Stuckey v. Commissioner of Social Security

Filing 18

OPINION AND ORDER GRANTING relief sought in 10 Pla's Brief, REVERSING the final decision of the Commissioner of Social Security, and REMANDING this matter for further proceedings consistent with this Opinion and Order. Signed by Magistrate Judge Paul R Cherry on 7/16/2015. (lns)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
AARON STUCKEY,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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Cause No.: 2:14-CV-246-PRC

OPINION AND ORDER
This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Aaron Stuckey on
July 16, 2014, and Plaintiff’s Brief [DE 10], filed on November 4, 2014. The Commissioner filed
a response on February 12, 2015. No reply has been filed, and the time to do so has passed.
I. Background
Plaintiff filed applications with the Agency on September 27, 2012, for disability insurance
benefits and supplemental security income, alleging that he had been disabled since July 11, 2012.
The Agency denied these claims on January 3, 2013, and denied them again upon reconsideration
on January 28, 2013. Plaintiff then sought a hearing before an Administrative Law Judge (ALJ),
which took place on September 30, 2013. Plaintiff’s main representative was Mario Davila, a nonattorney, but he was represented at the hearing by Davila’s associate, Jill Kirshner. (It is unclear
from the record whether Ms. Kirshner is an attorney.)
On December 17, 2013, ALJ Mario Silva issued a written decision denying Plaintiff’s claims
for disability benefits, making the following findings.

1.

The claimant meets the insured status requirements of the
Social Security Act through December 31, 2015.

2.

The claimant has not engaged in substantial gainful activity

since July 11, 2012, the alleged onset date.
3.

The claimant has the following severe impairments: insulindependent diabetes mellitus, coronary artery disease, and
hypertension.

4.

The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of
one of the listed impairments in 20 C.F.R. Part 404, Subpart
P, Appendix 1.

5.

After careful consideration of the entire record, the
undersigned finds that the claimant has the residual functional
capacity to perform light work as defined in 20 C.F.R.
404.1567(b) and 416.967(b) except that the claimant can
never climb ladders, ropes, or scaffolds, but can occasionally
climb ramps and stairs; and occasionally balance, stoop,
kneel, and crouch, but never crawl. The claimant can
frequently handle and finger with his right upper extremity.
The claimant is limited to work that can be performed on
even terrain and non-slippery surfaces. The claimant must
avoid even moderate exposure to extreme heat and extreme
cold. The claimant must avoid all exposure to hazards,
including dangerous moving machinery and unprotected
heights. The claimant must avoid work that requires driving
as a function of the job.

6.

The claimant is capable of performing past relevant work as
a card dealer. This work does not require the performance of
work-related activities precluded by the claimant’s residual
functional capacity.

7.

The claimant has not been under a disability, as defined in the
Social Security Act, from July 11, 2012, through the date of
this decision.

(AR 23–30). Plaintiff then sought review before the Agency’s Appeals Council, which denied his
request on May 28, 2014, leaving the ALJ’s decision as the final decision of the Commissioner. See
20 C.F.R. §§ 404.981, 416.1481. On July 16, 2014, Plaintiff filed this civil action pursuant to 42
U.S.C. §§ 405(g) and 1383(c)(3) for review of the Agency’s decision.

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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).
II. 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 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.” 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 “uses
the correct legal standards and the decision is supported by substantial evidence.” Roddy v. Astrue,
705 F.3d 631, 636 (7th Cir. 2013) (citing O’Connor-Spinner v. Astrue, 627 F.3d 614, 618 (7th Cir.
2010); Prochaska v. Barnhart, 454 F.3d 731, 734–35 (7th Cir. 2006); Barnett v. Barnhart, 381 F.3d

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664, 668 (7th Cir. 2004)). “[I]f the Commissioner commits an error of law,” the Court may reverse
the decision “without regard to the volume of evidence in support of the factual findings.” White v.
Apfel, 167 F.3d 369, 373 (7th Cir. 1999) (citing Binion v. Chater, 108 F.3d 780, 782 (7th Cir.
1997)).
At a minimum, an ALJ must articulate 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). An ALJ must
“‘build an accurate and logical bridge from the evidence to [the] conclusion’ so that [a reviewing
court] may assess the validity of the agency’s final decision and afford [a claimant] meaningful
review.” Giles v. Astrue, 483 F.3d 483, 487 (7th Cir. 2007) (quoting Scott, 297 F.3d at 595)); see
also O’Connor-Spinner, 627 F.3d at 618 (“An ALJ need not specifically address every piece of
evidence, but must provide a ‘logical bridge’ between the evidence and his conclusions.”); Zurawski
v. Halter, 245 F.3d 881, 889 (7th Cir. 2001) (“[T]he ALJ’s analysis must provide some glimpse into
the reasoning behind [the] decision to deny benefits.”).
III. 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

