Johnson v Commissioner of Social Security

Filing 35

OPINION AND ORDER REMANDING case to the Commissioner for further proceedings consistent with this Opinion. Signed by Judge William C Lee on 8/28/15. (ksp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
CHARLENE JOHNSON,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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CIVIL NO. 3:14cv1765

OPINION AND ORDER
This matter is before the court for judicial review of a final decision of the defendant
Commissioner of Social Security Administration denying Plaintiff's application for Disability
Insurance Benefits and Supplemental Security Income as provided for in the Social Security Act.
42 U.S.C. § 401 et seq. Section 205(g) of the Act provides, inter alia, "[a]s part of his answer,
the [Commissioner] shall file a certified copy of the transcript of the record including the
evidence upon which the findings and decision complained of are based. The court shall have
the power to enter, upon the pleadings and transcript of the record, a judgment affirming,
modifying, or reversing the decision of the [Commissioner], with or without remanding the case
for a rehearing." It also provides, "[t]he findings of the [Commissioner] as to any fact, if
supported by substantial evidence, shall be conclusive. . . ." 42 U.S.C. §405(g). The law
provides that an applicant for disability insurance benefits must establish an "inability to engage
in any substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to last for a continuous period of not less than 12 months. . .
." 42 U.S.C. §416(i)(1); 42 U.S.C. §423(d)(1)(A). A physical or mental impairment is "an
impairment that results from anatomical, physiological, or psychological abnormalities which are

demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C.
§423(d)(3). It is not enough for a plaintiff to establish that an impairment exists. It must be
shown that the impairment is severe enough to preclude the plaintiff from engaging in substantial
gainful activity. Gotshaw v. Ribicoff, 307 F.2d 840 (7th Cir. 1962), cert. denied, 372 U.S. 945
(1963); Garcia v. Califano, 463 F.Supp. 1098 (N.D.Ill. 1979). It is well established that the
burden of proving entitlement to disability insurance benefits is on the plaintiff. See Jeralds v.
Richardson, 445 F.2d 36 (7th Cir. 1971); Kutchman v. Cohen, 425 F.2d 20 (7th Cir. 1970).
Given the foregoing framework, "[t]he question before [this court] is whether the record
as a whole contains substantial evidence to support the [Commissioner’s] findings." Garfield v.
Schweiker, 732 F.2d 605, 607 (7th Cir. 1984) citing Whitney v. Schweiker, 695 F.2d 784, 786
(7th Cir. 1982); 42 U.S.C. §405(g). "Substantial evidence is defined as 'more than a mere
scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.'" Rhoderick v. Heckler, 737 F.2d 714, 715 (7th Cir. 1984) quoting
Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1410, 1427 (1971); see Allen v. Weinberger,
552 F.2d 781, 784 (7th Cir. 1977). "If the record contains such support [it] must [be] affirmed,
42 U.S.C. §405(g), unless there has been an error of law." Garfield, supra at 607; see also
Schnoll v. Harris, 636 F.2d 1146, 1150 (7th Cir. 1980).
In the present matter, after consideration of the entire record, the Administrative Law
Judge (“ALJ”) made the following findings:
1.

The claimant meets the insured status requirements of the Social Security Act
through March 31, 2012.

2.

The claimant has not engaged in substantial gainful activity since February 23,
2008, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
2

3.

The claimant has the following severe impairments: status-post right ankle fusion
with residuals; arthritis of the left ankle; disc herniation at L5-S1; obesity; and
asthma (20 CFR 404.1520(c) and 416.920(c)).

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.

After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform sedentary work as defined
in 20 CFR 404.1567(a) and 416.967(a), as the claimant can lift and carry 10
pounds occasionally and frequently; stand and/or walk for 1 hour in an 8-hour
workday; and sit for 7 hours in an 8-hour workday. The claimant must be able to
alternate between positions every 30 minutes. The claimant can never climb
ladders, ropes or scaffolds but can occasionally climb ramps and stairs; and
occasionally balance, stoop, kneel, crouch, and crawl. The claimant must avoid
unprotected heights; and can have only occasional exposure to inherently
dangerous machinery. The claimant can have occasional exposure to extreme heat
and cold; and no concentrated exposure to fumes, odors, dust, gases or poorly
ventilated areas.

6.

The claimant is unable to perform any past relevant work (20 CFR 404.1565 and
416.965).

7.

The claimant was born on February 9, 1974 and was 34 years old, which is
defined as a younger individual age 18-49, on the alleged disability onset date (20
CFR 404.1563 and 416.963).

8.

The claimant has at least a high school education and is able to communicate in
English (20 CFR 404.1564 and 416.964).

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 (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

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 (20 CFR 404.1569, 404.1569(a), 416.969,
and 416.969(a)).

11.

The claimant has not been under a disability, as defined in the Social Security Act,
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from February 23, 2008, through the date of this decision (20 CFR 404.1520(g)
and 416.920(g)).
(Tr. 14-23).
Based upon these findings, the ALJ determined that Plaintiff was not entitled to disability
insurance benefits. The ALJ’s decision became the final agency decision when the Appeals
Council denied review. This appeal followed.
Plaintiff filed her opening brief on April 6, 2015. On July 13, 2015, the defendant filed a
memorandum in support of the Commissioner’s decision, and on July 27, 2014, Plaintiff filed her
reply. Upon full review of the record in this cause, this court is of the view that the ALJ’s
decision should be remanded.
A five step test has been established to determine whether a claimant is disabled. See
Singleton v. Bowen, 841 F.2d 710, 711 (7th Cir. 1988); Bowen v. Yuckert, 107 S.Ct. 2287,
2290-91 (1987). The United States Court of Appeals for the Seventh Circuit has summarized
that test as follows:
The following steps are addressed in order: (1) Is the claimant
presently unemployed? (2) Is the claimant's impairment "severe"?
(3) Does the impairment meet or exceed one of a list of specific
impairments? (4) Is the claimant unable to perform his or her
former occupation? (5) Is the claimant unable to perform any other
work within the economy? An affirmative answer leads either to
the next step or, on steps 3 and 5, to a finding that the claimant is
disabled. A negative answer at any point, other than step 3, stops
the inquiry and leads to a determination that the claimant is not
disabled.
Nelson v. Bowen, 855 F.2d 503, 504 n.2 (7th Cir. 1988); Zalewski v. Heckler, 760 F.2d 160, 162
n.2 (7th Cir. 1985); accord Halvorsen v. Heckler, 743 F.2d 1221 (7th Cir. 1984). From the nature
of the ALJ's decision to deny benefits, it is clear that step five was the determinative inquiry.
4

