Keith v. Commissioner of Social Security
OPINION AND ORDER AFFIRMING the Commissioner's decision. The Clerk is instructed to enter judgement in favor of the Commissioner. Signed by Magistrate Judge Michael G Gotsch, Sr on 7/14/2021. (lhc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
RICKIE M.K. 1,
CASE NO. 2:19-CV-393-MGG
COMMISSIONER OF SOCIAL
OPINION AND ORDER
Plaintiff seeks judicial review of the Social Security Commissioner’s decision
dated September 21, 2018, denying her application for Disability Insurance Benefits
(“DIB”) under Title II of the Social Security Act (“the Act”), 42 U.S.C. § 423(d)(1)(A).
This Court may enter a ruling in this matter based on parties’ consent pursuant to 28
U.S.C. § 636(c) and 42 U.S.C. § 405(g). For the reasons discussed below, the Court
AFFIRMS the Commissioner’s decision.
OVERVIEW OF THE CASE
This matter concerns Plaintiff’s application for DIB benefits filed on January 20,
2016, alleging that disability began on December 18, 2015. On September 21, 2018, an
Administrative Law Judge (“ALJ”) denied Plaintiff’s application for benefits finding
that she was not disabled under the Act. Plaintiff requested review of the ALJ’s decision
To protect privacy interests, and consistent with the recommendation of the Judicial Conference, the
Court refers to the plaintiff by first name, middle initial, and last initial only.
by the Appeals Council, which denied Plaintiff’s request on August 15, 2019. As a
result, the ALJ’s September 2018 decision is the final decision of the Commissioner.
Plaintiff timely sought judicial review of the Commissioner’s decision from this Court
when she filed her complaint on October 11, 2019. Plaintiff then filed her brief in
support of her appeal on May 15, 2020, to which the Commissioner responded on June
26, 2020. Plaintiff filed no reply brief.
The ALJ’s Findings
Plaintiff, a college graduate with a master’s degree in business and finance, who
was 57 years old on the applicable onset date, worked most recently as a bank manager.
In finding that Plaintiff was not disabled under the Act, the ALJ conducted the five-step
inquiry established in 20 C.F.R. § 404.1520. The ALJ identified Plaintiff’s benign brain
tumor, carpal tunnel syndrome, lumbar degenerative disc disease, and obesity as severe
impairments at Step Two. The ALJ also acknowledged that Plaintiff suffered from other
impairments including asthma, depression, diabetes, foot pain, glaucoma, sleep apnea,
and tinnitus, but found these impairments to be non-severe as they did not “more than
minimally interfere with the claimant’s ability to perform basic work activities.” [DE 10
at 12 2]. At Step Three, the ALJ concluded that none of Plaintiff’s severe impairments or
combination of impairments met or medically equalled the severity of any impairment
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ then found that Plaintiff
retains the residual functional capacity (“RFC”) “to perform sedentary work as defined
References to the Administrative Record in this Opinion and Order are made to the black, bold-faced
numeral in the bottom, right-hand corner of each page.
in 20 C.F.R. § 404.1567(a) except she can frequently handle and finger with both hands.”
[DE 10 at 15]. However, the ALJ also limited Plaintiff’s RFC as follows:
She can occasionally climb ramps and stairs, as well as occasionally balance,
stoop, kneel, and crouch. She can never climb ladders, ropes, or scaffolds,
never crawl, never work at unprotected heights, never [work] around
moving mechanical parts, and never operate a motor vehicle for work. She
is limited to working environments that have no more than a moderate
noise level. She must use a medically necessary cane at all times while
[Id.]. Absent from the RFC is any requirement that Plaintiff must frequently alternate
between sitting and standing positions, which Plaintiff alleged was necessary
throughout the day. Notably, the vocational expert testified that alternating between
sitting and standing positions for one to two minutes every sixty minutes would
preclude Plaintiff from performing her past relevant work as a bank manager.
