiff
agrees that an ALJ is not required to address every piece of evidence nor is an ALJ required to place
his discussion of the evidence in the section of the decision regarding the listings or to repeat his
factual analysis. Moreover, Plaintiff has not demonstrated, as is his burden, that he meets or equals
the requirements of Listing 1.04. In other words, the Court finds that remand for correction of the
ALJ’s failure to properly explain his step three finding would not result in a different outcome. See
McKinzey v. Astrue, 641 F.3d 884, 892 (7th Cir. 2011) (“[The court] will not remand a case to the
ALJ for further specification where we are convinced that the ALJ will reach the same result.”);
Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir. 2010) (“If it is predictable with great confidence that
the agency will reinstate its decision on remand because the decision is overwhelmingly supported
by the record though the agency’s original opinion failed to marshal that support, then remanding
is a waste of time.”).
Discussing the medical evidence in the context of the residual functional capacity assessment
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and his credibility analysis, the ALJ noted several examinations that showed listing criteria had not
been met. In his decision, the ALJ noted that the July 2008 MRI showed degenerative changes and
mild narrowing and mild neural formainal narrowing and that “this may affect his L5 nerve
laterally.” AR 15. The ALJ noted both the December 14, 2006 consultative examination as well
as the October 14, 2008 consultative examination, both by Dr. Perez. The ALJ noted that, at the
October 14, 2008 consultative examination, Plaintiff’s straight leg raising was positive at 60 degrees.
However, the ALJ also noted that Plaintiff’s most recent straight leg raising results assessed by Dr.
Nchekwube in January 2010 were negative. The ALJ then noted that, at the October 14, 2008
examination, Dr. Perez observed that Plaintiff was able to get on and off the examination table
without assistance, and that Plaintiff was able to stand on one leg. The ALJ further noted that
Plaintiff’s overall range of motion was normal, with decreased range of motion in the lumbar area.
The ALJ noted that Plaintiff had no muscle atrophy and that his grip strength was within normal
limits. The ALJ also noted that Dr. Perez indicated that Plaintiff’s tandem walk was slow, that he
had moderate difficulty squatting and mild difficulty standing on his heels and toes.
Although the ALJ did not specifically discuss all of the evidence of record, he discussed
enough of the evidence in his decision to support his step three finding. This is not a case in which
the Commissioner’s attorney has constructed the ALJ’s reasoning for him or has mentioned grounds
for the decision not articulated by the ALJ. Thus, the Commissioner’s arguments that the ALJ’s
decision is supported by substantial evidence does not violate the Chenery principle, as suggested
by Plaintiff. See SEC v. Chenery Corp., 318 U.S. 80, 87 (1943) (“The grounds upon which an
administrative order must be judged are those upon which the record discloses that its action was
based.”); see also Martinez v. Astrue, 630 F.3d 693, 694 (7th Cir. 2011) (quoting Spiva v. Astrue,
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628 F.3d 346, 348 (7th Cir. 2010) (“[I]n defiance of the principle of [Chenery], the Justice
Department’s lawyers who defend denials of disability benefits often rely heavily on evidence not
(so far as appears) relied on by the administrative law judge, and defend the tactic by invoking an
overbroad conception of harmless error.”)).
Plaintiff’s attempt to show that the ALJ’s error is not harmless by presenting evidence
“consistent” with Listing 1.04(A) fails. Pl. Br., p. 9. Listing 1.04 begins with an opening set of
criteria. The first requirement is that the claimant have a disorder of the spine, one of which is
degenerative disc disease. The ALJ found that Plaintiff has a severe impairment of degenerative
changes of the lumbar spine. The opening paragraph also requires that the disorder of the spine
result in compromise of a nerve root or the spinal cord. In support of this requirement, Plaintiff
points to the July 2008 MRI and the March 25, 2009 nerve conduction study and suggests that they
“show compromise of a nerve root as described in the introduction to listing 1.04.” Pl. Br., p. 9.
However, these tests do not mention nerve root compression or compromise. In fact, the impression
of the July 2008 MRI was “degenerative changes in the lumbar spine, worse at L4-L5 and L5-S1.
Mild lateral recess narrowing at L4-L5. Mild neural foraminal narrowing greater on the left at L5
which may abut the L5 nerve laterally.” AR 299. Similarly, the result of the March 25, 2009 nerve
conduction study for the “lower extremity” provided only: “Based on the nerve conduction study
data, consider a mild bilateral L5 radiculopathy.” AR 398. Plaintiff offers no evidence definitively
showing compromise of a nerve root or nerve root compression.
In addition to the requirements of the opening paragraph of Listing 1.04, Plaintiff then must
also show:
A. Evidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of motion of the spine,
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motor loss (atrophy with associated muscle weakness or muscle
weakness) accompanied by sensory or reflex loss and, if there is
involvement of the lower back, positive straight-leg raising test
(sitting and supine); . . . .
