Brady v. Commissioner of Social Security
OPINION AND ORDER: The Court hereby GRANTS the relief sought in Plaintiff's Brief in Support of Reversing the Decision of the Commissioner of Social Security 13 , 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 3/6/2018. (jss)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
DANIEL ANTHONY BRADY,
NANCY A. BERRYHILL,
Acting Commissioner of the
Social Security Administration,
CAUSE NO.: 2:16-CV-523-PRC
OPINION AND ORDER
This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Daniel Anthony
Brady on December 19, 2016, and a Plaintiff’s Brief in Support of Reversing the Decision of the
Commissioner of Social Security [DE 13], filed on June 13, 2017. Plaintiff requests that the
September 19, 2015 decision of the Administrative Law Judge denying his claim for supplemental
security income be reversed and remanded for further proceedings. On August 24, 2017, the
Commissioner filed a response, and Plaintiff filed a reply on October 13, 2017. For the following
reasons, the Court grants Plaintiff’s request for remand.
Plaintiff filed an application for supplemental security income on June 27, 2013, after he
turned eighteen years old, alleging disability since birth in 1995 based on trisomy 20 mosaicism,
pulmonary stenosis, occult cleft palate, and severe scoliosis. The claim was denied initially and on
reconsideration. On September 2, 2015, Administrative Law Judge Laurie Wardell (“ALJ”) held a
hearing. In attendance at the hearing were Plaintiff, Plaintiff’s family, Plaintiff’s attorney, and an
impartial vocational expert. On September 19, 2015, the ALJ issued a written decision denying
benefits, making the following findings:
The claimant has not engaged in substantial gainful activity since June 27,
2013, the application date.
The claimant has the following severe impairments: scoliosis, learning
disability, and mild pulmonary valve stenosis.
The claimant does not have an impairment or combination of impairments
that meets or medically equals the severity of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1.
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 416.967(b) except the claimant can occasionally lift and carry 20 pound[s] and
frequently 10 pounds; sit for 6 hours and stand for 6 hours; is able to occasionally be
exposed to extreme cold, extreme heat, wetness, humidity, fumes, odors and
pulmonary irritants; and is able to do simple routine repetitive tasks not at a
production rate pace. The claimant is not able to do work that requires writing with
a writing instrument. The claimant should have no exposure to hazards. The claimant
is limited to occasional fingering and work in a work environment that is not any
louder than a moderate work environment.
The claimant has no past relevant work.
The claimant was born [in 1995] and was 18 years old, which is defined as
a younger individual age 18-49, on the date the application was filed.
The claimant has at least a high school education and is able to communicate
Transferability of job skills is not an issue because the claimant does not have
past relevant work.
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.
The claimant has not been under a disability, as defined in the Social Security
Act, from June 27, 2013, the date the application was filed.
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. § 416.1481. 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
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 [her] 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.”).
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. § 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. §1382c(a)(3)(B); 20 C.F.R. § 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. § 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. § 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.
§ 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).
Plaintiff seeks reversal and an award of benefits or, in the alternative, remand for further
proceedings, arguing that the ALJ failed to properly analyze the Listings at step three, that the RFC
assessment was not supported by substantial evidence, and that the credibility determination of
Plaintiff’s and his parents’ testimony was legally insufficient. The Court considers each argument
A. Listing of Impairments
The ALJ found that Plaintiff does not meet or equal a listing at step three of the sequential
analysis. On June 26, 2013, Plaintiff’s treating physician, Dr. C. Kramer, authored a letter to the
Social Security Administration Office of Disability Adjudication and Review. (AR 313). At the time
of the letter, Plaintiff was already eighteen years old. In the letter, Dr. Kramer, who indicated he had
been treating Plaintiff since August 2001, identified Plaintiff’s diagnoses as velopharyngeal
insufficiency, which required multiple surgeries; a submucus cleft palate; pulmonary artery stenosis;
a learning disability; and a seizure disorder. Id. Dr. Kramer wrote that, in March 2002, Plaintiff was
evaluated at the Genetic Clinic of Children’s Memorial Hospital and found to have trisomy 20
mosaicism on a chromosomal analysis. Id. He explained that this diagnosis unified all of Plaintiff’s
problems under one diagnosis. Id. Dr. Kramer then opined: “The diagnosis of Trisomy 20 mosaicism
with all of Daniel’s concurrent problems would appear to medically meet listing 110.8B.” Id. The
Court notes that there is no Listing 110.8B, but Dr. Kramer likely intended to identify Listing
110.08B for “catastrophic congenital disorders,” discussed below. On August 25, 2015, Dr. Kramer
authored a second letter giving the same background information and diagnoses but offering no
opinion on whether Plaintiff meets or equals a listing. (AR 610).
The Listing of Impairments for the evaluation of impairments of children under age 18 is
found in Appendix 1, Part B. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, Part B. The introductory
sentence to Part B provides: “Medical criteria for the evaluation of impairments of children under
age 18 (where criteria in part A do not give appropriate consideration to the particular disease
process in childhood).” Id. The listings in Part B are “never” used to evaluate individuals who are
age eighteen or older. 20 C.F.R. § 416.925(b)(2)(I). Within Part B, Listing 110.00 addresses
“Congenital Disorders That Affect Multiple Body Systems.” This section evaluates two
impairments: “non-mosaic Down syndrome and catastrophic congenital disorders.” Id. at § 110.00A.