Nevertheless, the ALJ determined at Step Four that Plaintiff could perform her past
relevant work. As such, the ALJ found that Plaintiff was not disabled under the Act.
This Court has the authority to review disability decisions by the Commissioner
in a limited way pursuant to 42 U.S.C. § 405(g). See Elder v. Astrue, 529 F.3d 408, 413 (7th
Cir. 2008). The Court must uphold the ALJ’s decision so long as it is supported by
substantial evidence. Thomas v. Colvin, 745 F.3d 802, 806 (7th Cir. 2014) (citing Similia v.
Astrue, 573 F.3d 503, 513 (7th Cir. 2009)). The Court’s deference to the ALJ’s decision is
lessened where the ALJ’s findings contain errors of fact or logic or fail to apply the
correct legal standard. Schomas v. Colvin, 732 F.3d 702, 709 (7th Cir. 2013). Additionally,
an ALJ’s decision cannot stand if it lacks evidentiary support or inadequately discusses
the relevant issues. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003).
At a minimum, an ALJ must articulate his analysis of the record to allow the
reviewing court to trace the path of his reasoning and to be assured the ALJ has
considered the important evidence in the record. Scott v. Barnhart, 297 F.3d 589, 595 (7th
Cir. 2002). While the ALJ need not specifically address every piece of evidence in the
record to present the requisite “logical bridge” from the evidence to his conclusions, the
ALJ must at least provide a glimpse into the reasoning behind his analysis and the
decision to deny benefits. O’Connor-Spinner v. Astrue, 627 F.3d 614, 618 (7th Cir. 2010);
see also Minnick v. Colvin, 775 F.3d 929, 935 (7th Cir. 2015).
Thus, the question upon judicial review is not whether the claimant is, in fact,
disabled, but whether the ALJ used “the correct legal standards and the decision [was]
supported by substantial evidence.” Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2007).
When reviewing the Commissioner’s findings under Section 405(g), the court cannot
reconsider facts, reweigh the evidence, decide questions of credibility or otherwise
substitute its own judgment for that of the ALJ. Clifford v. Apfel, 227 F.3d 863, 869 (7th
Cir. 2000). Thus, where conflicting evidence allows reasonable minds to reach different
conclusions about a claimant’s disability, the responsibility for the decision falls on the
Commissioner. Edwards v. Sullivan, 985 F.2d 334, 336 (7th Cir. 1993). If, however, an
error of law is committed by the Commissioner, then the “court must reverse the
decision regardless of the volume of evidence supporting the factual findings.” Binion v.
Chater, 108 F.3d 780, 782 (7th Cir. 1997). Finally, where it is clear the ALJ’s decision
would not be overturned by remanding the issue for further consideration, the doctrine
of harmless error applies to prevent remand. Keys v. Barnhart, 347 F.3d 990, 994-95 (7th
Here, Plaintiff contends that the ALJ’s determination that she is not disabled is
based on an error of law and is not supported by substantial evidence. Specifically,
Plaintiff challenges the ALJ’s RFC determination on the sole issue of whether the ALJ
properly evaluated and incorporated limitations as to her alleged need to alternate
between sitting and standing throughout the day due to lower back pain. A claimant’s
RFC is the most activity in which she can engage in a work setting despite the physical
and mental limitations that arise from her impairments and related symptoms. 20 C.F.R.
§ 404.1545(a)(1). The RFC is an administrative finding regarding a claimant’s ability to
perform work-related activities on a regular and continuing basis; it is not a medical
opinion. SSR 96-8p, 1996 WL 374184, at *2; see also Marner v. Berryhill, No. 1:17-CV-113WCL, 2018 WL 360332, at *5 (N.D. Ind. Jan. 11, 2018). An ALJ assesses a claimant’s RFC
based on all the relevant evidence in the record at the time of her decision, including
objective medical evidence, medical source opinions and observations, and a claimant’s
own statements about her limitations. 20 C.F.R. § 404.1545(a). The claimant bears the
burden of providing evidence establishing the degree to which her impairments limit
her functional capacity. See 20 C.F.R. §§ 404.1512(a), 404.1545(a)(3).