Plaintiff filed applications for SSD and SSI on October 15, 2010, alleging disability
beginning February 23, 2008. (Dkt. 15 at 141-146; 147-153) The Disability Determination Bureau
(DDB) denied the Plaintiff's claims on February 3, 2011. Id. at 93-96; 97-100. Plaintiff requested
reconsideration, but the DDB again denied the Plaintiff on July 21, 2011. Id. at 102-104; 105-107.
Plaintiff filed a request for an administrative hearing on September 2, 2011. Id. at 108-110. On
November 16, 2012, Plaintiff appeared for a hearing in Valparaiso, IN before ALJ Mark Naggi of
the Valparaiso, IN Office of Disability Adjudication and Review (ODAR). Id. at 29-88. On
March 7, 2013, ALJ Naggi issued an unfavorable decision, concluding the Plaintiff's impairments
permitted the performance of other work. Id. at 9-27. Plaintiff filed a request for review by the
Appeals Council of the Office of Disability Adjudication and Review, but the Appeals Council
denied her request on May 30, 2014. Id. at 1-6. Plaintiff then timely filed a complaint with the
United States District Court for the Northern District of Indiana.
Plaintiff was born on February 9, 1974. At the time of her administrative hearing, she was
38 years of age. Id. at 165. Plaintiff completed one year of college, and has previously worked as
a cashier and a housekeeper. Id. at 170.
The record first documents Plaintiff’s treatment for severe foot pain in early 2008. On
February 23, 2008, Plaintiff presented to the emergency room with complaints of severe right
ankle pain after sustaining a fall. Id. at 211. Imaging performed while at the ER revealed an
oblique displaced fracture at the distal fibula, a transverse minimally displaced fracture of the
medial malleolus, and a small plantar calcaneal spur. Id. at 220. On March 3, 2008, Plaintiff
underwent an open reduction and internal fixation of her right ankle fracture. Id. at 257. In
September of 2008, Plaintiff presented to Dr. Thomas Barbour for a consultative physical
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examination. Id. at 262. She reported that “[s]he cannot stand for more than just a few minutes
and this has interfered with her work and also her activities at home.” Id. On examination, Dr.
Barbour documented that the Plaintiff “walks with a wide based gait. She had a right leg limp
favoring the right ankle. She had mild difficulty getting on and off the examination table due to
the right ankle pain.” Id. He observed trace pitting edema and limited range of motion in the right
ankle, an inability to walk on the heels or toes of the right foot, and an inability to squat. Id. The
examiner diagnosed “[c]hronic right ankle pain after an injury.” Id. at 263.
Plaintiff presented to Dr. Michael Salcedo for a podiatry consultation on October 16, 2008
and complained of persistent pain and tenderness in her right ankle. Id. at 305. After being
diagnosed with ankle joints synovitis with painful residual hardware, the Plaintiff underwent a
arthroscopy and synovectomy with removal of residual hardware. Id. at 307-308. Dr. Salcedo
observed “extremely large amounts of chronic synovitis both in the anteromeidal and anterolateral
and anterior aspects of the ankle joint.” Id. at 308. At a follow up in November, Plaintiff reported
that she was “in a lot of pain this week and that she has been on her feet a lot” because of her ill
father. Id. at 632. Dr. Salcedo observed nonpitting edema in the right ankle joint. Id. He discussed
“the importance of staying off of her foot, to keep it elevated, nonweightbearing (using
crutches).” Id. at 633. He ordered an x-ray, which showed interval removal of the hardware from
the fixation but demonstrated a small screw within the distal right fibula as well as calcaneal
spurs along the plantar aspect. Id. at 304. At a physical therapy consultation later in November,
Plaintiff exhibited diminished strength with plantar flexion and was instructed on how to “utilize
crutches appropriately.” Id. at 628. During a podiatry follow up in early December, she reported
that her pain “significantly reduced” and indicated she was “using her crutches to aid in
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ambulation.” Id. at 618. The Plaintiff was encouraged to transition off of her crutches. Id.
Plaintiff continued to present for podiatry consultations throughout the first half of 2009.
In January, she reported “a great decrease in symptoms” and indicated she was back to “her
previous level of activity.” Id. at 606. Nevertheless, Dr. Salcedo observed pain with motion in the
right ankle. Id. In February, Plaintiff reported attending physical therapy and being able to
ambulate without pain. Id. at 598. Dr. Salcedo noted that she “no longer complains of pain in the
area but states that once in a while, she will feel a pop that is not painful.” Id. During a follow up
in March, the Plaintiff reported she is “no longer experiencing pain in the ankle with the
exception of changes in the weather: She can still feel a moderate discomfort.” Id. at 595.
On April 16, 2009, Plaintiff presented to Dr. Thuy Ho for a podiatry consultation and
complained of right ankle pain (“Pain is 5/10 and occurs w/ activity”). Id. at 586. Dr. Ho
observed: “Calcaneal valgus foot type w/WB. Decreased rom of AJ DF w/ knees extended &
flexed. Pain to palpation along PT tendon, rt. B/l medial arch collapse. Single heel rise
demonstrates pain and weakness, but inversion of heel intact.” Id. Dr. Ho diagnosed tendonitis
and equinus deformity and applied “low-dye straps.” Id. at 587. A week later, the Plaintiff
indicated the “taping of feet” provided “great relief” and asked for prefabricated orthotics. Id. at
584. She indicated she was “willing to pay if not covered through Medicaid.” Id. An examination
revealed the same abnormalities as the examination from the week beforehand. Id. In May the
Plaintiff reported that she “[n]o longer has arch pain” with her orthotics but described “some
discomfort . . . at leading edge of orthotic.” Id. at 582. An examination showed persistent
abnormalities. Id. Plaintiff weighed 296 pounds in September of 2009, and was diagnosed with
morbid obesity. Id. at 580.
7

