Lipscomb v. Commissioner of Social Security

Filing 27

OPINION AND ORDER: The Court hereby GRANTS the Plaintiff's Brief in Support of Reversing the Decision of the Commissioner of Social Security 18 , REVERSES the final decision of the Commissioner of Social Security and REMANDS this matter for further proceedings consistent with this Opinion and Order. Signed by Magistrate Judge Paul R Cherry on 8/18/2017. (jss)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
KENNETH E. LIPSCOMB,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of the
Social Security Administration,
Defendant.

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CAUSE NO.: 2:16-CV-134-PRC

OPINION AND ORDER
This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Kenneth E.
Lipscomb on April 21, 2016, and Plaintiff’s Brief [DE 18], filed by Plaintiff on October 17, 2016.
Plaintiff requests that the January 23, 2015 decision of the Administrative Law Judge denying his
claim for disability insurance benefits be reversed and remanded for further proceedings. On
December 9, 2016, the Commissioner filed a response. Plaintiff filed a reply brief on January 26,
2017. For the following reasons, the Court grants Plaintiff’s request for remand.
PROCEDURAL BACKGROUND
Plaintiff filed an application for disability insurance benefits on November 26, 2012, alleging
disability since March 1, 2012. The claim was denied initially and on reconsideration. On April 29,
2013, Plaintiff filed a written request for hearing. On December 1, 2014, Administrative Law Judge
Kimberly S. Cromer (“ALJ”) held a hearing. In attendance at the hearing were Plaintiff, Plaintiff’s
attorney, an impartial medical expert, and an impartial vocational expert. On January 23, 2015, the
ALJ issued a written decision denying benefits, making the following findings:
1.
The claimant meets the insured status requirements of the Social Security Act
through March 31, 2016.

2.
The claimant has not engaged in substantial gainful activity since March 1,
2012, the alleged onset date.
3.
The claimant has the following severe impairments: diabetes mellitus, type
II, with macular edema, [tendinitis] of the right shoulder, asthma, borderline
intellectual functioning and affective disorder/anxiety disorder.
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.
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
CFR 404.1567(b) except the claimant should never climb ladders, ropes, or scaffolds,
and could only occasionally crawl. The claimant should only reach overhead with
the right upper dominant extremity occasionally. He could only have concentrated
exposure to temperature extremes, humidity, and respiratory irritants and cannot
engage in any commercial driving. The claimant should avoid all exposure to
dangerous moving machinery and must work on a flat even surface. He is precluded
from working with items smaller than the size of a paperclip or work requiring
peripheral acuity. The claimant could only occasionally look at a computer screen.
In terms of his mental capacity, the claimant is limited to simple, routine work
involving only occasional changes to the work setting and no fast-paced, assembly
line work but he could do work at a variable rate.
6.

The claimant is unable to perform any past relevant work.

7.
The claimant was born [in 1961] and was 50 years old, which is defined as
an individual closely approaching advanced age, on the alleged disability onset date.
8.
The claimant has at least a high school education and is able to communicate
in English.
9.
Transferability of job skills is not an issue in this case because the claimant’s
past relevant work is unskilled.
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.
11.
The claimant has not been under a disability, as defined in the Social Security
Act, from March 1, 2012, through the date of this decision.
(AR at 11-26).
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The Appeals Council denied Plaintiff’s request for review, leaving the ALJ’s decision the
final decision of the Commissioner. See 20 C.F.R. § 404.981. Plaintiff filed this civil action pursuant
to 42 U.S.C. § 405(g) for review of the Agency’s decision.
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).
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, 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

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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 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 her analysis of the evidence in order to allow the
reviewing court to trace the path of her 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 [the] 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.”).
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

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expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 423(d)(1)(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); 20 C.F.R. § 404.1520(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). 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 no, 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 no, 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);
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 885-86; see also Knight v. Chater, 55 F.3d
309, 313 (7th Cir. 1995).
ANALYSIS
In his appeal, Plaintiff argues that the ALJ failed to consider Impairment Listing 12.05C,
improperly addressed conflicting evidence between medical opinions, erred in accounting for
Plaintiff’s limitations in social interaction in determining Plaintiff’s RFC, and failed to meet her
burden at step five. The Court considers each argument in turn.
A. Impairment Listing 12.05C
At step three of the disability evaluation process, the ALJ determines whether a claimant’s
impairments meet or equal the criteria of a Listing of Impairments, and, if they do, the claimant will
be found disabled. 20 C.F.R. § 404.1520(a)(4)(iii). An individual suffering from an impairment that
meets the description of a listing or its equivalent is conclusively presumed to be disabled. Bowen
v. Yuckert, 482 U.S. 137, 141 (1987). In order “[f]or a claimant to show that his impairment matches
a listing, it must meet all of the specified medical criteria.” Sullivan v. Zebley, 493 U.S. 521, 530
(1990). An impairment that manifests only some of the criteria will not qualify, no matter its
severity. Id. A claimant “has the burden of showing that his impairments meet a listing, and he must
show that his impairments satisfy all of the various criteria specified in the listing.” Ribaudo v.
Barnhart, 458 F.3d 580, 583 (7th Cir. 2006) (citing Maggard v. Apfel, 167 F.3d 376, 380 (7th Cir.
1999)). Nevertheless, “[i]n considering whether a claimant’s condition meets or equals a listed
impairment, an ALJ must discuss the listing by name and offer more than a perfunctory analysis of
the listing.” Barnett v. Barnhart, 381 F.3d at 668 (citing Brindisi ex rel. Brindisi v. Barnhart, 315

