Neal v. Commissioner of Social Security

Filing 21

OPINION AND ORDER: The Court hereby GRANTS the relief requested in Plaintiff's Opening Brief 14 , and REMANDS this matter for further proceedings consistent with this opinion. Signed by Magistrate Judge John E Martin on 2/18/2021. (bas)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
TOINETTE YVONNE NEAL,
Plaintiff,
v.
ANDREW SAUL, Commissioner of
Social Security,
Defendant.

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CAUSE NO.: 2:20-CV-7-JEM

OPINION AND ORDER
This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Toinette Yvonne
Neal on January 8, 2020, and Plaintiff’s Opening Brief in Support of a Social Security Appeal [DE
14], filed by Plaintiff on June 12, 2020. Plaintiff requests that the decision of the Administrative
Law Judge denying her supplemental security income and disability insurance benefits be vacated
and remanded for further proceedings. On September 17, 2020, the Commissioner filed a response,
and on October 10, 2020, Plaintiff filed a reply.
I.

Procedural Background
On November 3, 2016, Plaintiff filed concurrent applications for supplemental security

income and disability insurance benefits alleging that she became disabled on September 30, 2016,
due to back surgery, diabetes, HIV, depression, blood pressure, cane use for support, and
neuropathy. Plaintiff’s applications were denied initially on March 14, 2017, and again upon
reconsideration on July 6, 2017.
On November 19, 2018, Administrative Law Judge (“ALJ”) Marc Jones held a video
hearing at which Plaintiff and a vocational expert (“VE”) testified. On January 23, 2019, the ALJ
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issued a decision finding Plaintiff not disabled and denying both her SSI and DIB. The ALJ made
the following findings under the five-step analysis:
1.

The claimant meets the insured status requirements of the Social Security
Act through December 31, 2019.

2.

The claimant has not engaged in substantial gainful activity since
September 30, 2016, the alleged onset date.

3.

The claimant has the following severe impairments: depression; diabetes;
left foot fifth digit amputation; trans metatarsal foot amputation for
gangrene of the left foot; diabetes type II; foot ulcers; neuropathy and spine
disorder status post lumbar surgeries and fixture implantation.

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 CFR Part 404 Subpart P, Appendix 1 (20 CFR 404.1520(d),
404.1525, 404.1526, 416.920(d), 416.925 and 416.926).

5.

The claimant has the residual functional capacity to perform sedentary
work as defined in 20 CFR 404.1567(a) and 416.967(a) except the claimant
can occasionally climb ramps and stairs; occasionally balance, stoop,
kneel, crouch and crawl; never climb ladders, ropes, or scaffolds and never
work at unprotected heights. Every 30 minutes she be allowed to shift
positions or alternate between sitting and standing for one to two minutes
at a time while remaining on task and she must use a medically necessary
cane at all times while walking. She is limited to simple work-related
decision and simple, routine tasks with no assembly line work or strictly
enforced daily production quotas and few changes in a routine work
setting. She can never interact with the general public; she can work in
proximity to other co-workers, but only with brief, incidental interaction
with other co-workers and no tandem job tasks requiring cooperation with
other co-workers to complete the task and she can occasionally interact
with her supervisors throughout the workday.

6.

The claimant is unable to perform any past relevant work.

7.

The claimant was 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
communication in English.
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9.

Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a
finding that the claimant is “not disabled,” whether or not the claimant has
transferable job skills.

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 September 20, 2016, through the date of this decision.

On January 25, 2019, Plaintiff filed a request for review, which the Appeals Council denied
on November 5, 2019, 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.
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)).
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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 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.”);
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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 erred in finding that Plaintiff did not meet or medically equal

Listing 1.04, failed to adequately explain his findings regarding Listing 1.04, and should have
acquired additional evidence before determining the RFC. The Commissioner argues that the
ALJ’s findings at Step Three were supported by substantial evidence and that the ALJ did not err
in concluding that the record was sufficient to issue a decision.
The determination of whether a claimant suffers from a listed impairment comes at steps
two and three of the ALJ’s analysis. Step two requires an examination of whether the claimant has
an impairment or combination of impairments that are severe. See 20 C.F.R. §§ 404.1520(a)(4)(ii);
416.920(a)(4)(ii). At step three, the ALJ must determine whether the claimant’s impairments meet
an impairment listed in the appendix to the social security regulations. See 20 C.F.R. §§
404.1520(a)(4)(iii); 416.920(a)(4)(iii). An individual suffering from an impairment that meets the
description of a listing or its equivalent is conclusively presumed to be disabled. See Bowen v.
Yuckert, 482 U.S. 137, 141 (1987). In order “[f]or a claimant to show that his impairment matches
a listing, it must meet all of the specified medical criteria.” Sullivan v. Zebley, 493 U.S. 521, 530
(1990). An impairment that manifests only some of the criteria will not qualify, no matter its
severity. Id. Accordingly, Plaintiff must have demonstrated that she met every aspect of the
following criteria to satisfy Listing 1.04:
1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal
arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc
disease, facet arthritis, vertebral fracture), resulting in compromise
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of a nerve root (including the cauda equina) or the spinal cord. With:
A. Evidence of nerve root compression characterized
anatomic distribution of pain, limitation of motion of
motor loss (atrophy with associated muscle weakness
weakness) accompanied by sensory or reflex loss and,
involvement of the lower back, positive straight-leg
raising test (sitting and supine) [ . . . .]

