Spann v. Commissioner of Social Security

Filing 23

OPINION AND ORDER GRANTING the relief sought in the Social Security Opening Brief, REVERSING the final decision of the Commissioner of Social Security, and REMANDING the case for further proceedings. Signed by Magistrate Judge Paul R Cherry on 8/11/2017. (Copy mailed to pro se party)(lns)

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

)
)
)
)
)
)
)
)
)

CAUSE NO.: 2:16-CV-380-PRC

OPINION AND ORDER
This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Cynthia S. Spann
on August 26, 2016, and a Social Security Opening Brief [DE 15], filed by Plaintiff on March 3,
2017. Plaintiff, who is litigating before the Court pro se, requests that the December 24, 2015,
partially favorable decision of the Administrative Law Judge regarding her claims for disability
insurance benefits and supplemental security income be reversed and remanded for further
proceedings. On June 6, 2017, the Commissioner filed a response. Plaintiff has not filed a reply. For
the following reasons, the Court grants Plaintiff’s request for remand.
PROCEDURAL BACKGROUND
Plaintiff filed her application for disability insurance benefits and supplemental security
income on March 12, 2013, alleging disability since October 15, 2007. She later amended her
alleged disability onset date to April 24, 2011. The claim was denied initially and on
reconsideration, and she requested a hearing, which was held before Administrative Law Judge
Mario G. Silva (ALJ) on November 6, 2015. On December 24, 2015, the ALJ issued a partially
favorable decision, making the following findings:
1.
The claimant meets the insured status requirements of the Social Security Act
through December 31, 2011.

2.
The claimant has not engaged in substantial gainful activity since the
amended alleged onset date.
3.
Since the amended alleged onset date of disability, April 24, 2011, the
claimant has had the following severe impairment[s]: cervical and lumbar
degenerative disc disease and COPD/asthma. Beginning on the established onset date
of disability, March 12, 2013, the claimant has had the following severe
impairments: cervical and lumbar degenerative disc disease, bilateral knee
degenerative joint disease, diabetes mellitus, COPD/asthma, depression, and obesity.
4.
Since the amended alleged onset date of disability, April 24, 2011, the
claimant has not had an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1.
5.
After careful consideration of the entire record, the undersigned finds that
prior to March 12, 2013, the date the claimant became disabled, the claimant had the
residual functional capacity to perform light work as defined in 20 CFR 404.1567(b)
and 416.967(b) except that she could only occasionally climb ramps and stairs,
balance, stoop, kneel, crouch, and crawl and never climb ladders, ropes, or scaffolds.
She was unable to operate foot controls bilaterally. She was limited to work that
could be performed on even terrain and on non-slippery surfaces. She could have no
more than occasional exposure to extreme heat, extreme cold, wetness, humidity,
environmental irritants, such as fumes, odors, dusts, or gases, and to hazards,
including dangerous moving mechanical parts or unprotected heights. She required
a job that would allow the use of prescription eyeglasses.
6.
After careful consideration of the entire record, the undersigned finds that
beginning on March 12, 2013, the claimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except that she
can only occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and
crawl and never climb ladders, ropes, or scaffolds. She is unable to operate foot
controls bilaterally. She is limited to work that can be performed on even terrain and
on non-slippery surfaces. She can have no more than occasional exposure to extreme
heat, extreme cold, wetness, humidity, environmental irritants, such as fumes, odors,
dusts, or gases, and to hazards, including dangerous moving mechanical parts or
unprotected heights. She requires a job that would allow the use of prescription
eyeglasses. She is able to understand, remember, and carry out simple instructions;
to make judgments on simple, work-related decisions; and to interact appropriately
with coworkers, supervisors, and the general public. She is able to perform such
activities within a regular schedule and be punctual within customary tolerances.
However, she requires a flexible pace environment (i.e., free of production rate pace

