Borum v. Commissioner of Social Security

Filing 21

OPINION AND ORDER REMANDING this matter for further proceedings consistent with this opinion. ***Civil Case Terminated. Signed by Magistrate Judge John E Martin on 7/25/19. (mlc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
JESSICA ANTOINETTE BORUM,
Plaintiff,
v.
ANDREW M. SAUL,
Commissioner of the Social Security
Administration,
Defendant.

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CAUSE NO.: 2:18-CV-185-JEM

OPINION AND ORDER
This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Jessica
Antoinette Borum on May 10, 2018, and Plaintiff’s Brief in Support of Her Motion to Reverse
the Decision of the Commissioner of Social Security [DE 18], filed October 15, 2018. Plaintiff
requests that the decision of the Administrative Law Judge be reversed and remanded for further
proceedings. On October 19, 2018, the Commissioner filed a response, and on December 13,
2018, Plaintiff filed a reply.
I.

Background
On December 5, 2014, Plaintiff filed an application for benefits alleging that she became

disabled on January 1, 2013. Plaintiff’s application was denied initially and upon
reconsideration. On March 14, 2017, Administrative Law Judge (“ALJ”) Jessica Inouye held a
hearing at which Plaintiff, with an attorney, and a vocational expert (“VE”) testified. On May 31,
2017, 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’s date last insured is December 31, 2016.

2.

The claimant has not engaged in substantial gainful activity since January
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1, 2013, the alleged onset date.
3.

The claimant has the following severe impairments: degenerative joint
disease/osteoarthritis; degenerative disc disease; obstructive sleep apnea;
headaches; fibromyalgia; obesity; and major depressive disorder.

4.

The claimant does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§
404.1520(d), 404.1525, and 404.1526, 416.920(d), 416.925 and 416.926).

5.

The claimant has the residual functional capacity (“RFC”) to perform
sedentary work as defined in 20 C.F.R. § 404.1567(a) and 416.967(a)
except she is limited to: never climbing ladders, ropes, or scaffolds,
kneeling, crouching, or crawling; occasionally climbing ramps and stairs,
balancing, and stooping; frequently performing gross and fine
manipulation with the left upper extremity; and avoiding concentrated
exposure to extreme temperatures, humidity, as well as hazards such as
unprotected heights and moving dangerous machinery. Furthermore, the
claimant is able to learn, understand, remember, and carry out simple
routine and repetitive work tasks and sustain them in two-hour increments
throughout the typical workday.

6.

The claimant has no past relevant work.

7.

The claimant was 26 years old, which is defined as a younger individual
age 18-44, 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 January 1, 2013, through the date of this decision.

The Appeals Council denied Plaintiff’s request for review, leaving the ALJ’s decision the final
decision of the Commissioner.
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The parties filed forms of consent to have this case assigned to a United States Magistrate
Judge to conduct all further proceedings and to order the entry of a final judgment in this case.
Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c) and 42
U.S.C. § 405(g).
II.

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

indicates that the Commissioner’s factual findings must be accepted as conclusive if supported
by substantial evidence. 42 U.S.C. § 405(g). Thus, a court reviewing the findings of an ALJ will
reverse only if the findings are not supported by substantial evidence or if the ALJ has applied an
erroneous legal standard. See Briscoe v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005). Substantial
evidence consists of “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005) (quoting Gudgel
v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003)).
A court reviews the entire administrative record but does not reconsider facts, re-weigh
the evidence, resolve conflicts in evidence, decide questions of credibility, or substitute its
judgment for that of the ALJ. See Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir. 2005); Clifford
v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000); Butera v. Apfel, 173 F.3d 1049, 1055 (7th Cir. 1999).
Thus, the question upon judicial review of an ALJ’s finding that a claimant is not disabled within
the meaning of the Social Security Act is not whether the claimant is, in fact, disabled, but
whether the ALJ “uses the correct legal standards and the decision is supported by substantial
evidence.” Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013) (citing O’Connor-Spinner v.
Astrue, 627 F.3d 614, 618 (7th Cir. 2010); Prochaska v. Barnhart, 454 F.3d 731, 734-35 (7th
Cir. 2006); Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004)). “[I]f the Commissioner
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commits an error of law,” the Court may reverse the decision “without regard to the volume of
evidence in support of the factual findings.” White v. Apfel, 167 F.3d 369, 373 (7th Cir. 1999)
(citing Binion v. Chater, 108 F.3d 780, 782 (7th Cir. 1997)).
At a minimum, an ALJ must articulate his 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). 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’ConnorSpinner, 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 failed to adequately account for her functional limitations in