First, Listing 110.06 addresses non-mosaic Down syndrome, which is defined under the
Listing as a genetic disorder involving extra copies of chromosome 21 in all of the cells, identified
as either “chromosome 21 trisomy” or “chromosome 21 translocation.” Id. at § 110.00B. There are
no medical records showing that Plaintiff has chromosome 21 trisomy or chromosome 21
translocation. Rather, Plaintiff was diagnosed with trisomy 20 mosaicism. (AR 281).
Second, Listing 110.08, the listing identified by Dr. Kramer, addresses “catastrophic
110.08 A catastrophic congenital disorder (see 110.00D and 110.00E) with:
A. Death usually expected within the first months of life, or
B. Very serious interference with development or functioning.
Id. at § 110.08. For purposes of Listing 110.08, a catastrophic congenital disorder includes, but is
not limited to, anencephaly, cyclopia, chromosome 13 trisomy (Patau syndrome or trisomy D), and
chromosome 18 trisomy (Edwards’ syndrome or trisomy E), which are usually expected to result
in early death. Id. at § 110.00D. Other disorders include cri du chat syndrome (chromosome 5p
deletion syndrome) and the infantile onset form of Tay-Sachs disease, which interfere “very
seriously with development.” Id. Pursuant to Listing 110.00D, the term “very seriously” in 110.08
has the same definition as the term “extreme” in § 416.926a(e)(3), which provides, in part: “We will
find that you have an ‘extreme’ limitation in a domain when your impairment(s) interferes very
seriously with your ability to independently initiate, sustain, or complete activities.” 20 C.F.R. §
416.926a(e)(3). “‘Extreme’ limitation also means a limitation that is ‘more than marked.’ ‘Extreme’
limitation is the rating we give to the worst limitations. However, ‘extreme limitation’ does not
necessarily mean a total lack or loss of ability to function.” Id.
Separately, the Listing of Impairments for Adults is found in Part A, and Listing 10.00 is
titled “Congenital Disorders that Affect Multiple Body Systems.” See 20 C.F.R. Pt. 404, Subpt. P,
App. 1, Part A, § 10.00. Listing 10.00A provides that, “[a]lthough Down syndrome exists in nonmosaic and mosaic forms, we evaluate only non-mosaic Down syndrome under this body system.”
Id. at § 10.00A. Listing 10.00B, for adults, defines non-mosaic Down syndrome in the same manner
as it is defined in Listing 110.06 for children. See id. at § 10.00B. Again, Plaintiff was not diagnosed
with chromosome 21 trisomy or chromosome 21 translocation, also required for adult Listing 10.00.
Listing 10.00D addresses how to evaluate “mosaic Down syndrome and other congenital
disorders that affect multiple body systems.” Id. at § 10.00D. In his reply brief, Plaintiff contends
that trisomy 20 falls under mosaic Down syndrome. (ECF 21, p. 9). However, like non-mosaic
Down syndrome, mosaic Down syndrome implicates extra copies of chromosome 21, and there is
no evidence that Plaintiff was diagnosed with extra copies of chromosome 21. See 10.00D1.
Nevertheless, it appears that Plaintiff may be arguing that he falls under the category of “other
congenital disorders that affect multiple body systems,” set out in Listing 10.00D2, which provides:
Other congenital disorders, such as congenital anomalies, chromosomal disorders,
dysmorphic syndromes, inborn metabolic syndromes, and perinatal infectious
diseases, can cause deviation from, or interruption of, the normal function of the
body or can interfere with development. Examples of these disorders include both
the juvenile and late-onset forms of Tay-Sachs disease, trisomy X syndrome (XXX
syndrome), fragile X syndrome, phenylketonuria (PKU), caudal regression
syndrome, and fetal alcohol syndrome. For these disorders and other disorders like
them, the degree of deviation, interruption, or interference, as well as the resulting
functional limitations and their progression, may vary widely from person to person
and may affect different body systems.
Id. at § 10.00D2. Listing 10.00D3 then explains how to evaluate the effects of these congenital
disorders under the listings:
When the effects of mosaic Down syndrome or another congenital disorder that
affects multiple body systems are sufficiently severe we evaluate the disorder under
the appropriate affected body system(s), such as musculoskeletal, special senses and
speech, neurological, or mental disorders. Otherwise, we evaluate the specific
functional limitations that result from the disorder under our other rules described in
Id. at § 10.00D2 (emphasis added). Finally, 10.00E provides that, if the disorder does not meet or
equal a listing, then the claimant’s residual functional capacity will be assessed and the
Commissioner will proceed to the fourth and, if necessary, fifth steps of the sequential analysis. Id.
at § 10.00E.