In 2010, Plaintiff began experiencing recurring ankle pain. On June 10, 2010, Dr. Larson,
one of Plaintiff’s treating podiatrists, wrote a note indicating: Please excuse this patient from
work: From 06/10/2010-07/01/2010. This patient may return with the following restrictions: sit
down job only, Must wear CAM boot.” Id. at 554. At a podiatry consultation four days later,
Plaintiff complained of recurring pain after recently twisting her right foot and ankle. Id. at 552.
She described pain in the anterior aspect of the ankle joint (5/10) and at the right plantar medial
arch (“constant 10/10”). Id. Plaintiff reported her pain and swelling decreased with elevation and
icing, but worsened with ambulation and weight bearing. Id. at 552. Dr. Larsen noted positive
edema of the right medial and lateral ankle, “calcaneal valgus foot type w/ WB,” “Decreased rom
of AJ DF w/ knees extended & flexed,” pain to palpation along the PT tendon, anterior ankle
joint, and right plantar medial arch, and evidence of bilateral medial arch collapse. Id. He
performed an ultrasound, which showed a slightly inflamed, thickened plantar fascia at “the area
of concern.” Id. at 553. Dr. Larsen instructed Plaintiff to return in two weeks and to wear her
CAM boot during all ambulation. Id. at 553.
On July 6, 2010, Plaintiff presented with reports that “her pain on the R side is a little
better, but mostly because she is using more of her L foot and now the L foot is hurting also. She
states the swelling went down after she had elevated and iced her foot for a few days and was
taking Advil. She states it was worsened with ambulation and weight-bearing.” Id. at 544. Dr. Bui
documented edema of the bilateral medial and lateral ankles, “calcaneal valgus foot type w/ WB,”
“Decreased rom of AJ DF w/ knees extended & flexed,” “Pain to palpation along PT tendon b/l,
anterior ankle joint, and plantar medial arch rt. B/l medial arch collapse.” Id. Dr. Bui diagnosed
foot tendonitis, acquired equinus foot deformity, limb pain, calcaneovalgus foot deformity, right
8

plantar fascia tear, and bilateral PT tendonitis. Id. at 544-545. Dr. Bui instructed the Plaintiff to
“reduce the time she spent on her foot to a minimum and rest her foot as much as possible.” Id. In
August the Plaintiff indicated she “is feeling much better at this time but just continues to have
some tenderness in her medial ankle, right. . . Pt. wearing CAM boots for longer walks, regular
shoes for short distances.” Id. at 541.
During September, Plaintiff reporting doing well because “the plantar fasciitis pain is
gone,” but described persistent tenderness in her right ankle and stated, “couple days ago she
fe[lt] a pop in her R ankle it is mildly painful and does have some swe[l]ling associated with it.”
Id. at 538. Dr. Bui chose to order an x-ray due to the recent report of trauma. Id. at 539.
Performed on September 13th, the x-ray revealed “prominent” bilateral calcaneal spurs, bilateral
pes planus deformities with weight bearing, and retained orthopedic hardware within the distal
right fibular consistent with an old fracture. Id. at 464. On September 20, 2010, Plaintiff
presented to Dr. Duyet Bui with complaints of right plantar medial arch pain, bilateral PT
tendonitis, and right medial ankle tenderness. Id. at 534. Dr. Bui noted positive edema of the right
medial and lateral ankle, as well as “Calcaneal valgus foot type w/ WB. Decreased rom of AJ DF
w/ knees extended and flexed. Pain to palpation along PT tendon b/l, anterior ankle joint, and
plantar medial arch rt. B/l medial arch collapse.” Id. at 535. Dr. Bui diagnosed neuropraxia, foot
tendonitis, acquired equinus foot deformity, limb pain, calcaneovalgus deformity of foot, bilateral
PT tendonitis, and ankle pain. Id. at 535-536. Dr. Bui included in Plaintiff’s plan to continue
supportive shoe gear, perform stretching exercises three times daily, and to return in eight weeks.
Id. at 536. He also discussed how the Plaintiff’s weight affected her foot pain. Id.
On November 29, 2010, Plaintiff returned to Dr. Bui with complaints of worsening foot
9

and ankle pain. Id. at 698. Dr. Bui noted limited ROM of the bilateral lower extremities;
decreased foot arch height; out-toe upon ambulation; pain on palpation of the course of the
peroneal tendon bilaterally, especially at the fibular groove down the cuboid; generalized diffuse
pain on ROM of ankle/STJ/CC joints; pain on palpation of sinus tarsal; and pain on palpation of
TP tendon and its insertion. Id. at 700. Dr. Bui diagnosed acquired equinus deformity of the foot,
calcaneovalgus talipes, peroneal tendonitis, and limb pain. Dr. Bui performed an ultrasound on
Plaintiff’s right foot in office, which showed mild edema surrounding the peroneal longus at the
peroneal groove. Id The physician administered an injection for pain reduction. Id.
Plaintiff underwent imaging of her right foot on December 17, 2010 due to persistent pain.
Id. at 731. The imaging showed intermetatarsal bursitis of the first web space and hallux valgus
deformity. Id. at 732. An MRI of Plaintiff’s right ankle performed a few days later revealed mild
degenerative changes of the tibiotalar joint with mild anterior osteophyte, mild nonspecific
subcutaneous edema noted laterally and to a lesser extent medially, fatty atrophy of the abductor
digit minimi muscle which may be secondary to remote denervation (Baxter’s neuropathy), and
heel spur. Id. at 726. Dr. Bui also ordered an MRI of Plaintiff’s left ankle performed that same
day, which revealed fatty atrophy of the abductor digiti minimi muscle, likely secondary to
remote denervation/Baxter’s neuropathy; mild subcutaneous edema at the lateral aspect of the
ankle; and thickening of the anterior talofibular ligament. Id. at 729.
On January 22, 2011, Plaintiff presented to Dr. Mahmoud Yassin Kassab for a physical
examination at the request of the DDB. Id. at 705. Plaintiff complained of severe right ankle pain,
which worsened by standing and walking on the foot and which was relieved by keeping her leg
elevated and taking pain medication. She further reported being able to slowly walk one block
10