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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 two; (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 three; (3) Do(es) the impairment(s) meet
or 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 four; (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 five; (5) Can the claimant perform other work given the claimant’s
residual functional capacity (“RFC”), 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 steps four and five, the ALJ must consider an assessment of the claimant’s RFC. The RFC
“is an administrative assessment of what work-related activities an individual can perform despite
[his] limitations.” Dixon v. Massanari, 270 F.3d 1171, 1178 (7th Cir. 2001). The RFC should be
based on evidence in the record. Craft v. Astrue, 539 F.3d 668, 676 (7th Cir. 2008) (citing 20 C.F.R.

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§ 404.1545(a)(3)). The claimant bears the burden of proving steps one through four, whereas the
burden at step five is on the ALJ. Zurawski, 245 F.3d at 886; see also Knight v. Chater, 55 F.3d 309,
313 (7th Cir. 1995).
IV. Analysis
The ALJ gave little weight to the medical opinion evidence before him, rejecting both the
opinions of the state agency consulting physicians, who said that Plaintiff did not have a severe
physical impairment, as well as the opinion of Plaintiff’s treating doctor, Dr. Adolphys Anekwe,
who said that Plaintiff was disabled. Plaintiff contends that this created an evidentiary deficit that
the ALJ papered over with his own unsupported opinion. And, more fundamentally, he argues that
the ALJ put himself in this position by first erroneously concluding that Dr. Anekwe’s opinion was
inconsistent with the record.
At first glance, this second point doesn’t make much sense because, as the ALJ noted, a
number of the limitations put forward in Dr. Anekwe’s opinion were in fact unsupported by the rest
of the record. For example, Dr. Anekwe opined that Plaintiff could not sit for more than three hours
total during an eight-hour work day, but there were no complaints in the record of trouble sitting.
Plaintiff doesn’t address this or other apparent inconsistencies. Instead, he points out that Dr.
Anekwe’s opinion was based on his diagnoses of degenerative disc disease of the cervical spine,
chronic small vessel disease of the brain secondary to ischemia in his brain, and transient ischemic
attack secondary to accelerated hypertension.1 Dr. Anekwe explained that these diagnoses were

1

Ischemia is a “[l]ocal loss of blood supply due to mechanical obstruction (mainly arterial narrowing or
disruption) of the blood vessel.” Stedman’s Medical Dictionary 1001 (28th ed. 2006). Transitory ischemic attacks,
sometimes called mini-strokes, are caused by a blood clot blocking the blood supply to part of the brain. Transient
Ischemic Attack, The Mayo Clinic, http://www.mayoclinic.org/diseases-conditions/transient-ischemic-attack/basics/
definition/con-20021291.

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based on objective medical testing, specifically a CT scan and MRI of the brain as well as an MRI
of the cervical spine and unspecified lab tests and hospital admissions.
But, as the Commissioner points out, there are no brain imaging records, no evidence of
cervical complaints, and no relevant hospital records in the transcript. The Commissioner argues that
this lack of evidence means that it was reasonable for the ALJ to give Dr. Anekwe’s opinion little
weight. There are two problems with this. First, this argument violates the Chenery doctrine because
it defends the ALJ’s decision on different grounds than those articulated by the ALJ. See Kastner
v. Astrue, 697 F.3d 642, 648 (7th Cir. 2012). Second, it raise the deeper and more troubling issue
of whether the record was complete.
It is true that those seeking benefits bear the burden of proving their disability, but the ALJ
hearing a case must nevertheless “develop a full and fair record.” Nelms v. Astrue, 553 F.3d 1093,
1098 (7th Cir. 2009) (citing Smith v. Apfel, 231 F.3d 433, 437 (7th Cir. 2000); Thompson v. Sullivan,
933 F.2d 581, 585 (7th Cir. 1991)); 20 C.F.R. § 416.912. But reviewing courts are deferential to the
“reasoned judgment of the of the Commissioner on how much evidence to gather, even when the
claimant lacks representation.” Id.2 In order to justify remand, the plaintiff must show that there was
a significant omission—that is, an omission that was prejudicial. Id.
The missing evidence in this case was noted by the Commissioner, not by Plaintiff. And
there is no reply to clarify things on this point. In other circumstances, this might justify deeming
the issue waived. But the gap here is so significant that a finding that the ALJ failed to develop a full
and fair record, and likewise did not adequately evaluate Dr. Anekwe’s opinion, is warranted.
How could the ALJ evaluate whether that opinion, which went to the central issues in this
2
As mentioned above, it is unclear whether Plaintiff’s representative at the hearing, Jill Kirshner, is an attorney,
though her deportment was what one would expect from a trained attorney.