In her decision, the ALJ gave no weight to Dr. Kramer’s June 2013 opinion that Plaintiff
meets the childhood criteria for “110.8B.” (AR 14). The ALJ commented that the doctor did not
appear to be familiar with the criteria of the Listing. Id. The ALJ noted that Plaintiff was not a child
at the time that he applied for benefits or at the time of the ALJ’s decision. Id. Then, the ALJ
considered whether Dr. Kramer’s finding would apply to the comparable adult listing, which is
Listing 10.00, writing: “Further, the claimant was not diagnosed with trisomy 21 or Down Syndrome
and there is no karyotype analysis documenting non-mosaic Down Syndrome, which would be
required for Listing 110B or the comparable adult listing 10.00. Moreover, there is evidence of
functioning inconsistent with such a diagnosis.” Id. Although the ALJ did not specifically reference
Listings 10.00D2 and 10.00D3, the ALJ nevertheless considered the listings for the appropriate
affected body systems, finding that Plaintiff’s impairments do not meet or equal the listings for
musculoskeletal (1.04), respiratory (3.09), cardiovascular (4.06), and mental (12.02).
In her brief, Plaintiff argues that the ALJ did not consider “whether an adult listing,
comparable to childhood listing 110.08B was met or equaled.” (ECF 13, p. 17). Plaintiff
misunderstands the ALJ’s decision. Although child Listing 110.06 has its equivalent in adult Listing
10.06, there is no comparable adult listing for child Listing 110.08; instead, it appears that Plaintiff’s
impairments are considered under “other congenital disorders” as explained in 10.00D. The ALJ
discussed trisomy 21 and Down Syndrome because such a diagnosis is required to meet adult Listing
10.00, which the ALJ found Plaintiff did not meet.
As set forth above, Listings 10.00D2 and 10.00D3 provide that, when other congenital
disorders are at issue, the disorder is evaluated under the affected body systems. In order to meet or
equal a listing, the claimant must satisfy all of the criteria of a given listing. See 20 C.F.R. §§
416.925, 416.926; Rice v. Barnhart, 384 F.3d 363, 370 (7th Cir. 2004). The ALJ considered Listings
1.04, 3.09, 4.06, and 12.02, which are listings that correlate with Plaintiff’s affected body systems,
and the ALJ found that the listings were not met. Plaintiff does not appear to contest the ALJ’s
decision as to Listings 1.04, 3.09, and 4.06. Plaintiff only disputes the ALJ’s assessment of the
listings for mental impairments, arguing that the ALJ’s consideration of Listing 12.02 for
neurocognitive disorders was “perfunctory” and that the ALJ should have considered Listing 12.05
for intellectual disorders and Listing 12.11 for neurodevelopmental disorders. (ECF 13, p. 18).
As to Listing 12.02, the ALJ conducted a thorough analysis of the A and B paragraph criteria
and relied on the opinion of state agency psychological consultant Dr. Grange, to which the ALJ
gave great weight. Plaintiff does not acknowledge this analysis of Listing 12.02. Moreover, Plaintiff
does not identify any evidence to show that he meets Listing 12.02. As for Listing 12.05 for
intellectual disorders or Listing 12.11 for neurodevelopmental disorders, Plaintiff neither lists the
required criteria nor identifies any objective evidence demonstrating that he would meet or equal
those Listings. See App’x P, Subpart P, Part A, § 12.00C (“We need objective medical evidence
from an acceptable medical source to establish that you have a medically determinable mental
disorder.”). The ALJ did not err in finding that Dr. Kramer’s opinion regarding 110.08B did not
translate to the adult listings.
Finally, Plaintiff argues that the ALJ should have re-contacted Dr. Kramer to ask whether
he believed that Plaintiff’s impairments meet or equal the criteria for the adult listing. But, as set
forth above, there is no equivalent adult listing to child listing 110.08B and the ALJ conducted a
proper analysis of whether Plaintiff’s congenital disorder meets or equals the listings for the
appropriate affected body systems, relying on the opinion of Dr. Grange. Plaintiff has not identified
any “new evidence” that would support finding that his congenital disorder meets or equals a listing,
which would require the services of a medical expert. See (ECF 13, p. 19 (citing SSR 96-6p)).
Therefore, it was unnecessary for the ALJ to re-contact Dr. Kramer or engage a medical expert at
step three. Remand is not required as to the listing analysis at step three.
B. Residual Functional Capacity
The Residual Functional Capacity (“RFC”) is a measure of what an individual can do despite
the limitations imposed by his impairments. Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004);
20 C.F.R. § 416.945(a). The determination of a claimant’s RFC is a legal decision rather than a
medical one. 20 C.F.R. § 416.927(e)(1); Diaz, 55 F.3d at 306 n.2. The RFC is an issue at steps four
and five of the sequential evaluation process and must be supported by substantial evidence. SSR
96-8p, 1996 WL 374184, *3 (July 2, 1996); Clifford, 227 F.3d at 870.
“RFC is an assessment of an individual’s ability to do sustained work-related physical and
mental activities in a work setting on a regular and continuing basis. A ‘regular and continuing’
basis means 8 hours a day, for 5 days a week, or an equivalent work schedule.” SSR 96-8p at *1.