the RFC, and failed to properly evaluate her subjective complaints. The Commissioner argues
that the ALJ’s decision is supported by substantial evidence.
Plaintiff contends that the ALJ erred in failing to account for Plaintiff’s headaches in the
RFC. Plaintiff was diagnosed with migraines, and testified that she got migraines 4-5 days per
week, lasting 6-7 hours, which sometimes caused nausea and vomiting, and that she sometimes
needed to lay down. The ALJ found Plaintiff’s headaches to be a “severe impairment,” but failed
to include any limitations regarding Plaintiff’s headaches in the RFC. The Commissioner argues
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that the ALJ did not need to include any limitations for Plaintiff’s headaches, because the ALJ
did not credit Plaintiff’s subjective complaints about her headaches and found no additional
evidence that Plaintiff’s headaches resulted in functional limitations. That logic does not justify
the ALJ’s omission. First, although the ALJ made a general finding that Plaintiff made
“inconsistent” statements that “diminish the persuasiveness of [ ] her alleged limitations,” none
of the inconsistencies the ALJ identified related to headaches or specifically contradicted
Plaintiff’s allegations about the headaches. To the extent the ALJ relied on those conclusions
about Plaintiff’s inconsistencies to ignore her allegations of headaches in crafting the RFC, her
explanation for doing so was inadequate. See O’Connor-Spinner, 627 F.3d at 618 (an ALJ “must
provide a ‘logical bridge’ between the evidence and his conclusions.”); see also Zurawski v.
Halter, 245 F.3d 881, 887 (7th Cir. 2001) (remanding where ALJ failed to “explain[] the
inconsistencies” between a claimant’s activities of daily living, his complaints of pain, and the
medical evidence) (citing Clifford, 227 F.3d at 870-72); SSR 16-3p, 2017 WL 5180304 (October
25, 2017), at *8 (ALJs must “explain which of an individual’s symptoms we found consistent or
inconsistent with the evidence . . . and how our evaluation of the individual’s symptoms led to
our conclusions”). Second, the ALJ herself noted that the headaches were severe impairments
that “significantly limit the ability to perform basic work activities as required by SSRs 85-28
and 96-3p.” AR 19-20; see also SSR 16-3p, 2017 WL 5180304 at *11 (“A severe impairment is
one that affects an individual’s ability to perform basic work-related activities.”). The ALJ’s
conclusion that the impairment was “severe” but did not merit any work limitations was
contradictory.
Plaintiff also argues that the ALJ failed to sufficiently analyze her testimony about
fatigue and her need to elevate her legs. Plaintiff reported, in essence, that she had issues with
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daytime sleepiness and did not want to drive or go out alone because of the possibility that she
would fall asleep. In addition, she testified that she would need to elevate her legs for “at least a
couple of hours” three or four times a week, to reduce swelling caused by edema. AR 53. As
described above, ALJs must “discuss” a claimant’s reported functional limitations, and “explain
which of an individual’s symptoms we found consistent or inconsistent with the evidence . . .
and how our evaluation of the individual’s symptoms led to our conclusions.” SSR 16-3p, 2017
WL 5180304 at *8. Although the ALJ acknowledged Plaintiff’s obesity and obstructive sleep
apnea as “severe impairments,” the ALJ never actually discussed these alleged limitations
themselves. As with Plaintiff’s headaches, the ALJ never explained why Plaintiff’s complaints
were “inconsistent” with the record, if that was her conclusion. Although the ALJ catalogued
Plaintiff’s impairments, she ignored corresponding limitations that could have supported a
finding of disability. See Scrogham v. Colvin, 765 F.3d 685, 698 (7th Cir. 2014) (finding that
ALJ erred by “ignor[ing] . . . evidence that undermined her conclusion”); see also Denton v.
Astrue, 596 F.3d 419, 425 (7th Cir. 2010) (an ALJ must “consider all relevant medical evidence
and cannot simply cherry-pick facts that support a finding of non-disability while ignoring
evidence that points to a disability finding”).
Plaintiff also asserts that the ALJ erred in evaluating her mental RFC. The ALJ found
that Plaintiff’s major depressive disorder was a severe impairment. The ALJ then determined
that Plaintiff had mild limitations in understanding, remembering, or applying information; mild
limitations in interacting with others; moderate limitations in concentrating, persisting, or
maintaining pace; and moderate limitations in adapting or managing herself. AR 21-22. The ALJ
limited Plaintiff to “simple routine and repetitive work tasks,” sustained “in two-hour increments

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throughout the typical workday.” AR 23. Plaintiff argues that the ALJ failed to adequately
accommodate her limitations in concentration, persistence, and pace in the RFC.
The Seventh Circuit Court of Appeals has repeatedly held that limiting a claimant to
simple, routine or repetitive tasks is not sufficient to account for her difficulties in concentration,
persistence, or pace. See Jelinek v. Astrue, 662 F.3d 805, 813-14 (7th Cir. 2011) (concluding that
limitations to sedentary and light unskilled work did not “address[] the impact of the mental
limitations … which … limited [the plaintiff’s] ability to maintain regular work attendance, to
carry out instructions, and to deal with the stresses of full-time employment”); see also Moreno
v. Berryhill, 882 F.3d 722, 730 (7th Cir. 2018) as amended on reh’g (April 13, 2018). A
limitation to unskilled work is generally insufficient to account for moderate limitations in
concentration, persistence or pace because “[t]he ability to stick with a task over a sustained
period is not the same as the ability to learn how to do tasks of a given complexity.”
O’Connor-Spinner, 627 F.3d at 620-21. In this case, consistent with Plaintiff’s testimony and a
written statement offered by her ex-husband, the ALJ found that Plaintiff had moderate
limitations in concentration, persistence, or pace, noting that she had “difficulty with attention
and finish[ing] what she starts.” But the ALJ failed to discuss how those limitations were
incorporated into the RFC beyond the limitations to simple tasks. The ALJ also failed to make
the VE aware of Plaintiff’s limitations in concentration, persistence, and pace, despite the VE’s
testimony that Plaintiff would need to be on task for 90 percent of the day in order to be capable
of full time work.
As for the remaining arguments, the Court expresses no opinion about the previous ALJ
decision. On remand, the Court instructs the ALJ to address all of Plaintiff’s alleged limitations

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as required by the regulations, and to build a logical bridge between the evidence and the
conclusions. O’Connor-Spinner, 627 F.3d at 618.
IV.

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

Brief in Support of Her Motion to Reverse the Decision of the Commissioner of Social Security
[DE 18] and REMANDS this matter for further proceedings consistent with this opinion.
SO ORDERED this 25th day of July, 2019.
s/ John E. Martin
MAGISTRATE JUDGE JOHN E. MARTIN
UNITED STATES DISTRICT COURT
cc:

All counsel of record

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