Here, Plaintiff argues that by not accounting for her need to alternate between
standing and sitting in the RFC, the ALJ erred as a matter of law by failing to properly
apply Social Security Ruling (“SSR”) 16-3p, “Evaluation of Symptoms in Disability
Claims.” Plaintiff also contends that the ALJ failed to consider objective evidence in
support of her need to alternate positions and cited some evidence erroneously such
that his RFC determination is not supported by substantial evidence. [DE 20 at 6].
Lastly, Plaintiff maintains that the ALJ failed to explain why the RFC lacks any
reference to alternating positions when signs and medical findings in the record
corroborate the need.
Under SSR 16-3p, if a claimant alleges impairment-related symptoms, such as
pain, those symptoms must be evaluated by the ALJ using a two-step process. SSR 163p; see also 20 C.F.R. § 404.1529(a). Once the ALJ finds the existence of a medically
determinable impairment that could reasonably be expected to produce the alleged
symptoms, he must evaluate the intensity and persistence of those symptoms to
determine the extent to which they impede the claimant’s ability to perform workrelated tasks. SSR 16-3p; see also 20 C.F.R. § 404.1529(c)(1). When considering the
intensity, persistence, and limiting effects of a claimant’s symptoms, the ALJ must
“examine the entire case record, including the objective medical evidence; an
individual’s statements about the intensity, persistence, and limiting effects of
symptoms; statements and other information provided by medical sources and other
persons; and any other relevant evidence in the individual’s case record.” SSR 16-3p.
In confronting the RFC analysis, Plaintiff does not dispute that the ALJ discussed
evidence in the record related to her lumbar degenerative disc disease as well as her
testimony that her back pain requires her to alternate between sitting, standing, and
walking during the day. Indeed, the ALJ explicitly referenced Plaintiff’s hearing
testimony about her need to alternate positions demonstrating that he did not ignore
her alleged limitation. [DE 10 at 16]. Moreover, the ALJ devoted an entire paragraph to
discussion of record evidence related to her lumbar degenerative disc disease. [Id.]. In
that paragraph, the ALJ cited records from her primary care provider, her back surgeon,
her sleep doctor, and her neurologist from August 2015 through April 2017 as well as
reports from her two consultative examinations in April 2016. The ALJ noted—and
documented—Plaintiff’s history of normal musculoskeletal examinations, including
normal range of motion; that she walked with a cane, had an abnormal gait at times,
and performed household chores slowly. The ALJ then mentioned Plaintiff’s normal
spinal curvature, a normal gait, and full range of motion as reported by the consultative
examiner, Dr. Jao. The ALJ also cited additional records showing a normal gait and no
lumbar spine tenderness; MRI results confirming degenerative spondylolisthesis but
described as stable; and Plaintiff’s July 2016 back surgery to address a disc bulge and
nerve root compression. Lastly, the ALJ referenced Plaintiff’s alleged numbness in her
leg despite normal musculoskeletal examinations.
Yet Plaintiff remains concerned that the ALJ failed to consider particular
objective evidence in support of her alleged symptoms. First, Plaintiff directs the
Court’s attention to Dr. Jao’s consultative examination report assessing her gait as
“grossly normal but wide-based,” her inability to heel to toe walk, and her difficulty
standing from a sitting position. [DE 20 at 6 (citing DE 10 at 800)]. Although the ALJ did
not expressly mention Plaintiff’s wide-based gait in his decision, he did explicitly
acknowledge notations in the record that Plaintiff occasionally had an abnormal gait.