“The RFC assessment is a function-by-function assessment based upon all of the relevant evidence
of an individual’s ability to do work-related activities.” SSR 96-8p, at *3. The relevant evidence
includes medical history; medical signs and laboratory findings; the effects of symptoms, including
pain, that are reasonably attributed to a medically determinable impairment; evidence from attempts
to work; need for a structured living environment; and work evaluations, if available. Id. at *5. In
arriving at an RFC, the ALJ “must consider all allegations of physical and mental limitations or
restrictions and make every reasonable effort to ensure that the file contains sufficient evidence to
assess RFC.” Id. The “ALJ must also consider the combined effects of all the claimant’s
impairments, even those that would not be considered severe in isolation.” Terry v. Astrue, 580 F.3d
471, 477 (7th Cir. 2009); see also Golembiewski v. Barnhart, 322 F.3d 912, 918 (7th Cir. 2003).
Plaintiff argues that the ALJ’s RFC assessment was not supported by substantial evidence
in relation to his ability to walk, his ability to stoop, the effect of his migraines, the use of his hands,
his learning disability, and his speech. The Court considers each argument in turn, beginning with
Plaintiff’s migraine headaches because remand is required for proper consideration of the limiting
effects of the migraines on his ability to work on a regular and continuing basis.
Plaintiff frequently reported migraines or headaches to his treating physicians. See (AR 321
(10/13/09); 323 (9/10/08) (four migraines since school started, with vomiting; falls asleep and three
hours later the migraine is gone but he is very tired); 325 (2/20/2008) (headache noted); 329
(2/2/2007); 335 (9/14/2005); 337 (12/29/2003); 344 (8/28/2002); 352 (2/23/2007) (MRI for
diagnosis of headaches); 578 (4/1/2014 - chief complaint is cough, sore throat, and fever with
migraine headache noted as an active problem); 583 (2/6/2014 - “getting headaches weekly and
mom wants to restart Periactin if needed”). In 2009, Periactin was controlling his migraines. (AR
321). The February 6, 2014 treatment record reports that Plaintiff’s migraine headaches had recurred
three weeks earlier, occurring about once a week. (AR 583). The doctor noted that Plaintiff takes
two Motrin and takes a nap to resolve the headaches. Id. Plaintiff vomited with the migraines. Id.
At the time of the hearing, Plaintiff was having migraine headaches once a week and
managed them with Ibuprofen and sleeping for one and a half hours. (AR 39). Plaintiff’s father
testified that Plaintiff gets headaches when he is given too much to do or when he is engaged in an
activity for too long. (AR 65). Plaintiff’s father also testified that Plaintiff vomits once he gets a
headache. Id. His father testified that when Plaintiff was working as a bagger at a grocery store,
Plaintiff would get sent home from work early because he would get a migraine and throw up. (AR
60). On a form he filled out on July 21, 2013, Plaintiff reported that his migraine headaches cause
vomiting. (AR 222). On February 2, 2007, September 10, 2008, and February 6, 2014, Plaintiff
reported to his doctors that he would vomit when he has a headache. (AR 323, 329, 583). At times,
Plaintiff was prescribed medication for his migraines. See (AR 222, 304) (Periactin). Plaintiff had
a brain MRI on February 23, 2007, because of his migraines. (AR 352). The impression of the MRI
Diminution of the basilar angle suggestive of platybasia.
Basilar invagination as described in the body of the report. The dens abuts
the ventral surface of the brainstem. This contributes to crowding of the
structures of the foramen magnum region. The brainstem also appears to be
somewhat compressed in the vicinity of the cervicomedullary junction.
Osteogenesis imperfecta has been known to present in this fashion. Other
related osteochondrodysplasias are also possible. Please correlate clinically.
After acknowledging Plaintiff’s allegation of “a history of stress related headaches” and
Plaintiff’s testimony that “he has headaches about once a week and he takes his mediation or sleeps
to get rid of them,” (AR 16), the only discussion by the ALJ of Plaintiff’s headaches is in the context
of the credibility determination, in which the ALJ wrote: “The claimant’s pain and headaches have
responded to the most conservative treatment, including over the counter medication.” (AR 18).
However, the ALJ did not discuss any of the longitudinal medical records regarding Plaintiff’s
complaints of headaches or his history of treating with prescription medication. The ALJ did not
discuss Plaintiff’s father’s testimony that Plaintiff’s headaches arose when “he was given too much
to do, or engaged in an activity for too long,” nor did the ALJ discuss Plaintiff’s father’s testimony
regarding work stress causing the onset of the headaches, supported by examples from Plaintiff’s
prior work as a bagger at a grocery store. (AR 65). The ALJ did not discuss Plaintiff’s MRI, which
the Plaintiff’s attorney brought to the ALJ’s attention at the hearing in the context of discussing
Plaintiff’s headaches. (AR 34).
More importantly, the ALJ did not discuss the record testimony regarding Plaintiff’s need
to nap in order to resolve his headaches. The ALJ gave “some weight” to the testimony of Plaintiff’s
father, and recognized that it “offered insight into the severity of the claimant’s impairment and how
it affects his ability to function.” (AR 20). Yet, the ALJ did not acknowledge or discuss this specific
testimony, which is consistent with the longitudinal medical records, and how it would affect
Plaintiff’s ability to work. Even though Plaintiff’s headaches were treated with over-the-counter
medications at the time of the hearing, he nevertheless experienced them once per week, requiring
that he sleep to alleviate the pain.