2

where there are no tandem tasks or teamwork where one production step is
dependent upon a prior step).
7.
Prior to March 12, 2013, the claimant was capable of performing past
relevant work as an insurance agent, administrative clerk, and cashier-clerk. This
work did not require the performance of work-related activities precluded by the
claimant’s residual functional capacity.
8.
Beginning on March 12, 2013, the claimant’s residual functional capacity has
prevented the claimant from being able to perform past relevant work.
9.
The claimant was an individual of advanced age on March 12, 2013, the
established disability onset date.
10.
The claimant has at least a high school education and is able to communicate
in English.
11.
The claimant does not have work skills that are transferable to other
occupations within the residual functional capacity defined above.
12.
Since March 12, 2013, considering the claimant’s age, education, work
experience, and residual functional capacity, there are no jobs that exist in significant
numbers in the national economy that the claimant can perform.
13.
The claimant was not disabled prior to March 12, 2013, but became disabled
on that date and has continued to be disabled through the date of this decision.
14.
The claimant was not under a disability within the meaning of the Social
Security Act at any time through December 31, 2011, the date last insured.
(AR 20-33).
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, 416.1481. Plaintiff filed this civil
action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) 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.

3

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
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

4

“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.”).
DISABILITY STANDARD
To be eligible for disability benefits, a claimant must establish that she 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 her from
doing her previous work, but considering her age, education, and work experience, it must also
prevent her from engaging in any other type of substantial gainful activity that exists in significant

5

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 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),
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
her 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.
§ 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).

6

ANALYSIS
Plaintiff argues that the ALJ’s decision should be reversed due to newly-submitted evidence.
The evidence at issue is a note written by Dr. Robert J. Buynak on a letter dated May 7, 2014, a
February 24, 2016 letter from Dr. Buynak, and MRI testing results dated August 10, 2016. The letter
was also submitted to the Appeals Council, so the Court will address the letter separately before
turning to the other two pieces of evidence.
A. Dr. Buynak’s Letter
In describing cases subject to Appeals Council review, the Social Security Regulations that
were in effect at the time the Appeals Council made its decision provided that:
[I]f new and material evidence is submitted, the Appeals Council shall consider the
additional evidence only where it relates to the period on or before the date of the
administrative law judge hearing decision.
20 C.F.R. §§ 404.970(b), 416.1470(b) (1987) (amended 2016). If the newly submitted evidence is
new, material, and time-relevant, “the Appeals Council shall incorporate that evidence into the
administrative record and shall then evaluate that record, including the new and material evidence.”
Stepp v. Colvin, 795 F.3d 711, 721 (7th Cir. 2015) (internal quotation marks omitted) (quoting 20
C.F.R. § 404.970(b)). The Appeals Council will then grant de novo review of the ALJ’s decision if
it determines that, based on the record as supplemented, the ALJ’s conclusions are contrary to the
weight of the evidence. Id.
The Court’s ability to review the Appeals Council’s decision regarding newly submitted
evidence depends on the Appeals Council’s reason for its decision. Id. at 722. If the Appeals Council
determines that the evidence is “non-qualifying”—that is, not new, material, and timerelevant—then the Court has the ability to review for legal error the conclusion that the evidence

7

is non-qualifying. Id. (citing Farrell v. Astrue, 692 F.3d 767, 771 (7th Cir. 2012); Eads v. Sec’y of
the Dep’t of Health & Human Servs., 983 F.2d 815, 817 (7th Cir. 1993)). However, if the Appeals
Council determines that the evidence is qualifying under the regulation but denies de novo review
of the ALJ’s decision because the Appeals Council determines that the record as supplemented does
not demonstrate that the ALJ’s decision was contrary to the weight of the evidence, that decision
to deny review is “discretionary and unreviewable.” Id. (quoting Perkins v. Chater, 107 F.3d 1290,
1294 (7th Cir. 1994)).
The Commissioner argues that the Appeals Council found the letter to be qualifying and
determined that it did not render the ALJ’s decision contrary to the weight of the evidence and, in
the alternative, that the Appeals Council denied review because the letter is not new, material, or
time-relevant and that this determination is correct because the letter is not material.
The Court must first determine whether the Appeals Council found the letter to be qualifying.
Here, the Appeals Council indicated that it received additional evidence from Plaintiff, including
the February 24, 2016 letter from Dr. Buynak. The Appeals Council specifically listed some of the
submitted evidence as not new and some of the submitted evidence as not material. The letter is not
listed in either category. The Court can therefore infer that the Appeals Council found the letter to
be new and material. See id., at 723-24 (finding that the court can infer from the express designation
of some sets of records as not time-relevant that other records are time-relevant). However, there
is no statement explicitly or inferentially indicating that the Appeals Council found the letter to be
time-relevant. The letter is not specifically mentioned in the Appeals Council’s denial other than the
letter’s inclusion in a list of new exhibits, and the inclusion of newly submitted evidence as an
exhibit is not sufficient to show that the Appeals Council considered the evidence to be qualifying.