by neurothe spine,
or muscle
if there is

20 C.F.R. Pt. 404, Subpt. P, Appx. 1, § 1.04.
Plaintiff argues that she meets the requirements of Listing 1.04A and that the ALJ ignored
evidence. The ALJ stated:
[A]lthough the claimant sometimes had positive straight leg raising
and limited range of motion, there were also times when she did not.
Further, her sensation is typically intact and any muscle weakness
in her lower extremities occurred more recently and, even so, her
motor activity was documented as intact many times. No treating
doctor or medical expert suggested the claimant had extreme
functional limits that would be consistent with meeting or equaling
listing 1.04.
Plaintiff argues that the ALJ ignored evidence in the record. She points numerous imaging
results she received from 2016 to 2017, most recently revealing a nearly complete obliteration of
her lumbar spine at L4-L5 intervertebral disc space, along with many other diagnoses in the L4L5 disc space. Plaintiff contends that the ALJ admitted that evidence in the record was consistent
with the requirements of Listing 1.04, but inappropriately dismissed that evidence based on its
frequency. Plaintiff argues for example, that the ALJ noted positive straight leg tests but dismissed
them because “there were times when she did not [have positive straight leg raising].” Plaintiff
also argues that her muscle weakness was documented as early as March 15, 2016, not “recently”
as described by the ALJ.
The Commissioner argues that elsewhere in his opinion, the ALJ provided detailed
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discussion regarding the listing criteria that were not consistently present, mainly the evidence of
normal motor findings, and that this reasoning should be factored into the ALJ’s Step 3 analysis.
In particular, the Commissioner argues the ALJ analyzes reports that demonstrate that Plaintiff did
not have motor loss that was accompanied by sensory or reflex loss, a necessary criterion for
Listing 1.04. However, the ALJ did not thoroughly analyze the criteria that support Listing 1.04
later in his opinion. Instead, the ALJ admitted that Plaintiff experienced positive leg raise tests, a
necessary criterion for Listing 1.04, but cursorily dismissed those tests because Plaintiff also
exhibited negative raise tests. However, there is not requirement in the listing that the symptoms
be consistent over time and the ALJ did not provide any rationale for choosing to weigh one test
result over the other. Additionally, while the ALJ also rejected the findings of muscle weakness as
they occurred only “recently,” he failed to analyze the evidence of muscle weakness from 2016.
Finally, while the ALJ later analyzes tests that document normal motor function, he again failed
to analyze tests that support Listing 1.04, such as the testing by Plaintiff’s primary care physician
performed in April 2016.
Given the record of Plaintiff’s limitations, the ALJ’s cursory analysis of the criteria
supporting Listing 1.04 was inadequate. Edmonson v. Colvin, 14 CV 50135, 2016 WL 946973, at
*4 (N.D. Ill. Mar. 14, 2016) (“It is true that the ALJ engaged in a fairly lengthy recitation of the
medical evidence, but this was mostly a long chronology of doctor visits with little commentary
or analysis. Even when the ALJ offered some fleeting commentary, he never connected it back to
the specific 1.04(A) requirements.”). Although the claimant bears the burden of proving that her
condition meets the criteria of a listing, Ribaudo v. Barnhart, 458 F.3d 580, 583 (7th Cir. 2006),
the ALJ’s decision must “offer more than a perfunctory analysis of the listing.” Barnett, 381 F.3d
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at 668 (citing Brindisi v. Barnhart, 315 F.3d 783, 786 (7th Cir. 2003); Scott, 297 F.3d at 595–96;
Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002)). In this case, the ALJ failed to even analyze
the very first step – whether Plaintiff had a disorder of the spine. Patrick v. Comm’r of Soc. Sec.,
3:17-CV-00377-MGG, 2018 WL 3617260, at *3 (N.D. Ind. July 27, 2018) (rejecting an ALJ’s
1.04 Listing determination that did not contain a complete analysis of the requirements). While the
Commissioner attempted to formulate an argument on behalf of the ALJ, arguing that “evidence
does not show that Plaintiff had nerve root compromise with the required evidence to meet Listing
1.04,” the Commissioner may not present an argument not raised by the ALJ himself. SEC v.
Chenery Corp., 318 U.S. 80, 87–88 (1943); Parker v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010).
Accordingly, this case is being remanded because the ALJ performed an incomplete analysis of
the criteria for Listing 1.04.
Plaintiff also argues that, after the ALJ discounted opinions of the non-examining State
agency consultants he should have sent Plaintiff for a consultative examination or requested that a
medical examiner review Plaintiff’s file before determining her RFC. Because the case is being
remanded for a new analysis of Listing 1.04, the Court need not address these arguments. On
remand, the ALJ is remanded that the ALJ has a duty to develop the record. Smith v. Apfel, 231
F.3d 433, 437 (7th Cir. 2000).
On remand, the ALJ is directed to thoroughly analyze whether Plaintiff’s back impairments
meet or medically equal Listing 1.04. If the ALJ determines that Plaintiff’s impairments do not
meet or medically equal the criteria of a Listing, the ALJ must draw a logical bridge from the
evidence in the record to the conclusions about Plaintiff’s RFC, including evidence that supports
the ALJ’s conclusions.
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IV.

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

Opening Brief [DE 14], and REMANDS this matter for further proceedings consistent with this
opinion.
SO ORDERED this 18th day of February, 2021.
s/ John E. Martin
MAGISTRATE JUDGE JOHN E. MARTIN
UNITED STATES DISTRICT COURT
cc:

All counsel of record

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