and slowly climb one flight of stairs with pain. Id. Dr. Kassab noted swelling of the right ankle, a
mild antalgic gait on the right side, and limited motion in the right ankle. He diagnosed right
ankle pain status post reconstructive surgery. Id. at 706.
On May 25, 2011, Plaintiff presented to Dr. Michael Salcedo with complaints of
generalized foot and ankle pain. Id. at 738. Dr. Salcedo noted “Pt is now using a walker to get
around because of B/L foot pain. She has reduced her activity level to the point where the only
exercise that she is getting is walking her daughter from the bus stop which is only six houses
down the road.” Id. Dr. Salcedo noted limited bilateral ankle range of motion, pain on ROM
significantly on the right with edema, and pain on palpation of the anterior aspect of the ankle
joint. Id. at 740. Dr. Salcedo recorded in his plan “Discussed the surgical options of fusion vs
ankle scope with the pt… Pt understands that this may bring incomplete resolution of pain but
could buy her time till a fusion should be performed.” Id. at 741. Later that same day of May 25,
2011, Plaintiff presented to Dr. Michael Salcedo for a right ankle arthroscopy with synovectomy
and anterior tibial distal debridement. Id. at 734. Dr. Salcedo observed “extensive synovitic as
well as scarring anterior impingement that did impinge with the dorsiflexion of the ankle joint” as
well as “prominent anterior distal tibial lifting.” Id. at 735.
Plaintiff underwent another x-ray of her right foot on September 1, 2011 due to persistent
pain. Id. at 858. This study showed minimal flattening of the arch, plantar calacaneal spur, and
hallux valgus deformity. Id. at 858. On November 4, 2011, Plaintiff presented to Dr. Michael
Salcedo for a right ankle arthrodesis, due to her pre-op diagnosis of right ankle osteoarthritis. Id.
at 840. On November 9, 2011, a treating physician prescribed a “wheelchair and rollabout
walker” and instructed the Plaintiff “to elevate as much as possible.” Id. at 937. X-ray imaging of
11

the Plaintiff’s right ankle taken on December 26, 2011 showed increased callus formation at the
distal fibular osteotomy site. Id. at 817.
On February 16, 2012, Plaintiff presented to Physical Therapist Mary Harvey for her
initial evaluation, ordered by Dr. Cassandra Papak. Id. at 800. Plaintiff complained of constant
pain on the lateral ankle, posterior ankle in the Achilles area, as well as on the medial aspect of
the right ankle, all rated at 8-9/10; numbness in the distal foot; and intermittent daily sharp
stabbing pains in the foot. Id. Ms. Harvey recorded Plaintiff’s stated goal of “To be able to walk
without a walker with her special shoe.” Ms. Harvey noted several abnormalities in Plaintiff’s
ambulation, including an externally rotated right foot with weight bearing on the lateral aspect of
the foot, decreased hip extension during gait, and use of a rolling walker with a step two gait
pattern with hip drop on the left and lack of heel stroke or push off gait pattern. Id. Range of
motion showed moderate limitations in hip extension bilaterally and neutral dorsiflexion on the
right. Decreased strength was observed at the bilateral hip flexors, hip abductors, hip extensors,
quads, hamstrings, dorsiflexors, and plantarflexors. Id. With palpation, Plaintiff complained of
tenderness along the medial and lateral surgical scars and the muscle belly of the peroneal
muscles on the right with accompanied muscle spasm. Id. Ms. Harvey noted, “Major problem
area is pain and inability to walk long distances due to increasing pain. Patient also has weakness
in the lower extremities bilaterally with greater weakness on the right.” Id. at 801. The therapist
set a goal of getting the clamant to “walk without a walker.” Id.
X-ray imaging of the right ankle on February 16, 2012 showed joint space loss present at
the mortise level superiorly and laterally, plantar calcaneal spurring, and “no definite solid bony
union” of the fibula. Id. at 815. At a visit with Dr. Julia Pagano on February 22, 2012, Plaintiff
12

received instructions to keep her right ankle elevated and a prescription for Gabapentin. Id. at
911. Plaintiff underwent a CT scan of her right ankle on March 7, 2012 due to persistent pain in
the right ankle. Id. at 797. The images revealed a fracture osteotomy site, a nonunion with callus
formation (“no evidence for bony fusion”), small fragments of bone seen within the distal fibulatibia joint and posteriorly at the level of the distal fibula-talus joint, and partial fusion of the fibula
with the distal tibia and talus. Id.
Plaintiff returned to Dr. Cassandra Papak for a follow up on March 21, 2012 with
complaints of “pins and needles” feeling in her feet. Id. at 905. Dr. Papak recorded Plaintiff’s use
of an assistive walker as well as mild pain to palpation on the lateral right ankle. Id. Dr. Papak
noted in her summary that “Patient encouraged to continue elevating right ankle and may apply
ice PRN.” Id. She also increased Plaintiff’s Gabapentin dose, elongated her physical therapy
regimen, and dispensed a new pair of custom orthotics. Id. at 907. On April 27, 2012, Plaintiff
presented to Dr. Amer Kazi for a consultation regarding her foot pain. Id. at 879. Plaintiff
complained of ankle and foot pain with burning and tingling in her right foot and big toe that
radiated up to the ankle. She stated exacerbating factors of walking and standing, and described
no relieving factors. Id. Dr. Kazi observed a broad-based and antalgic gait, as well as bilateral
lumbosacral tenderness, positive right sided straight leg raise (SLR) test at 60 degrees, positive
Patrick’s tests bilaterally, bilateral tenderness at the knee joints, ankle tenderness, mild swelling
of the ankle extending up the leg, positive Tinel’s sign at the dorsum of the foot, reduced
sensation at the dorsum of the right foot in the first interdigital space, an absent right ankle jerk
reflex, and hypoactive left ankle jerk reflex. Id. at 881. Dr. Kazi diagnosed back pain, lumbar or
lumbosacral intervertebral disc degeneration, osteoarthrosis, pain radiating to right leg, and joint
13

