McClure v. Commissioner of Social Security

Filing 18

OPINION AND ORDER: The Court hereby GRANTS the relief requested in PlaintiffsOpening Brief 15 , and REMANDS this matter for further proceedings consistent with this opinion. Signed by Magistrate Judge John E Martin on 9/4/2018. (jss)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
D’ANGELO S. MCCLURE,
Plaintiff,
v.
NANCY A. BERRYHILL,
Deputy Commissioner for Operations,
Social Security Administration,
Defendant.

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CAUSE NO.: 2:17-CV-343-JEM

OPINION AND ORDER
This matter is before the Court on a Complaint [DE 1], filed by Plaintiff D’Angelo S.
McClure on August 23, 2017, and Plaintiff’s Opening Brief [DE 15], filed by Plaintiff on
December 29, 2017. Plaintiff requests that the decision of the Administrative Law Judge be
reversed and remanded for benefits or further proceedings. On February 8, 2018, the
Commissioner filed a response, and on February 22, 2018, Plaintiff filed a reply.
I.

Procedural Background
On October 8, 2013, Plaintiff filed an application for benefits alleging that he became

disabled on August 29, 2013. Plaintiff’s application was denied initially and upon
reconsideration. On June 29, 2016, Administrative Law Judge (“ALJ”) Howard Kauffman held
a video hearing at which Plaintiff, with an attorney representative, and a vocational expert
testified. On July 22, 2016, the ALJ issued a decision finding that Plaintiff was not disabled.
The ALJ made the following findings under the required five-step analysis:
1.

The claimant meets the insured status requirements of the Social Security
Act through September 30, 2016.

2.

The claimant has not engaged in substantial gainful activity since August
29, 2013, the alleged onset date.

3.

The claimant has the following severe impairments: deep vein thrombosis,
history of pulmonary embolism, Olliers Disease, and obesity.

4.

The claimant does not have an impairment or combination of impairments
that meets or medically equals any of the listed impairments in 20 CFR
404, Subpart P, Appendix 1.

5.

After careful consideration of the entire record, the undersigned finds that
the claimant has the residential functional capacity (“RFC”) to perform
light work as defined in 20 CFR 404.1567(b) and 416.967(b) where the
claimant can lift and/or carry 20 pounds occasionally, and 10 pounds
frequently, can sit up to six hours of an eight-hour workday, and can stand
and/or walk up to six hours of an eight-hour workday. The claimant can
occasionally climb ramps and stairs, and must avoid climbing ladders,
ropes, and scaffolds. The claimant can occasionally balance, stoop, kneel,
crouch, and crawl. The claimant must avoid more than moderate exposure
to fumes, odors, dusts, and gases, and poor ventilation.

6.

The claimant has no past relevant work.

7.

The claimant was 24 years old, which is defined as a younger individual
age 18-49, 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 because the claimant does not
have past relevant work.

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 August 29, 2013, through the date of this decision.

The Appeals Council denied Plaintiff’s request for review and denied his request to
reopen the decision, leaving the ALJ’s decision the final decision of the Commissioner.
The parties filed forms of consent to have this case assigned to a United States Magistrate
Judge to conduct all further proceedings and to order the entry of a final judgment in this case.

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Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c) and 42
U.S.C. § 405(g).
II.

Standard of Review
The Social Security Act authorizes judicial review of the final decision of the agency and

indicates that the Commissioner’s factual findings must be accepted as conclusive if supported
by substantial evidence. 42 U.S.C. § 405(g). Thus, a court reviewing the findings of an ALJ will
reverse only if the findings are not supported by substantial evidence or if the ALJ has applied an
erroneous legal standard. See Briscoe v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005). Substantial
evidence consists of “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005) (quoting Gudgel
v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003)).
A court reviews the entire administrative record but does not reconsider facts, re-weigh
the evidence, resolve conflicts in evidence, decide questions of credibility, or substitute its
judgment for that of the ALJ. See Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir. 2005); Clifford
v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000); Butera v. Apfel, 173 F.3d 1049, 1055 (7th Cir. 1999).
Thus, the question upon judicial review of an ALJ’s finding that a claimant is not disabled within
the meaning of the Social Security Act is not whether the claimant is, in fact, disabled, but
whether the ALJ “uses the correct legal standards and the decision is supported by substantial
evidence.” Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013) (citing O’Connor-Spinner v.
Astrue, 627 F.3d 614, 618 (7th Cir. 2010); Prochaska v. Barnhart, 454 F.3d 731, 734-35 (7th
Cir. 2006); Barnett v. Barnhart, 381 F.3d 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

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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 or 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, as a reviewing court, we may assess the validity of the agency’s final
decision and afford [a claimant] meaningful review.” Giles v. Astrue, 483 F.3d 483, 487 (7th Cir.
2007) (quoting Scott, 297 F.3d at 595); see also O’Connor-Spinner, 627 F.3d at 618 (“An ALJ
need not specifically address every piece of evidence, but must provide a ‘logical bridge’
between the evidence and his conclusions.”); Zurawski v. Halter, 245 F.3d 881, 889 (7th Cir.
2001) (“[T]he ALJ’s analysis must provide some glimpse into the reasoning behind [the]
decision to deny benefits.”).
III.