8

Id. at 724. Following precedent set by the Seventh Circuit Court of Appeals, the Court cannot
conclude that the Appeals Council found the evidence to be qualifying and considered whether the
letter would have been sufficient to change the ALJ’s decision. Id. at 725 (citing Farrell, 692 F.3d
at 771). Thus, the Court must determine de novo whether the letter is new, material, and timerelevant.
The Commissioner only argues that the letter is not material. The text of the letter confirms
that it is time-relevant, and the Court is unaware of elsewhere in the record where the letter appears.
In light of the Court’s review and the Commissioner’s lack of argument on the matter, the Court
determines that the letter is time-relevant and new. The remaining issue is whether the evidence is
material.
Evidence is material, for the purpose of Appeals Council review, if it creates a “reasonable
probability that the Commissioner would have reached a different conclusion” if the evidence had
been considered. Id. at 725 (citing Perkins, 107 F.3d at 1296). The text of Dr. Buynak’s letter states:
Cynthia Spann . . . has been my patient intermittently. In May 2011 she participated
in a clinical study that included treatment of Hepatitis C infection. She received
treatment including interferon therapy for approximately one year. During that time
she suffered from multiple side effects of the therapy including pain, fatigue and
depression. She was disabled from working during that time period.
(Opening Brief, Ex. B, ECF No. 15).
The Commissioner argues that, had the letter been before the ALJ, the letter would not have
altered the ALJ’s opinion. The Court disagrees. As the Commissioner correctly points out, whether
Plaintiff is disabled is a determination reserved for the Commissioner. 20 C.F.R. §§ 404.1527(d)(1);
416.927(d)(1). The remainder of the letter, however, undermines the ALJ’s determination of

9

Plaintiff’s credibility.1 The ALJ noted that Plaintiff testified that she had hepatitis C treatment in
2011. The ALJ found that Plaintiff’s statements were not fully credible for the reasons stated in his
opinion, which include discussion of the gap in Plaintiff’s treatment records from May 2011 to
October 2012.
The Commissioner concedes that the purported gap in Plaintiff’s treatment appears to cover
the period of time discussed in Dr. Buynak’s letter and that the ALJ did not properly inquire as to
the reasons for the gap in treatment.2 The Commissioner argues that the letter is nonetheless
immaterial because the ALJ gave several other reasons for finding Plaintiff’s statements of her
symptoms to be not fully credible. However, the Commissioner does not identify what these other
reasons are. The portions of the record cited in the Commissioner’s brief describe treatment of
Plaintiff’s hepatitis C, but they do not provide an explanation for what the ALJ deemed to be a gap
in Plaintiff’s treatment, which is the perceived deficiency in the record that the letter cures.
The Commissioner also argues that the letter is immaterial because the records that would
have supported Dr. Buynak’s statements in the letter cannot be produced because they are the
proprietary data of the company that ran the clinical study. Though the clinical study data is not in
evidence, there is evidence in the record supporting the letter. Treatment notes from May 4, 2011,
indicate that the plan for Plaintiff’s hepatitis C is to “send over for study.” (AR 559). Further, though