pain involving the ankle and foot. Id. Dr. Kazi ordered imaging of the lumbar spine and bilateral
knees, as well as prescriptions for Nucynta, Lidoderm patches, and Mobic. He noted that “Her
pain in the ankle and foot appears to be multifactorial related degenerative changes and postop
changes. She does have neuralgiform pain in her medial side of her foot which could have been
caused by scarring after the surgery… I also feel that her pain in the leg and back is related to
DDD.” Id. at 882.
On May 25, 2012, Plaintiff presented for an MRI of her lumbar spine. Id. at 883. The
imaging showed mild facet degenerative changes and ligamentum flavum thickening at L4-L5; as
well as facet degenerative changes at L5-S1 with a central to right paracentral disc herniation
contacting the traversing right S1 nerve root. Id. On May 29, 2012, Plaintiff underwent x-ray
imaging of her bilateral knees, ordered by Dr. Kazi due to a history of foot, knee, and back pain.
Id. at 795. The imaging showed mild arthritic changes. Id.
Plaintiff presented to Dr. Steven Moore on September 26, 2012 with complaints of painful
left ankle and foot pain. Id. at 894. Dr. Moore noted minimal pain with palpation of the medial
gutter of the ankle joint and decreased right ankle joint ROM. Id. at 895. Dr. Moore diagnosed
ankle pain, primary localized osteoarthrosis of the ankle and foot, and acquired cavovarus foot
deformity. He administered an injection to Plaintiff’s left ankle in office, ordered x-ray imaging,
and prescribed Naproxen. Id. at 896-897. On October 16, 2012, Plaintiff returned to Dr. Moore
and indicated that Naproxen failed to alleviate her pain. She complained of a painful left ankle as
well as increased knee and back pain. Id. at 890. Dr. Moore ordered a pain management
consultation. Id. at 892. On November 2, 2012, Plaintiff presented to Dr. Karina Zapiecki with
complaints of pain in the right ankle, right knee, and lower back. Id. at 885. Dr. Zapiecki noted
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tenderness to palpation of the spine in the lower back area and pain with palpation of the right
foot/ankle. Id. He diagnosed morbid obesity and noted the Plaintiff “has to increase her exercise
which will be difficult for her due to her left knee pain and also right ankle pain.” Id. at 886.
On January 10, 2013, Plaintiff presented to Dr. Ralph Inabnit for a physical consultative
examination at the request of the DDB. Id. at 968. Dr. Inabnit noted that Plaintiff presented to the
exam using a walker, and had a history of four procedures on her right ankle. Id. Plaintiff
complained of chronic bilateral ankle pain; bilateral knee pain; and issues with walking, standing,
sitting, lifting, and climbing. Id. She indicated she “uses a walker to walk” but “can walk without
the walker a few steps.” Id. On examination, Dr. Inabnit observed decreased breath sounds, mild
prolongation of the expiratory phase, expiratory wheezes heard throughout, pain in the joint on
the medial and lateral compartment of the right and left ankle, a “slow and purposeful” gait, 1/5
reflexes bilaterally of the upper extremities and knee jerks, 0/5 bilateral ankle jerk reflex, and no
motion at all in the right ankle. Id. at 972-973. Dr. Inabnit wrote, “She is on a walker. She prefers
to stand or sit for no more than 15-20 minutes and can lift 10 pounds.” Id. at 973. Dr. Inabnit then
completed a questionnaire and concluded she can occasionally lift and carry 20 pounds, sit, stand
or walk for two hours at a time and for four total hours in an eight hour day, occasionally engage
in reaching, handling, or fingering with both upper extremities, occasionally engage in foot
controls with both feet, and occasionally climb stairs and ramps. Id. at 976-979. He opined that
she does not need an assistive device to ambulate. Id. at 977.
On November 16, 2012, Plaintiff appeared for a hearing in Valparaiso, IN before ALJ
Mark Naggi of the Valparaiso, IN Office of Disability Adjudication and Review (ODAR). Id. at
29-88. Plaintiff reported gaining weight after her right ankle fusion because “[t]hey had me in the
15