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F.3d 783, 786 (7th Cir.2002); Scott v. Barnhart, 297 F.3d at 595–96; Steele v. Barnhart, 290 F.3d
936, 940 (7th Cir. 2002)).
Plaintiff asserts that the ALJ failed to consider whether Plaintiff meets Listing 12.05C. The
version of Listing 12.05 in effect on the date of the ALJ’s decision provided, in relevant part,
12.05 Intellectual disability: Intellectual disability refers to significantly subaverage
general intellectual functioning with deficits in adaptive functioning initially
manifested during the developmental period; i.e., the evidence demonstrates or
supports onset of the impairment before age 22.
The required level of severity for this disorder is met when the requirements in A,
B, C, or D are satisfied.
...
C. A valid verbal, performance, or full scale IQ of 60 through 70 and a physical or
other mental impairment imposing an additional and significant work-related
limitation of function;
...
20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.05 (effective Jan. 2, 2015–May 17, 2015).1
The regulation clarifies that, to meet Listing 12.05, an impairment must satisfy both the
diagnostic description in the introductory paragraph and any one of the sets of criteria in A, B, C,
and D. Id. at § 12.00A. Thus, there are four requirements that must be met before a claimant will be
found disabled under Listing 12.05C: “(1) significantly subaverage general intellectual functioning;
(2) deficits in adaptive functioning initially manifested during the developmental period before age
22; (3) a valid verbal, performance, or full scale IQ of sixty through seventy; and (4) a physical or
other mental impairment imposing an additional and significant work-related limitation of function.”

1
Though the Listing has subsequently been amended, the version of the Listing in effect at the time of his
hearing is the applicable version for the Court’s analysis. See Rice v. Barnhart, 385 F.3d 363, 369 n.4 (7th Cir. 2004).

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Adkins v. Astrue, 226 F. App’x 600, 605 (7th Cir. 2007) (citing Maggard, 167 F.3d at 380; 20 C.F.R.
Pt. 404, Subpt. P., App. 1 § 12.05).
In her decision, the ALJ explicitly stated that she considered the following Listings: 1.02b
(major dysfunction of a joint), 1.04 (disorders of the spine), 12.02 (organic mental disorders), and
12.06 (anxiety related disorders). The ALJ nowhere mentions Listing 12.05 by name. In her
discussion of Plaintiff’s RFC, the ALJ notes that “[c]ounsel argues that the claimant is close to
having a listing level mental impairment with this IQ [of 67], but also that he has adapted in the
workplace.” (AR at 24). The ALJ continues,
As noted by Dr. Bucur, adaptive functioning places the claimant within the
borderline intellectual functioning range and I have accommodated these findings by
limiting the claimant to simple, routine work involving only occasional changes to
the work setting and no fast-paced, assembly line work but he could do work at a
variable rate.
Id.
The Commissioner argues that the Plaintiff’s ability to adapt to the workplace is fatal to his
assertion that he meets Listing 12.05C. The ALJ’s discussion of Plaintiff’s adaptation to the work
place takes place in the context of determining Plaintiff’s RFC. The requirement for the Listing,
however, is not that Plaintiff fail completely in adaptive functioning, but that Plaintiff have deficits
in adaptive functioning, which “denotes inability to cope with the challenges of ordinary everyday
life.” Novy v. Astrue, 497 F.3d 708, 710 (7th Cir. 2007). Though the ALJ considered Plaintiff’s
adaptive functioning in determining Plaintiff’s RFC, the Court cannot with confidence say that the
ALJ considered whether the degree of deficit in Plaintiff’s adaptive functioning is severe enough
to meet Listing 12.05C. Plaintiff presented evidence that he took special education classes after
failing the sixth grade, and that he has difficulty comprehending basic information, following