1

On March 28, 2016, Social Security Ruling 16-3p became effective and issued new guidance regarding the
evaluation of a disability claimant's statements about the intensity, persistence, and limiting effects of symptoms. See
SSR 16-3p, 2016 WL 1237954 (Mar. 28, 2016). Under SSR 16-3p, an ALJ now assesses a claimant's subjective
symptoms rather than assessing her “credibility.” However, SSR 16-3p is not retroactive; therefore, the “credibility
determination” in the ALJ's November 4, 2015 decision was governed by the standard of SSR 96-7p.
2

Social Security Ruling 96-7p provides that the ALJ “must not draw any inferences about an individual’s
symptoms and their functional effects from a failure to seek or pursue regular medical treatment without first considering
any explanations that the individual may provide, or other information in the case record, that may explain infrequent
or irregular medical visits or failure to seek medical treatment.” SSR 96-7p, 1996 WL 374186, *7 (July 2, 1996).
Because remand is required on other grounds, the Court need not address this issue, which Plaintiff does not raise.

10

“[a]n ALJ is entitled to evaluate the evidence and explanations that support a medical source’s
findings,” Simila v. Astrue, 573 F.3d 503, 516 (7th Cir. 2009), the statement that Plaintiff underwent
the clinical study is not a medical finding based on the clinical study’s data. For example, Dr.
Buynak is not asserting that the results of the study alter Plaintiff’s diagnosis. Rather, he is
explaining that Plaintiff did not have a gap in her treatment because she was in the clinical study.
The Court finds that there is a reasonable probability that, had the letter been before the
ALJ—and, therefore, the apparent gap in Plaintiff’s treatment explained—the ALJ would have
evaluated Plaintiff’s credibility differently and reached a different result. The letter is new, material,
and time-relevant. The Appeals Council’s decision to the contrary is legal error. Accordingly, the
Court remands this matter to the ALJ for a new decision. See Stepp, 795 F.3d at 726 (remanding to
the ALJ for new decision upon finding legal error in the Appeals Council’s determination that newly
submitted evidence was non-qualifying).
B. Dr. Buynak’s Note and MRI Testing Results
The other evidence that Plaintiff submitted to the Court, that is, Dr. Buynak’s note and the
MRI testing results, was not presented to the Appeals Council, so the Court’s review is guided by
sentence six of 42 U.S.C. § 405(g). Sentence six provides that the Court “may at any time order
additional evidence to be taken before the Commissioner of Social Security, but only upon a
showing that there is new evidence which is material and that there is good cause for the failure to
incorporate such evidence into the record in a prior proceeding; . . . . 42 U.S.C. § 405(g). The
plaintiff bears the burden of demonstrating that remand is appropriate under sentence six. Jenz v.
Barnhart, 347 F.3d 209, 214 (7th Cir. 2003).

11

Evidence is new if it was “not in existence or available to the claimant at the time of the
administrative proceeding.” Id. (quoting Sample v. Shalala, 999 F.2d 1138, 1144 (7th Cir. 1993)).
New evidence is material if there is a “reasonable probability” that the ALJ would have reached a
different disposition if presented with the new evidence. Id. (quoting Perkins, 107 F.3d at 1296).
Further, under sentence six remand, evidence is material only if it “relate[s] to the claimant’s
condition during the relevant time period encompassed by the disability application under review.”
Johnson v. Apfel, 191 F.3d 770, 776 (7th Cir. 1999) (quoting Anderson v. Bowen, 868 F.3d 921, 927
(7th Cir. 1989)).
Here, the MRI testing results are from over three years after the date on which the ALJ found
Plaintiff to be disabled. This evidence does not relate to Plaintiff’s condition during the time period
encompassed by the disability application at issue here. The other piece of evidence, Dr. Buynak’s
note, is not material. The note merely states that Dr. Buynak is not Plaintiff’s physician and cannot
fill out a medical information request. There is no reasonable probability that the ALJ would have
reached a different result if this note were before him.
CONCLUSION
Based on the foregoing, the Court hereby GRANTS the relief sought in the Social Security
Opening Brief [DE 15], REVERSES the final decision of the Commissioner of Social Security, and
REMANDS the case for further proceedings.
So ORDERED this 11th day of August, 2017.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT
cc:

Plaintiff Cynthia S. Spann, pro se

12