wheelchair.” Id. at 40. She testified that she no longer drives because “I get the pains that shoot
up from my ankle.” Id. at 41. She indicated she stopped working in 2008 after “I got out of work
that night and broke my ankle and from then on instead of it getting better it has gotten worse.”
Id. at 44. Plaintiff testified that she cannot work because of “the pains I have that shooting [sic]
up my leg . . . sometimes there’s the one that it burns, my whole ankle burns from the back and
it’ll shoot up . . .” Id. at 47. She stated that doctors were considering operating on her left ankle
because “my leg gave out on me twice.” Id. at 48. The Plaintiff reported difficulty sitting for
prolonged periods due to “a numbness I get.” Id. at 49. She reported taking her walker
“everywhere I go” because “[i]ts; the only way I can hold myself up and get around.” Id. at 60.
Plaintiff testified that she cannot mop or vacuum, and relies on her daughter to complete the
laundry. Id. at 61-62. She indicated she grocery shops but reported, “I just sit in the cart and [her
friend will] get all the stuff and put it in there and I’ll just give them the card and that’s it.” Id. at
62. She explained that she sits “in the rider, the ride around cart.” Id. Although Plaintiff admitted
going to church frequently to pray, she indicated “the pastor picks us up.” Id. at 65.
The vocational witness, Richard Fisher, then testified. After the witness described the
Plaintiff’s past work, the ALJ asked him to consider a hypothetical individual with the same age,
education and work experience as the Plaintiff but physically capable of lifting 10 pounds, sitting
for seven hours with the ability to change positions every half hour, standing and walking for one
hour each, occasionally climbing ramps or stairs, balancing, stooping, kneeling, crouching, and
crawling, never climbing ladders and scaffolds, never working around unprotected heights,
occasionally working around inherently dangerous machinery or extreme temperatures, and
having no concentrated exposure to pulmonary irritants. Id. at 76-77. The witness testified that
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such person could perform the positions of ampule sealer, telephone quote clerk, and order clerk.
Id. at 76-78. The witness indicated a person would be unable to sustain work if they were off-task
five minutes an hour or 10 percent of the workday. Id. at 79-80.
On March 7, 2013, ALJ Naggi issued an unfavorable decision. Id. at 9-27. At Step Two,
the ALJ concluded that the Plaintiff suffers from the following severe impairments: status-post
right ankle fusion with residuals; arthritis of the left ankle; disc herniation of L5-S1; obesity; and
asthma. Id. at 14. He found that the Plaintiff’s impairments of mild arthritis in the knees and
hypertension to be non-severe impairments within the meaning of the Social Security Act. Id. at
15. At the first half of Step Three, the ALJ concluded that the Plaintiff did not have an
impairment or combination of impairments that met or medically equaled any of the listed
impairments. Id. At the second half of Step Three, the ALJ found that the Plaintiff retained the
capacity to sustain sedentary work as the Plaintiff can lift and/or carry 10 pounds occasionally and
frequently; stand and/or walk for 1 hour in an 8-hour workday; and sit for 7 hours in an 8-hour
workday. The Plaintiff must be able to alternate between positions every 30 minutes. The Plaintiff
can never climb ladders, ropes, or scaffolds but can occasionally climb ramps and stairs; and
occasionally balance, stoop, kneel, crouch, and crawl. The Plaintiff must avoid unprotected
heights; and can only have occasional exposure to inherently dangerous machinery. The Plaintiff
can have occasional exposure to extreme heat and cold; and no concentrated exposure to fumes,
odors, dust, gases or poorly ventilated areas. Id. at 16. At Step Four, the ALJ concluded the
Plaintiff could not perform past relevant work of a retail sales clerk, fast food worker, and a hotel
clerk. Id. at 21. At Step Five, the ALJ found that the Plaintiff could perform the following
occupations: ampule scaler, telephone quote clerk, and a food and beverage order clerk. Id. at 22.
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Plaintiff's claim for benefits was denied upon this Step Five finding. Id.
In support of reversal or remand of the Commissioner’s decision, Plaintiff first argues that
the Commissioner’s finding that the Plaintiff’s foot impairment or combined impairments do not
meet or equal Listing 1.03 is not supported by substantial evidence and the relevant legal
standards. At Step Three, the ALJ is required to determine whether the Plaintiff meets or equals
any of the listed impairments found in 20 C.F.R. Pt. § 404, Subpt. P, Appendix 1. Barnett v.
Barnhart, 381 F.3d 664, 670 (7th Cir. 2004); 20 C.F.R. § 404.1520(a)(4)(iii). For each listed
impairment, there are objective medical findings and other specific requirements that must be met
to satisfy the criteria of that Listing. 20 C.F.R. §§ 404.1525(c)(2)-(3), 416.925(c)(2)-(3). When a
claimant satisfies all such criteria to meet a listed impairment, that person is deemed disabled and
is automatically entitled to benefits. Barnett, 381 F.3d at 668; 20 C.F.R. §§ 404.1525(a),
416.925(a); 404.1525(c)(3) and 416.925(c)(3).
Even if a Plaintiff’s impairment does not satisfy each of the specified elements of a Listed
Impairment, it can result in a finding of disability if the record contains "other findings related to
[the] impairment that are at least of equal medical significance to the required criteria." 20 C.F.R.
§ 416.926; 20 C.F.R. § 404.1526; Barnett, 381 F.3d at 668 ("A claimant may also demonstrate
presumptive disability by showing that her impairment is accompanied by symptoms that are
equal in severity to those described in a specific listing."). Medical equivalence may also be found
when the Plaintiff has a combination of impairments which do not individually meet a listed
impairment, but are "at least of equal medical significance to those of a listed impairment" when
viewed in totality. 20 C.F.R. §404.1526(b) (3) and 416.926(b) (3).
Listing 1.03 presumes disability for a claimant who undergoes “[r]econstructive surgery or
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surgical arthrodesis of a major weight bearing joint with inability to ambulate effectively . . . and
return to effective ambulation did not occur, or is not expected to occur, within 12 months of
onset.” 20 C.F.R. Pt. 404, Subpt. P, Appendix 1 § 1.03. “Inability to ambulate effectively” is
further defined as follows:
An extreme limitation of the ability to walk; i.e., an impairment(s) that interferes
very seriously with the individual's ability to independently initiate, sustain, or
complete activities. Ineffective ambulation is defined generally as having
insufficient lower extremity functioning to permit independent ambulation without
the use of a hand-held assistive device(s) that limits the functioning of both upper
extremities.
Id. at § 1.00B2b(1). The Listing goes on to explain that to ambulate effectively, a claimant “must
be capable of sustaining a reasonable walking pace over a sufficient distance to be able to carry
out activities of daily living.” Id. at § 1.00B2b(2). An example of ineffective ambulation would be
“the inability to walk without the use of a walker.” Id. Moreover, “the ability to walk
independently about one's home without the use of assistive devices does not, in and of itself,
constitute effective ambulation.” Id.
In the present case, Plaintiff presented evidence showing a history of surgery on her right
ankle and demonstrating that she was using a walker to ambulate by May of 2011. (Tr. at 738 (Dr.
Salcedo noting “Pt is now using a walker to get around because of B/L foot pain. She has reduced
her activity level to the point where the only exercise that she is getting is walking her daughter
from the bus stop which is only six houses down the road.”)) Dr. Salcedo performed a right ankle
arthroscopy with synovectomy and anterior tibial distal debridement. Id. at 734. He observed
“extensive synovitic as well as scarring anterior impingement that did impinge with the
dorsiflexion of the ankle joint” as well as “prominent anterior distal tibial lifting.” Id. at 735. In