20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.04(a). For neuro-anatomic distribution of pain, Plaintiff
notes that he had an MRI of the lumbar spine, a nerve conduction study, and symptoms “consistent
with” nerve root compression characterized by neuro-anatomic distribution of pain, citing AR 41-42,
299, 303, 351, 371, 398, 437. Pages 41 and 42 are Plaintiff’s own testimony that he has pain
shooting through his nerve, down through his legs and his hip, page 351 is the first page of
Plaintiff’s report of mental status examination by Dr. McKian and contains only Plaintiff’s
statements to Dr. McKian regarding his impairments, and Page 437 is the first page of Dr. Yoon’s
April 28, 2009 report from the initial pain consultation and reports Plaintiff’s subjective complaints
of pain radiating to both sides. Non-medical evidence may not be considered at step three. See
Hickman, 187 F.3d at 688. Pages 299 and 398 are the results of the MRI and the nerve conduction
study discussed above. On page 303, Dr. Perez notes under her review of neurological systems:
“Numbness in the left leg. No problems moving his leg.” AR 303. Page 371 is from Dr. Perez’s
October 2008 report titled “Disability History and Physical Examination,” and contains the
following neurological review: “Some numbness in the right and left leg, very minimal. It used to
be worse, but it has improved.” AR 371.
For limitation of motion of the spine, Plaintiff cites evidence that he has decreased range of
motion of his spine, citing AR 302, 369, 438. Page 302 is a December 19, 2006 Range of Motion
Chart completed by Dr. Perez. Page 369 is an October 14, 2008 Range of Motion Chart completed
by Dr. Perez. Page 438 is Dr. Yoon’s initial examination, in which he found “[range of motion] is
moderately decreased in all direction[s].” AR 438.
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For motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied
by sensory or reflex loss, Plaintiff notes that Dr. Yoon noted muscle weakness and prescribed a cane
for it. However, he recognizes that Dr. Atassi noted no motor weakness but weak deep tendon
reflexes, citing AR 419, 438, 451, 319. Pages 419 and 438, which are from Dr. Yoon’s September
and May 2009 reports respectively, each provide that his “[s]trength of back is decreased.” AR 419,
438. Page 451 is a prescription by Dr. Yoon for a cane with a diagnosis of “lower extremity
weakness.” Finally, page 319 is a letter from Dr. Behzad Aalaei to Dr. Nchekwube, dated June 14,
2007, which notes that Plaintiff complains of paresthesia of left lower extremity and of muscle
spasm in legs and lower back; however, Dr. Aalaei’s physical examination of Plaintiff’s neurological
system found: “No sensory loss. No motor weakness. Straight leg raise is positive left at 45
degrees. Babinski negative bilaterally. Deep tendon reflexes are weak bilaterally.” AR 319.
For the requirement that there be positive straight leg tests when there is involvement of the
lower back, as in this case, Plaintiff notes that numerous doctors noted positive straight leg tests, but
also acknowledge that some have been negative, citing AR 304 (12/14/06 - positive), 319 (6/14/07 positive), 334 (9/11/08 - positive), 373 (10/14/08 - positive), 455 (1/14/10 -negative).
Although Plaintiff has established some of the elements of Listing 1.04A, Plaintiff has not
established all of them through acceptable medical evidence. Moreover, while Plaintiff correctly
cites the findings of doctors regarding some elements, Plaintiff fails to note that those same doctors
found the absence of other required criteria. For example, during both consultative examinations
in which Dr. Perez noted decreased range of motion of the spine and positive straight leg raising,
Dr. Perez also found no spinal anatomic abnormalities, full muscle strength, symmetrical or normal
reflexes, no atrophy, and almost entirely normal or intact sensation.
17
Finally, as noted above, the two reviewing state agency doctors in Fall/Winter 2008 found
on the Disability Determination and Transmittal forms that Plaintiff did not meet or equal the
listings. See Scheck v. Barnhart, 357 F.3d 697, 700 (7th Cir. 2004) (“[The Disability Determination
and Transmittal forms” conclusively establish ‘that consideration by a physician . . . designated by
the Commissioner has been given to the question of medical equivalence at the initial and
reconsideration levels of administrative review.’”) (quoting Farrell v. Sullivan, 878 F.2d 985, 990
(7th Cir. 1989)). In his step three finding, the ALJ recognizes that “no acceptable medical source
has mentioned findings equivalent in severity to the criteria of any listed impairment.” AR 14. In
his RFC assessment, the ALJ specifically discusses in detail the October 17, 2008 Physical Residual
Functional Capacity Assessment, in which Dr. Brill opined that Plaintiff could perform a limited
range of medium work (the ALJ assigned “some” weight to this opinion), and noted the December
30, 2008 affirmation of the assessment by Dr. Whitley. Dr. Brill’s opinion was incorporated in the
October 17, 2008 Disability Determination and Transmittal Form indicating that Plaintiff was not
disabled. Plaintiff does not contest or controvert these opinions. A review of the record
demonstrates that no treating or examining doctors included findings that Plaintiff met or equaled
all of the Listing 1.04A criteria, and Plaintiff does not identify any such records.
Because the Court is convinced that the ALJ would reach the same step three result, the
Court denies Plaintiff’s request for remand.
CONCLUSION
Based on the foregoing, the Court hereby DENIES the relief requested in Plaintiff’s Opening
Brief [DE 19].
SO ORDERED this 4th day of September, 2012.
18
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT
cc:
All counsel of record
19
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