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case, was “well supported by medical findings and not inconsistent with other substantial evidence
in the record” without including in that record the medical evidence relied on by Dr. Anekwe?
Gudgel, 345 F.3d at 470 (citing 20 C.F.R. § 404.1527(d)(2)). Not only was the gap left unfilled, but
there is no indication that the ALJ considered the fact that this evidence was missing. A more
thorough treatment was in order, and the Court therefore remands this case so that the Agency can
either track down the missing records or obtain an updated opinion from Dr. Anekwe, along with
supporting objective medical evidence, in preparation for a new hearing.
On remand, the ALJ should also provide more specific support for his RFC decision. As
Plaintiff notes, the ALJ gave little weight to all the relevant medical opinion evidence before him.
In crafting the RFC analysis, the ALJ cited to Plaintiff’s testimony and to medical records. But these
records say little about the type of restrictions that would be warranted, and their significance was
never explained. Cf. Suide v. Astrue, 371 F. App’x 684, 689–90 (7th Cir. 2010).
The Court also notes that it’s unclear what the ALJ meant when he said that Dr. Anekwe’s
prior findings that Plaintiff’s condition was stable and that Plaintiff was not compliant with
medication were inconsistent with Dr. Anekwe’s opinion statement. If this remains an issue on
remand, it should be explained in greater detail and in compliance with the applicable legal
standards.
Plaintiff also objects to the ALJ’s decision to find him “not entirely credible.” (AR 27). An
ALJ is not required to give full credit to every statement of pain made by the claimant or to find a
disability each time a claimant states he is unable to work. See Rucker v. Chater, 92 F.3d 492, 496
(7th Cir. 1996). However, Ruling 96-7p provides that a claimant’s statements regarding symptoms
or the effect of symptoms on his ability to work “may not be disregarded solely because they are not

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substantiated by objective evidence.” SSR 96-7p, 1996 WL 374186, at *6 (Jul. 2, 1996). “Because
the ALJ is ‘in the best position to determine a witness’s truthfulness and forthrightness . . . this court
will not overturn an ALJ’s credibility determination unless it is ‘patently wrong.’” Shideler v.
Astrue, 688 F.3d 306, 310–11 (7th Cir. 2012) (quoting Skarbek v. Barnhart, 390 F.3d 500, 504–05
(7th Cir. 2004)); see also Prochaska, 454 F.3d at 738.
Plaintiff notes that, in evaluating credibility, the ALJ summarized some of Plaintiff’s
testimony and some parts of the medical evidence, but he contends that the ALJ nevertheless “failed
to specifically identify any reasons why [Plaintiff’s] testimony was not credible.” DE 10 at 13.
Plaintiff argues there is no indication that the ALJ weighed his testimony with regard to the factors
listed in 20 C.F.R. § 416.929(c)(3) and that the ALJ “failed to give a single cogent reason for
finding” that the Plaintiff’s testimony lacked credibility. DE 10 at 13. As far as the Court can tell,
Plaintiff’s sole argument is that the ALJ didn’t explain himself enough.
This argument is unpersuasive. Plaintiff does not point to any specific portions of the record
that the ALJ failed to consider. And far from leaving his conclusion “wholly unexplained,” the ALJ
included a lengthy discussion of Plaintiff’s testimony as well as a number of medical records. Id.
The analysis listed Plaintiff’s activities of daily living as well as his symptoms and treatment,
including his medications. It concluded that portions of Plaintiff’s testimony were not supported by
the medical records, that his reports to the doctors who had seen him were at points inconsistent with
his alleged symptoms, and it suggested that Plaintiff was able to do a greater number of activities
of daily living than one would expect from someone suffering to the extent Plaintiff has alleged.
Contrary to Plaintiff’s contention, the determination was sufficiently explained. Plaintiff has
therefore failed to show that the credibility determination was “patently wrong.”

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IV. Conclusion
For these reasons, the Court GRANTS the relief sought in Plaintiff’s Brief [DE 10],
REVERSES the final decision of the Commissioner of Social Security, and REMANDS this matter
for further proceedings consistent with this Opinion and Order.
SO ORDERED this 16th day of July, 2015.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT

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