The Commissioner argues that the ALJ limited Plaintiff not only to simple, routine, and
repetitive tasks but also to work that was not at a “production rate pace,” which the Commissioner
reasons removed the primary cause of Plaintiff’s headaches—stress. However, the ALJ did not
indicate that this limit to not a “production rate pace” was to accommodate Plaintiff’s headaches;
in the decision, the ALJ indicates only that the headaches are controlled with over-the-counter
medication. There is no indication in the record that a reduction in pace would alleviate Plaintiff’s
stress. And, Plaintiff’s headaches were brought on not only by stress but also by engaging in activity
for too long, which is not accommodated by a reduction in pace.
The ALJ’s failure to discuss Plaintiff’s history of headaches, the brain MRI, and the
consistent reports regarding the limiting effects of the headaches on Plaintiff’s ability to perform
basic work-related tasks, such as remaining at work for the entire shift, requires remand. See Goins
v. Colvin, 764 F.3d 677, 680 (7th Cir. 2014) (finding that the ALJ erred by overlooking the fact that
a Chiari I malformation supported the claimant’s claim of experiencing headaches); Shauger v.
Astrue, 675 F.3d 690, 697-98 (7th Cir. 2012) (finding that the ALJ failed to build a logical bridge
between the evidence and the credibility finding because he ignored several aspects of the testimony
regarding the limiting effects of the claimants’s headaches, including the measures taken to treat
them and the effect on daily activities); Indoranto v. Barnhart, 374 F.3d 470, 474 (7th Cir. 2004)
(finding that the ALJ erred by failing to discuss how the claimant’s headaches and blurred vision
affected her ability to work). If Plaintiff’s work as a bagger at a grocery store caused him to have
migraines, leading to vomiting, and requiring him to leave work, the ALJ should have explored the
impact of these effects on Plaintiff’s ability to sustain work for eight hours a day, five days a week.
SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996). And, nothing in the credibility determination
explains why this aspect of the testimony is not credible. Like in Moon, even if the ALJ did not fully
credit Plaintiff’s testimony overall, the ALJ should have discussed why she did not credit the
testimony regarding the effects of Plaintiff’s headaches, including the resulting vomiting, and the
need to sleep to alleviate them. Moon v. Colvin, 763 F.3d 718, 721 (7th Cir. 2014).
Remand is required for consideration of the effect of Plaintiff’s headaches on his ability to
perform basic work-related activities, including the ability to routinely complete a work day.
Plaintiff argues that the ALJ erred by not making a specific finding in the RFC as to how
long Plaintiff can “walk” during the day. In the physical RFC, the ALJ found that Plaintiff has the
“residual functional capacity to perform light work as defined in 20 CFR 416.967(b) except the
claimant can occasionally lift and carry 20 pounds and frequently 10 pounds, sit for six hours and
stand for 6 hours; is able to occasionally be exposed to extreme cold, extreme heat, wetness,
humidity, fumes, odors and pulmonary irritants; . . . .” (AR 15) (emphasis added). Thus, the ALJ
found that Plaintiff can perform light work with certain listed exceptions. By definition, light work
requires “standing or walking, off and on, for a total of approximately 6 hours of an 8-hour
workday.” SSR 83-10, at *6; see also 20 C.F.R. § 416.967(b) (“[A] job is in this category when it
requires a good deal of walking or standing, or when it involves sitting most of the time with some
pushing and pulling of arm or leg controls.”). And, the ALJ gave “great weight” to the state agency
medical consultant opinion, who opined, as recited by the ALJ in the decision, that plaintiff “retains
the capacity to lift and carry up to 20 pounds occasionally and 10 pounds frequently; stand and/or
walk for six hours and sit for 6 hours out of an 8 hour day; should avoid concentrated exposure to
extreme cold, extreme heat, wetness, humidity, fumes, odors, dusts gases, and poor ventilation.” (AR
19) (emphasis added). Notably, Plaintiff does not contest the weight given to this opinion.
The only evidence Plaintiff cites in support of additional limitations on walking is his
testimony that he could walk about three to four blocks. (ECF 13, p. 7 (citing AR 41-42)). At the
hearing, Plaintiff testified:
How much can you walk at one time without being in pain?
I can walk a pretty far distance without being in pain.
So how much would you say that is, like a mile?
Let me think. I can walk like from that speedway over there to maybe here
– maybe about here-Okay.
– would be okay, but any further than that I would probably – I would most
likely be in pain.
It’s like three – it’s like four blocks.
(AR 40-41). Plaintiff’s attorney did not elicit any further testimony about difficulty walking.
In contrast, in the decision, the ALJ noted the August 2013 consultative examination in
which the doctor noted a normal gait, normal extremities, normal range of motion, and ability to
walk on heels and toes without any difficulty despite decreased range of motion in lumbosacral
spine. (AR 17). The ALJ also noted that physical examinations by Plaintiff’s primary care physician
in 2014 for minor and temporary conditions indicated normal range of motion, normal stability, and
normal muscle tone. Id. The ALJ noted that an April 2015 visit with Dr. Shepherd, regarding surgery
for Plaintiff’s scoliosis, indicated that Plaintiff did not have any pain and was active with
skateboarding and snow boarding and that Plaintiff ambulated with an abnormal gate without
difficulty. (AR 17-18). In the context of the credibility assessment, the ALJ discounted Plaintiff’s
testimony about his physical limitations on the basis of Plaintiff’s participation in outdoor sports and
work as a bagger in a grocery store and found that Plaintiff “has remained able to ambulate despite
a leaning limp and the progress notes regarding the scoliosis do not support the level of pain
alleged.” (AR 18).