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November of 2011, Dr. Salcedo performed a right ankle arthrodesis. Id. at 840. On November 9,
2011, another treating physician prescribed a “wheelchair and rollabout walker” and instructed
the Plaintiff “to elevate as much as possible.” Id. at 937.
Plaintiff also presented evidence demonstrating that she did not obtain effective
ambulation within a year after her right ankle arthrodesis. In February of 2012, Plaintiff’s physical
therapist noted, “Major problem area is pain and inability to walk long distances due to increasing
pain. Patient also has weakness in the lower extremities bilaterally with greater weakness on the
right.” Id. at 801. The therapist set a goal of getting the clamant to “walk without a walker.” Id.
Imaging later that month showed “no definite solid bony union” of the fibula and additional
imaging performed in March a fracture osteotomy site, a nonunion with callus formation (“no
evidence for bony fusion”), small fragments of bone seen within the distal fibula-tibia joint and
posteriorly at the level of the distal fibula-talus joint, and partial fusion of the fibula with the
distal tibia and talus. Id. at 815, 797. The Plaintiff’s physician documented that she was using a
walker in March of 2012. Id. at 905. When she met with Dr. Inabnit in January of 2013, she
indicated she “uses a walker to walk” but “can walk without the walker a few steps.” Id. at 968.
Dr. Inabnit observed pain in the joint on the medial and lateral compartment of the right and left
ankle, a “slow and purposeful” gait, 1/5 reflexes bilaterally of the upper extremities and knee
jerks, 0/5 bilateral ankle jerk reflex, and no motion at all in the right ankle. Id. at 972-973.
In light of this evidence, Plaintiff argues that the ALJ erred by failing to adequately
explain how the Plaintiff’s right ankle impairment did not satisfy the criteria of Listing 1.03. The
Seventh Circuit has emphasized, "If a decision ‘lacks evidentiary support or is so poorly
articulated as to prevent meaningful review,’ a remand is required." Kastner v. Astrue, 697 F.3d
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642, 646 (7th Cir. 2012) (quoting Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002)).
Reversing an ALJ’s analysis of whether a Plaintiff’s impairment met or equaled the relevant
listing, the court wrote:
An unarticulated rationale for denying disability benefits generally requires
remand. . . We have repeatedly held that an ALJ must provide a logical bridge
between the evidence in the record and her conclusion.
Id. at 648 (citations omitted). Both the Seventh Circuit and this Court have reversed ALJ
determinations on the basis of a poorly articulated listing analysis. Brindisi v. Barnhart, 315 F.3d
783, 786 (7th Cir. 2003) (reversing findings which were "devoid of any analysis that would enable
meaningful review"); Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002)("By failing to discuss the
evidence in light of Listing 112.05’s analytical framework, the ALJ has left this court with grave
reservations as to whether his factual assessment addressed adequately the criteria of the listing");
Hiatt v. Colvin, No. 11-cv-1282, 2013 U.S. Dist. LEXIS 4578 at 12-16 (S. D. Ind. March 29,
2013)("The ALJ also committed legal error by not sufficiently articulating her evaluation of the
evidence against the criteria of Listing 1.04(C) and by not explaining an accurate and logical
relationship between the evidence and her ultimate findings.")
This court agrees that the ALJ’s analysis of the Plaintiff’s ability to ambulate under the
criteria of Listing 1.03 does not provide substantial evidence for his unfavorable finding. He
acknowledged the evidence of an impaired gait and evidence of the Plaintiff’s use of a walker in May
2011 but then wrote that “there is no prescription or any doctor recommending it.” (Tr. at 15) Noting
evidence that she was using a walker in November of 2011, the ALJ again wrote that “there is still no
prescription or treating provider recommending it.” Id. However, the ALJ’s repeated factual assertion
is erroneous. Indeed, a treating physician prescribed a “wheelchair and rollabout walker” in
November of 2011. Id. at 937. In any event, the ALJ erred by failing to obtain a reliable medical
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opinion regarding whether her combined physical impairments equal the criteria of the listing.
Whether a Plaintiff’s impairment(s) equals a listing is a medical judgment, and an ALJ must
consider an expert’s opinion on the issue. Barnett, 381 F.3d at 670 (citing 20 C.F.R. §
404.1526(b)). Specifically, SSR 96-6p further provides that an adjudicator "must obtain an
updated medical opinion" when she determines either "the symptoms, signs, and laboratory
findings reported in the case record suggest that a judgment of equivalence may be reasonable" or
when "additional medical evidence is received that . . . may change the State agency medical or
psychological consultant’s finding" regarding equivalence. Simpson v. Colvin, 2013 U.S. Dist.
LEXIS 106894 at *16-17 (S.D. Ind. July 31, 2013). Thus, a remand is necessary on this point.
Plaintiff next argues that the Commissioner’s finding that the Plaintiff can sustain work
requiring her to stand or walk without ever using a walker is not supported by substantial
evidence or the relevant legal standards. The ALJ disregarded the Plaintiff’s allegations of a need
to use a walker to ambulate due to foot pain by writing that “there is no record of any of her
treating providers recommending it” and “there is again no prescription in the record.” (Tr. at 20)
However, an ALJ must consider all relevant medical evidence and cannot cherry-pick facts that
support a finding of non-disability while ignoring evidence supporting disability. Denton v.
Astrue, 596 F.3d 419, 425 (7th Cir. 2010) (citing Myles v. Astrue, 582 F.3d 672, 678 (7th
Cir.2009)). An adjudicator must confront the evidence that does not support his conclusion and
explain why it was rejected. Indoranto v. Barnhart, 374 F.3d 470, 474 (7th Cir. 2004); Kasarsky v.
Barnhart, 335 F.3d 539, 543 (7th Cir. 2003); Brindisi v. Barnhart, 315 F.3d 783, 786 (7th
Cir.2003). Clearly, the ALJ’s credibility determination is flawed because he ignored evidence that
a treating physician prescribed a “wheelchair and rollabout walker” in November of 2011. Id. at
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937.
Additionally, the ALJ improperly relied on Dr. Inabnit’s opinion that Plaintiff does not
need an assistive device to ambulate and failed to explain why he rejected the portions of the
physician’s opinion which conflicted with his RFC assessment. The Social Security