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directions, and organizing information with mathematical data. Plaintiff and his wife both reported
that Plaintiff has difficulty with spoken instructions.
The ALJ did not address Listing 12.05C in her discussion of whether Plaintiff met a Listing.
She did not provide any analysis of 12.05C in that section of the decision and only tangentially
refers to it elsewhere in the decision. She nowhere mentions the requirements of Listing 12.05C.
Remand is required on this basis.
B. Conflicting Medical Opinions
In determining whether a claimant is disabled, the ALJ “will always consider the medical
opinions in [the] case record together with the rest of the relevant evidence . . . received.” 20 C.F.R.
§ 404.1527(b). The ALJ evaluates every medical opinion received, including the opinions of
nonexamining sources such as state agency medical and psychological consultants as well as outside
medical experts consulted by the ALJ. Id. § 405.1527(c), (e)(2). In weighing all opinion evidence,
the ALJ considers several factors and “must explain in the decision the weight given” to each
opinion. 20 C.F.R. § 404.1527(e)(2)(ii), (iii); Scrogham v. Colvin, 765 F.3d 685, 697-98 (7th Cir.
2014); Bauer v. Astrue, 532 F.3d 606, 608 (7th 2008).
Factors the ALJ considers in weighing medical opinion evidence include the examining
relationship, the treatment relationship, the length of the treatment relationship and the frequency
of examination, the nature and extent of the treatment relationship, supportability, consistency,
specialization, and other factors brought to the ALJ’s attention. Id. § 405.1527(c)(1)-(6). “An ALJ
can reject an examining physician’s opinion only for reasons supported by substantial evidence in
the record; a contradictory opinion of a non-examining physician does not, by itself, suffice.”
Gudgel, 345 F.3d at 470.

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Plaintiff contends that the ALJ failed to address why she accepted the opinion of a nonexamining medical source over the opinion of an examining medical source regarding his ability to
reach overhead with his right arm.
In discussing Plaintiff’s ability to reach, the ALJ wrote:
The medical expert notes that there is evidence of [tendinitis], but not a torn tendon.
In fact, the most recent x-ray of the claimant’s right shoulder, dated July 22, 2014,
shows evidence of mild glenohumeral degenerative joint disease. The record reflects
that the claimant noted some improvement in shoulder range of motion after physical
therapy. Regardless, I acknowledge that the claimant has demonstrated a reduced
range of motion of the right shoulder with mild decreased grip strength at 4/5 in all
upper major muscle groups during the consultative examination and at some other
routine examinations. I have accordingly accounted for these limitations within the
residual functional capacity assessment above, including that the claimant should
only reach overhead with the right upper dominant extremity occasionally.
(AR at 20 (citations omitted)).
Later in the decision, in discussing non-examining medical expert Dr. Bernard Stevens’s
opinion, the ALJ does not specifically reference Dr. Stevens’s opinion regarding Plaintiff’s right arm
and shoulder. Similarly, in discussing examining medical expert Dr. J. Smejkal’s opinion, the ALJ
does not specifically reference Dr. Smejkal’s opinion regarding Plaintiff’s right arm and shoulder.
The ALJ gave “great weight” to Dr. Stevens’s opinion and “little weight” to Dr. Smejkal’s opinion.
The ALJ explained that she assigned great weight to Dr. Stevens’s opinion because he is
familiar with the disability program and its rules and had the opportunity to review Plaintiff’s record
and to listen to Plaintiff’s testimony at the hearing. The reasons that the ALJ provided for giving
only little weight to Dr. Smejkal’s opinion are that they are inconsistent with his own examination
findings and the overall evidence of the record. The inconsistencies given by the ALJ relate to
Plaintiff’s ability to stand and walk during the work day and not to any other restrictions.

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The ALJ has provided an insufficient analysis regarding her decision to reject Dr. Smejkal’s
medical opinion. Dr. Smejkal is a consultative examiner, so, like Dr. Stevens, Dr. Smejkal is familiar
with the disability program and its rules. Further, though Dr. Stevens had the opportunity to review
Plaintiff’s record and listen to Plaintiff’s testimony, Dr. Smejkal had the opportunity to examine
Plaintiff. Next, none of the inconsistencies cited by the ALJ relate to Plaintiff’s right arm and
shoulder. Finally, the ALJ’s discussion of Plaintiff’s ability to reach overhead with his right arm is
entirely devoid of any mention of Dr. Smejkal’s opinion that Plaintiff could not reach overhead with
his right arm. The Court cannot trace the ALJ’s reasoning behind her decision to give little weight
to Dr. Smejkal’s opinion and to restrict Plaintiff to occasional overhead reaching with his right arm
instead of no overhead reaching. In fact, the Court cannot determine whether the ALJ considered
this opinion of Dr. Smejkal at all. This provides an independent ground for remand.
C. RFC Determination
Plaintiff argues that his RFC should include a limitation to only superficial social interaction.
In support, Plaintiff cites to the opinion of state agency psychologist Dr. Amy Johnson, to which the
ALJ assigned great weight. Dr. Johnson opined that Plaintiff “appears to be able to tolerate
superficial, casual interactions with others” and “can relate on at least a superficial basis on an
ongoing basis with co-workers and supervisors.” (AR at 392). The Commissioner contends that Dr.
Johnson’s opinion does not limit Plaintiff to these levels of interaction and that the opinion merely
states that Plaintiff is capable of at least this much.
When read in the context of the full Mental Residual Functional Capacity Assessment, in
which Dr. Johnson made the above-quoted statements, it is clear that the Commissioner’s
interpretation is correct. In part I.C. of the assessment, Dr. Johnson opined that Plaintiff is not