To argue that perhaps the ALJ intended to include additional walking limits but omitted
them, Plaintiff notes that, although the ALJ adopted the state agency medical consultant’s opinion,
the ALJ nevertheless included additional manipulative and environmental limitations not found by
the state agency medical consultant based on evidence the ALJ received at the hearing level. Id.
Thus, Plaintiff suggests that, since the ALJ found additional manipulative and environmental
limitations, perhaps the ALJ found additional walking limitations. This argument is not well taken
as the ALJ explicitly articulated the reason for including the additional manipulative and
environmental limitations and the ALJ did not express an intent to deviate from the medical opinion
as to walking.
A “commonsensical reading” of the decision is that the ALJ did not impose any additional
walking limitations. See Stevenson v. Colvin, 654 F. App’x 848, 852 (7th Cir. 2016). There was no
error in the assessment of Plaintiff’s ability to walk in the RFC. However, because the Court is
remanding on the issue of Plaintiff’s migraine headaches, the ALJ will have an opportunity to clarify
her assessment of Plaintiff’s ability to walk.
On August 5, 2013, Dr. Siddiqui, who examined Plaintiff for a disability medical evaluation,
noted on a Range of Motion Chart lumbar forward flexion of 20 degrees (with normal range of
motion being 90 degrees). (AR 564). And, an October 17, 2014 progress note from treating
physician Dr. Shepherd indicated range of motion of the lumbar spine as 40 degrees in flexion. (AR
608). Plaintiff argues that the ALJ erred by failing to include any limit on stooping in the RFC given
this evidence of reduced range of motion in his lumbar spine.
The ALJ gave great weight to the state agency medical consultants Dr. Brill and Dr.
Corcoran, who found no postural limitations. See (AR 19, 87, 101). Both doctors specifically noted
the August 5, 2013 record of decreased range of motion in the cervical and lumbar spine. (AR 88,
102). Both also noted the increase in the curvature of Plaintiff’s spine noted on May 3, 2013, and
that the February 2013 x-ray noted moderate levoscoliosis of the thoracolumabar spine and pelvic
tilt down to the left. Thus, unlike the cases cited by Plaintiff, there was no conflict in this case for
the ALJ to resolve between the consultant’s opinions and the examination records. Compare Mueller
v. Colvin, 524 F. App’x 282, 286 (7th Cir. 2013) (finding no conflict when the doctor who opined
that the plaintiff could stoop occasionally relied on a different doctor’s prior finding of an ability to
bend forward only 50 degrees); with Thomas v. Colvin, 534 F. App’x 546, 551 (7th Cir. 2013)
(finding that the ALJ failed to resolve inconsistencies between the reviewing doctor’s opinion that
the plaintiff could stoop, kneel, crouch, and crawl occasionally, and the consultative examining
doctor’s finding that the plaintiff had only 50 degrees of flexion in the lower back and “was unable
to squat” when the reviewing doctor had reviewed the examining doctor’s report and also because
the plaintiff had received significant treatment for her back in the nineteen months following the
consultative examination); Golembiewski, 322 F.3d at 917 (remanding, in part, because the ALJ did
not discuss an apparent conflict between the state agency physician’s opinion that the plaintiff could
stoop occasionally and a prior medical finding of 40 degrees of lumbar flexion); Luckett v. Berryhill,
2:16-CV-223, 2017 WL 4174252, at *7 (N.D. Ind. Sept. 17, 2017) (finding that it was not apparent
whether the reviewing doctors considered the medical records containing the lumbar flexion
The ALJ did not err in finding no limit on stooping because the ALJ relied on the opinion
evidence of record, which in turn acknowledged Dr. Siddiqui’s examination finding of limited
lumbar flexion. Moreover, even if the ALJ had limited Plaintiff to occasional stooping and
crouching based on those examination findings, Plaintiff would still be able to perform the jobs
identified by the ALJ at step five. See Dictionary of Occupational Titles, 1991 WL 672783 (Jan. 1,
2016) (323.687-014 Cleaner, Housekeeping (occasional stooping and crouching)); 1991 WL 672865
(Jan. 1, 2016) (344.677-014 Usher (occasional stooping and crouching)); 1991 WL 672694 (Jan. 1,
2016) (311.677-010 Cafeteria Attendant (occasional stooping)). Nevertheless, on remand, the ALJ
is encouraged to address the opinion evidence’s recognition of the clinical findings of limited lumbar
Plaintiff argues that the ALJ erred in his consideration of limitations related to Plaintiff’s
hands. Plaintiff notes that he testified that he has spasms or tremors in his hands, that his handwriting
is sloppy and hard to read, and that it is difficult sometimes to use a keyboard. (AR 49). Plaintiff’s
stepmother testified that Plaintiff’s hands are shaky and that he has difficulty with smaller buttons.
(AR 58). During a psychological evaluation, Plaintiff’s hands shook and his writing was messy,
sometimes illegible. (AR 537). Plaintiff’s special education teacher indicated that Plaintiff had poor
fine motor skills, making his writing difficult to read. (AR 231).