Administration’s regulations provide that “[r]egardless of its source, we will evaluate every
medical opinion we receive.” 20 C.F.R. § 404.1527(c). They also provide that an ALJ must weigh
such opinions with consideration of whether they treated the Plaintiff, whether they examined the
Plaintiff, whether they have “consider[ed] all the pertinent evidence,” and whether the opinion is
“consistent . . . with the record as a whole.” Id. at § 404.1527(c)(1)-(4). Further, SSR 96-8p
mandates that “[i]f the RFC assessment conflicts with an opinion from a medical source, the
adjudicator must explain why the opinion was not adopted.” An ALJ is required to provide a
logical and accurate bridge between the evidence and his conclusions in order to enable
meaningful review. Roddy, 705 F.3d at 636. This court holds that, in the present case, the ALJ
improperly relied on Dr. Inabnit’s opinion that the Plaintiff does not need an assistive device
without adequately weighing the physician’s conclusion. The ALJ disregarded the consultative
examiner’s opinion about the Plaintiff’s ability to stand and walk, thus the ALJ should not have
relied on that same opinion to conclude the Plaintiff can ambulate without ever using an assistive
device and did not exhibit an inability to ambulate effectively.
The ALJ also failed to explain why he rejected Dr. Inabnit’s conclusions about the
Plaintiff’s manipulative limitations. While the ALJ need not discuss every piece of evidence in
the record, he must confront the evidence that does not support his conclusion and explain why it
was rejected. Indoranto, 374 F.3d at 474. Despite writing that Dr. Inabnit’s conclusions are
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“somewhat consistent with the record,” the ALJ failed to explain why he disregarded the
physician’s conclusion that Plaintiff can only reach, handle, finger, feel, push, and pull on an
occasional basis with both upper extremities. (Tr. at 21, 978). The ALJ failed to build a logical
bridge between the evidence and his conclusion. Thus, remand is warranted on this point also.
Next, the Plaintiff asserts that the ALJ improperly rejected the Plaintiff’s allegations of
difficulty standing or walking without using a walker without offering a reasonable, supported
rationale. In assigning a Residual Functional Capacity, the ALJ must consider the Plaintiff’s
testimony, the objective medical evidence, and opinions from medical sources. 20 C.F.R. §
404.1545(3). A court will not disturb the weighing of credibility so long as the determinations are
not “patently wrong.” Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir.2000); Prochaska v. Barnhart,
454 F.3d 731, 738 (7th Cir.2006) (citing Carradine v. Barnhart, 360 F.3d 751, 753 (7th
Cir.2004)). However, an ALJ does not possess unlimited discretion to reject a Plaintiff’s
testimony. When the credibility determination rests on “objective factors or fundamental
implausibilities rather than subjective considerations [such as a Plaintiff's demeanor], appellate
courts have greater freedom to review the ALJ's decision.” Clifford, 227 F.3d at 872. A court may
reverse a credibility determination if it finds that the rationale provided is “unreasonable or
unsupported.” Prochaska, 454 F.3d at 738 (citing Sims v. Barnhart, 442 F.3d 536, 538 (7th
Cir.2006)).
In the present case, as noted above, the ALJ inaccurately concluded that no treating
physician has ever recommended or prescribed the use of walker. The ALJ also wrote, “The
claimant’s daily activities, course of treatment, and work history are inconsistent with her
allegations of disabling impairments.” (Tr. at 19) Yet the ALJ failed to explain how any of the
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activities the Plaintiff can perform undermine her allegations of difficulty walking or standing and
a need for a walker to ambulate. Id. Indeed, he merely cited the fact that “her daughter does all of
the chores and cooking” as well as the fact that “she uses a motorized cart and the grocery store
and takes her walker everywhere.” Id. These activities do not contradict the Plaintiff’s allegations.
Moreover, the Seventh Circuit has repeatedly explained that “[t]he critical differences between
activities of daily living and activities in a full-time job are 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 [he] would be by an employer.” Hughes v. Astrue, 705
F.3d 276, 278-279 (7th Cir. 2013) (citations omitted); Craft v. Astrue, 539 F.3d 668, 680 (7th Cir.
2008). Thus, the Plaintiff’s limited daily activities do not provide the logical bridge to uphold the
ALJ’s decision to reject her allegations of difficulty standing or walking and a need for a walker.
The ALJ’s discussion of the Plaintiff’s “course of treatment” is even more problematic.
The ALJ seemed to emphasize that the Plaintiff improved with treatment, but overlooked how she
underwent multiple, aggressive surgeries in an effort to alleviate her severe foot pain. (Tr. at 1920) As SSR 96-7p explains:
In general, a longitudinal medical record demonstrating an individual's attempts to
seek medical treatment for pain or other symptoms and to follow that treatment
once it is prescribed lends support to an individual's allegations of intense and
persistent pain or other symptoms for the purposes of judging the credibility of the
individual's statements. Persistent attempts by the individual to obtain relief of
pain or other symptoms, such as by increasing medications, trials of a variety of
treatment modalities in an attempt to find one that works or that does not have side
effects, referrals to specialists, or changing treatment sources may be a strong
indication that the symptoms are a source of distress to the individual and
generally lend support to an individual's allegations of intense and persistent
symptoms.
The ALJ in this case erred by ignoring the Plaintiff’s efforts to treat her foot pain supported her
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allegations of a need for a walker to ambulate. Additionally, the mere fact that the Plaintiff
experienced some improvement from treatment does not contradict her allegations of persistent
symptoms. See Scott v. Astrue, 647 F.3d 734, 739-740 (7th Cir. 2011) (“There can be a great
distance between a patient who responds to treatment and one who is able to enter the
workforce”). Thus, the Commissioner’s adverse credibility determination is “patently wrong” and
requires a remand. Clifford, 227 F.3d at 872.
Conclusion
On the basis of the foregoing, this matter is REMANDED to the Commissioner for further
proceedings consistent with this opinion.

Entered: August 28, 2015.

s/ William C. Lee
William C. Lee, Judge
United States District Court

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