Analysis
Plaintiff argues that the ALJ improperly evaluated whether Plaintiff medically equaled

Listing 7.08 (“Disorders of Thrombosis and Hematosis”). The Commissioner argues that
substantial evidence supports the ALJ’s findings that Plaintiff did not meet or medically equal
Listing 7.08.
Appendix 1 of the disability regulations contains a “Listing of Impairments” that the SSA
has predetermined are disabling regardless of a claimant’s age, education, or work experience.
20 C.F.R. § 404.1525(a). The Listings first enumerate criteria necessary to establish that a

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claimant’s diagnosis is based on acceptable medical evidence. 20 C.F.R. § 404.1525(c)(2). The
remaining criteria establish the severity the impairment much reach to be considered disabling.
20 C.F.R. § 404.1525(c)(2). At Step Three of the disability inquiry, an ALJ must determine
whether the claimant’s impairments meet or equal the Listing criteria.

See 20 C.F.R. §§

404.1520(a)(4)(iii), 416.920(a)(4)(iii). “To meet or equal a listed impairment, the claimant must
satisfy all of the criteria of the listed impairment,” and he “bears the burden of proving his
condition meets or equals a listed impairment.” Maggard v. Apfel, 167 F.3d 376, 380 (7th Cir.
1999). A claimant can satisfy a listing “by showing that his impairment is accompanied by
symptoms that are equal in severity to those described in the Listing.” Minnick v. Colvin, 775
F.3d 929, 935 (7th Cir. 2015). A claimant meets Listing 7.08 if he has “at least three
hospitalizations within a 12-month period and occurring at least 30 days apart prior to
adjudication. Each hospitalization must last at least 48 hours, which can include hours in the
hospital emergency department or comprehensive hemophilia treatment center immediately
before the hospitalization.” See 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 7.08.
In this case, the record indicates that Plaintiff was hospitalized at least six times between
September 8, 2013 and June 6, 2014. The ALJ correctly stated that only two of the
hospitalizations lasted for at least 48 hours, and concluded that “they do not meet the Listing
7.08 requirements.” However, the ALJ did not assess whether Plaintiff’s impairment may have
“equaled” the impairment contemplated in the listing, nor did he solicit a medical opinion on that
topic. Plaintiff reported to the emergency room six times complaining of symptoms apparently
related to deep vein thrombosis. The ALJ assumed that six hospitalizations over a 10-month
period, including a two-day and a ten-day hospitalization during that period, could not be

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equivalent to three 48-hour hospitalizations in 12 months. Given the frequency with which
Plaintiff sought urgent medical treatment over that period, Plaintiff’s impairment may well have
been “equal in severity” to that contemplated in Listing 7.08. Minnick, 775 F.3d at 935. But the
ALJ did not analyze this, and “simply assumed the absence of equivalency without any relevant
discussion. That assumption cannot substitute for evidence and does not support the decision to
deny benefits.” Barnett v. Barnhart, 381 F.3d 664, 670 (7th Cir. 2004). The ALJ should have
sought a medical opinion. “Whether a claimant’s impairment equals a listing is a medical
judgment, and an ALJ must consider an expert’s opinion on the issue.” Id. at 681.
Plaintiff also argues that the ALJ made several other errors in his analysis. On remand, if
the ALJ again concludes that Plaintiff does not meet the requirements of the Listing, the ALJ is
reminded that he must evaluate the treating physician’s opinion by the factors enumerated in 20
C.F.R. § 404.1527(c)(2), including the length and nature of the treatment history with the
claimant, and discuss those factors in his decision. See Larson v. Astrue, 615 F.3d 744, 751
(remanding where ALJ “said nothing regarding this required checklist of factors”). If a treating
physician’s opinion is ultimately rejected, “a sound explanation must be given for that decision.”
Punzio v. Astrue, 630 F.3d 704, 710 (7th Cir. 2011).
The ALJ is reminded that performing activities of daily living at home is not equivalent
to performing them in an employment context, and not preclusive of disability. See Bjornson v.
Astrue, 671 F.3d 640, 647 (7th Cir. 2012) (identifying the “critical differences between activities
of daily living and activities in a full-time job . . . that a person has more flexibility in scheduling
the former than the latter, can get help from other persons . . . and is not held to a minimum
standard of performance, as she would be by an employer.”). Further, when apparent failure to

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comply with a prescribed treatment regimen is used as a factor in determining whether a
claimant’s statements should be believed, the ALJ must assess whether the lack of treatment is
justified and develop the record accordingly. See SSR 16-3p, 2016 WL 1119029 (March 16,
2016) at *7; Shauger v. Astrue, 675 F.3d 690, 696 (7th Cir. 2012) (“an ALJ must first explore the
claimant’s reasons for the lack of medical care before drawing a negative inference”).
Finally, the ALJ is reminded of the need to fully review all of the medical evidence in the
record and to obtain additional information as needed, including medical opinion evidence
needed to assess whether Plaintiff meets Listing 7.08. See, e.g., Barnett, 381 F.3d at 669 (“An
ALJ has a duty to solicit additional information to flesh out an opinion for which the medical
support is not readily discernable.”) (citing 20 C.F.R. § 404.1527(c)(3); SSR 96-2p, 1996 WL
374188 at *4 (July 2, 1996)); 20 C.F.R. §§ 404.1512(d)(1), 416.919(b)).
V.

Conclusion
For the foregoing reasons, the Court hereby GRANTS the relief requested in Plaintiff’s

Opening Brief [DE 15], and REMANDS this matter for further proceedings consistent with this
opinion.
SO ORDERED this 4th day of September, 2018.
s/ John E. Martin
MAGISTRATE JUDGE JOHN E. MARTIN
UNITED STATES DISTRICT COURT
cc:

All counsel of record

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