In the decision, even though the state agency physicians did not assign any manipulative
limitations, the ALJ nevertheless found that the evidence supported manipulative limitations, (AR
19), and included in the RFC a limitation of no work requiring Plaintiff to write and of only
occasional fingering. (AR 15). Plaintiff argues that the ALJ erred by not explaining how she arrived
at this limitation based on the evidence of record and that the ALJ did not explain why she did not
include handling limitations as well.
First, Plaintiff’s poor handwriting is directly accommodated by the limitation of no writing;
further explanation in the decision is not required. Second, as to the limitation on fingering but not
handling, Plaintiff does not cite any evidence of difficulty handling. As noted by the ALJ in the
decision, on physical examination, Plaintiff exhibited full grip strength and intact sensation and was
able to pick up and grip a coin in both hands. (AR 17). Thus, the manipulative limitations are
supported by the substantial evidence of record identified by the ALJ. Remand is not required on
The ALJ found that Plaintiff has the severe impairment of a learning disability. First,
Plaintiff argues that the ALJ did not engage in the special technique, see 20 C.F.R. § 416.920;
however, the ALJ utilized the special technique in assessing Plaintiff’s mental impairment, finding
that Plaintiff had moderate restriction in activities of daily living, mild difficulties in maintaining
social functioning, moderate difficulties in maintaining concentration, persistence, or pace, and no
episodes of decompensation. (AR 14). In doing so, the ALJ gave great weight to the opinion of state
agency psychological consultant Dr. Grange, noting that Dr. Grange reviewed the entire record as
it existed at the time of his review and that he has particular and detailed knowledge of the
applicable disability standards. (AR 14-15). The ALJ further found Dr. Grange’s opinion credible
and consistent with the mental status examinations throughout the record as well as Plaintiff’s
reported daily functioning in statements made by Plaintiff and in treatment notes from care
providers. (AR 15). Notably, Plaintiff offers no argument that Dr. Grange’s opinion is not supported
by the evidence of record.
Second, Plaintiff argues that the ALJ failed to include his moderate difficulties in
maintaining concentration, persistence, or pace in the hypothetical questions and the RFC
determination. In the RFC determination, the ALJ limited Plaintiff to “simple routine repetitive tasks
not at a production rate pace.” (AR 15). Plaintiff argues that the limit to not working at “production
rate pace” does not account for his difficulties in remembering how to perform tasks and needing
reminders. Plaintiff testified that he is forgetful and needs reminders and that his mind wanders. (AR
51-52). His stepmother testified that Plaintiff needs reminders to do daily tasks, (AR 56), and his
father testified that Plaintiff could not remember a list of tasks. (AR 61). When Plaintiff worked at
the grocery store as a bagger, he needed a job coach to help him remember how to do his tasks and
he needed others to help him finish tasks. (AR 61-62). Plaintiff’s boss complained to Plaintiff’s
father that Plaintiff was not performing tasks as they should be done. (AR 62). Even with repeat
training from his job coach, Plaintiff would still return to doing tasks incorrectly. (AR 62). In the
function report from Plaintiff, written by his mother, Plaintiff reported that he can pay attention from
thirty minutes to one hour and that he does not handle stress well. (AR 208, 209).
Plaintiff’s high school special education teacher noted that Plaintiff had problems
comprehending and following oral instructions and carrying out multiple-step instructions, required
supervision to stay on-task, and required time to refresh his memory when returning to activities
done previously. The ALJ gave these statements “some weight,” (AR 20), but did not explain that
these specific statements were not credible or explain why she did not give them full weight.
Plaintiff notes that, during psychological testing in May 2013, Plaintiff had working memory
(4th percentile) and processing speed (8th percentile) in the borderline range. (AR 538). Working
memory required Plaintiff to concentrate, process, and organize auditory information, producing a
result. Id. The processing speed assessment reflected Plaintiff’s ability to quickly scan, sequence,
or discriminate visual information and factored in short-term memory, attention, and visual-motor
coordination. Id. The evaluators concluded that Plaintiff may benefit from a job coach, extra time
to learn new tasks, being shown multiple times how to complete a task, and being given a list when
multiple tasks were required. (AR 540-41). The ALJ gave “significant weight” to the findings and
opinions, (AR 20), but did not include any restrictions based thereon. Nor did the ALJ explain how
the RFC accommodated these limitations.
The Seventh Circuit Court of Appeals has explained that a limitation to “simple, routine, and
repetitive tasks” addresses the requirements of “unskilled work,” which the “regulations define as
work that can be learned by demonstration in less than 30 days.” Varga v. Colvin, 794 F.3d 809, 814
(7th Cir. 2015) (citing 20 C.F.R. §§ 404.1568, 404.1520). The limit to unskilled tasks addresses the
time it takes to learn a job but does not address issues of memory and focus. Id.; see also Yurt v.
Colvin, 758 F.3d 850, 859 (7th Cir. 2014).