[DE 10 at 16]. Moreover, the ALJ signalled his consideration of the totality of Dr. Jao’s
report by citing to the same page Plaintiff now cites. Thus, even though the ALJ did not
explicitly mention every detail in Dr. Jao’s report, he did not eschew an entire line of
evidence that was purportedly inconsistent with his ruling, especially in light of the fact
that Plaintiff’s gait was described as being “grossly normal” in the same exam report.
See Terry v. Astrue, 580 F.3d 471, 477 (7th Cir. 2009); see also O’Connor-Spinner, 627 F.3d at
Second, Plaintiff suggests that, although her spinal surgery addressed issues that
she experienced at the L4-L5 level, her June 2016 spinal MRI revealed spinal issues at
other levels that the ALJ inappropriately omitted. Plaintiff is correct that it may stand to
reason that a “repair at one level would have no effect on the problems at the other
levels” [DE 20 at 8]. Once again, however, Plaintiff’s argument is misplaced, as the ALJ
clearly cited to reviews of the June 2016 MRI by her back surgeon, a sleep doctor, and a
neurologist. [See DE 10 at 16 (citing DE 10 at 855–57; 1103–04; and 1264–65)]. Thus, the
ALJ reviewed the results of the MRI in assessing Plaintiff’s RFC. Moreover, Plaintiff’s
own doctor recognized the other spinal issues, but determined that Plaintiff’s issues
stemmed from the L4-L5 level and performed surgery there. Furthermore, Plaintiff has
not cited any evidence indicating that her alleged need to alternate between sitting and
standing is related to those untreated areas of her spine. Accordingly, Plaintiff has not
shown that the ALJ ignored a contrary line of evidence. See Terry, 580 F.3d at 477.
Finally, Plaintiff contends that the ALJ improperly ignored medical evidence of
claims of tenderness in the lumbar paraspinal muscles while clearly noting references to
no lumbar spine tenderness. In support, Plaintiff cites progress notes from
approximately five office visits to her primary care provider, Dr. Vyas, from February
2016 through September 2017. [DE 20 at 7 (citing DE 10 at 563–64; 808–09; 820–21; 830–
31; 1000; 1471)]. Dr. Vyas’s notes consistently report “[t]enderness . . . in the cervical and
lumbar paraspinal muscles” in his motor exam or gait, coordination, and reflexes notes.
Plaintiff’s argument here is similarly weak because Dr. Vyas’s notes simply
demonstrate that she experiences lower back pain, a fact the ALJ readily recognized in
his decision. The ALJ’s also accounts for the fact that Plaintiff’s back pain limits her
capacity to work. In fact, the ALJ attributed Plaintiff’s postural limitations restricting
her sedentary work to her degenerative disc disease. [DE 10 at 17]. Thus, Dr. Vyas’s
notes about paraspinal tenderness do not appear to “reveal any substantially different
information about [Plaintiff’s] back problems.” Deborah M. v. Saul, 994 F.3d 785, 788 (7th
Cir. 2021). Accordingly, Plaintiff has not established that the ALJ’s omission was an
error of law or would have changed his assessment of Plaintiff’s RFC.
In sum, Plaintiff has not shown that the ALJ omitted any contrary evidence or
otherwise failed to consider the entire record of evidence when he crafted an RFC that
does not reference Plaintiff’s reported need to alternate positions. As such, the ALJ
committed no legal error in his RFC analysis and supported his decision that found
Plaintiff not disabled under the Act with substantial evidence. Moreover, this Court
does not have the authority to reweigh the evidence in the record to resolve conflicts
differently than the Commissioner, whose ALJ had the benefit of observing Plaintiff
firsthand. See Edwards 985 F.2d at 336. Accordingly, the ALJ’s decision is entitled to
deference. See Thomas, 745 F.3d at 806.
For the reasons stated above, the Commissioner’s decision is AFFIRMED. The
Clerk is instructed to enter judgement in favor of the Commissioner.
SO ORDERED this 14th day of July 2021.
s/Michael G. Gotsch, Sr.
Michael G. Gotsch, Sr.
United States Magistrate Judge
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