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significantly limited in all five abilities listed under the category of social interaction. Further, the
narrative portion, from which the above-quoted statements are taken, indicate that Dr. Johnson is
explaining where she considers Plaintiff’s allegations of difficulty in functioning to be more
restrictive than his actual capabilities. Thus, when Dr. Johnson says that Plaintiff is capable of a
certain level of functioning, in context, she is saying that, despite his allegations of more severe
restrictions, he is capable of at least the level stated by Dr. Johnson and—impliedly—perhaps more.
Dr. Johnson did not restrict Plaintiff to only superficial social interaction, so there is no error in the
ALJ’s lack of inclusion of such a restriction in Plaintiff’s RFC.
D. Step Five
Plaintiff argues that, at step five, the ALJ failed to account for Plaintiff’s vision difficulties
in determining that jobs existing in significant numbers are available to Plaintiff. The ALJ placed
the following conditions in Plaintiff’s RFC due to Plaintiff’s vision difficulties: no exposure to
dangerous moving machinery; work must be on a flat, even surface; no working with objects smaller
than a paperclip; no work requiring peripheral acuity; and only occasional looking at a computer
screen.
Plaintiff asserts that the ALJ was required to discuss the hypothetical questions asked of the
vocational expert regarding Plaintiff’s ability to read font of varying sizes.
Plaintiff’s argument is based on three non-precedential opinions issued by the Northern
District of Illinois: Bailey v. Barnhart, 473 F. Supp. 2d 822 (N.D. Ill. 2006); Sayles v. Barnhart, No.
00 C 7200, 2001 WL 1568850 (N.D. Ill. Dec. 7, 2001); and Connor v. Shalala, 900 F. Supp. 994
(N.D. Ill. 1995). Plaintiff contends that these cases indicate that an ALJ must discuss all hypothetical
questions asked of the vocational expert, even questions that pertain to RFCs other than the RFC

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ultimately assigned to the social security claimant. The cases cited, however, are distinguishable.
These three cases involve situations where the hypothetical questions that were discussed by the
ALJs in their opinions and used at step five do not match the restrictions found in determining the
plaintiffs’ RFCs.
Had the ALJ found that Plaintiff did not have the functional capacity to read 12-point font,
then the ALJ would have needed to discuss the vocational expert’s response to the hypothetical
question containing this restriction. However, the ALJ placed no such restriction on Plaintiff’s RFC.
Notably, Plaintiff only argues that the ALJ erred in not addressing the hypothetical questions with
font restrictions at step five, not in assigning Plaintiff’s RFC without font restrictions. At the RFC
determination stage, the ALJ considered Plaintiff’s testimony that he has intermittent blurred vision
but that he is able to read a newspaper if it is really close to his face and to see a paperclip on the
ground and pick it up. She also considered Plaintiff’s testimony that computer screens are blurry to
him and he cannot clearly make out the words on the screen.
In essence, Plaintiff is asserting that the ALJ needed to discuss testimony from the ALJ that
would have no bearing on whether a person with Plaintiff’s RFC has a significant number of jobs
available to him or her. Plaintiff has not presented the Court with case law—precedential or
otherwise—or any other authority indicating that the ALJ bore the burden to discuss this immaterial
testimony of the vocational expert.
Plaintiff also argues for the first time in his reply brief that 12-point font is smaller than a
paperclip. Even if not waived, this argument would not prevail. The RFC precludes Plaintiff from
working with items smaller than a paperclip. Text may be printed on an item, but is not the item

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itself. There is no inconsistency between the RFC and the question asked of the vocational expert.
Remand is not required due to the asserted error at step five.
CONCLUSION
Based on the foregoing, the Court hereby GRANTS the Plaintiff’s Brief in Support of
Reversing the Decision of the Commissioner of Social Security [DE 18], 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 18th day of August, 2017.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT

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