The Commissioner argues that the additional imitation of no “production rate pace”
accounted for Plaintiff’s moderate difficulties. See Seamon v. Astrue, 364 F. App’x 243, 248 (7th
Cir. 2010) (“[T]he ALJ captured her moderate limitation in concentration, persistence, and pace
when he included a restriction of ‘no high production goals.’”). The Commissioner acknowledges
that the state agency psychologists found Plaintiff to have moderate limitations in detailed
instructions, in maintaining attention and concentration for extended periods, in completing a normal
workday and workweek without interruptions from psychologically-based symptoms, in performing
at a consistent pace without an unreasonable number and length of rest periods, and in responding
appropriately to changes in the work setting. (AR 89, 102-03). However, the Commissioner also
notes that the psychologists also agreed that Plaintiff could understand, remember, and carry out
unskilled tasks without special considerations in many work environments. (AR 90, 103-04). And,
both indicated that Plaintiff could attend to tasks for sufficient periods of time to complete those
tasks and could manage the stresses associated with unskilled work. (AR 90, 103-04). Thus, the
Commissioner argues that the limit to no “production rate work” went beyond the findings of the
state agency psychologists.
However, the ALJ did not discuss Plaintiff’s tendency to forget instructions and his tendency
to need reminders, even for a simple job requiring bagging groceries and retrieving carts from the
parking lot, and the ALJ did not discuss the effect of stress on Plaintiff. Nor did the ALJ explain how
the limit to no “production rate work” accommodates these limitations. Remand is required for the
ALJ to discuss the specific effects of Plaintiff’s learning disability and how they are accommodated
by the limitations in the RFC.
In the closing paragraphs of this section, Plaintiff argues that it is unclear whether, in
evaluating his social functioning, the ALJ considered Plaintiff’s difficulties in communicating based
on a speech impediment. (ECF 13, p. 16). Plaintiff notes that he has been diagnosed with
velopharyngeal insufficiency. (AR 610). That same record shows that he had several surgeries for
the condition. Id. And, when Plaintiff was discharged from speech therapy, he had achieved an 8090% speech accuracy. (AR 440). Plaintiff fails to note that those records are from 2006, when he
was nine years old. He does not identify any recent records regarding the accuracy of his speech.
There is no indication that the ALJ or his attorney had any difficulty understanding him at the
hearing. The ALJ did not err by not discussing any deficiency with Plaintiff’s speech in relation to
his social functioning.
C. Credbility Determination
Finally, Plaintiff argues that the ALJ erred in evaluating Plaintiff’s subjective symptoms as
well as his parent’s statements. In making a disability determination, the ALJ must consider a
claimant’s statements about his symptoms, such as pain, and how the symptoms affect his daily life
and ability to work. See 20 C.F.R. § 416.929(a). Subjective allegations of disabling symptoms alone
cannot support a finding of disability. Id. The ALJ must weigh the claimant’s subjective complaints,
the relevant objective medical evidence, and any other evidence of the following factors:
The individual’s daily activities;
Location, duration, frequency, and intensity of pain or other symptoms;
Precipitating and aggravating factors;
Type, dosage, effectiveness, and side effects of any medication;
Treatment, other than medication, for relief of pain or other symptoms;
Other measures taken to relieve pain or other symptoms;
Other factors concerning functional limitations due to pain or other
See 20 C.F.R. § 416.929(c)(3). “Because the ALJ is in the best position to determine a witness’s
truthfulness and forthrightness . . . a court will not overturn an ALJ’s credibility determination
unless it is ‘patently wrong.’” Shideler, 688 F.3d at 310-11 (quotation marks omitted) (quoting
Skarbek, 390 F.3d at 504-05); see also Prochaska, 454 F.3d at 738. Nevertheless, “an ALJ must
adequately explain [her] credibility finding by discussing specific reasons supported by the record.”
Pepper v. Colvin, 712 F.3d 351, 367 (7th Cir. 2013) (citing Terry, 580 F.3d at 477); SSR 96-7p,
1996 WL 374186, at *2 (Jul. 2, 1996) (“The determination or decision must contain specific reasons
for the finding on credibility, supported by the evidence in the case record, and must be sufficiently
specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator
gave to the individual’s statements and the reasons for that weight.”).
Plaintiff raises several concerns with the ALJ’s assessment of his credibility and that of his
parents. Regarding statements about his migraine headaches and his difficulties with concentration,
persistence, and pace, the Court has addressed those issues above in the context of the RFC. As for
the remainder of the arguments, on remand the ALJ will be guided by Social Security Ruling 16-3p,
which 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); see also Notices, Social Security Ruling 16-3p, 2017 WL 4790249 (Oct. 25, 2017)
(clarifying that SSR 16-3p only applies when the ALJs “make determinations and decisions on or
after March 28, 2016” and that Social Security Ruling 96-7p governs cases decided before that date).
D. Award of Benefits
Plaintiff asks the Court to reverse and remand for an award of benefits or, in the alternative,
for additional proceedings. An award of benefits is appropriate “only if all factual issues involved
in the entitlement determination have been resolved and the resulting record supports only one
conclusion—that the applicant qualifies for disability benefits.” Allord v. Astrue, 631 F.3d 411, 415
(7th Cir. 2011). Based on the discussion above, remand, not an immediate award of benefits, is
Based on the foregoing, the Court hereby GRANTS the relief sought in Plaintiff’s Brief in
Support of Reversing the Decision of the Commissioner of Social Security [DE 13], 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 6th day of March, 2018.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?