Ammerman v. Colvin

Filing 23

OPINION AND ORDER: The decision of the Administrative Law Judge is REVERSED and this matter is REMANDED for further consideration consistent with this Opinion and Order. Clerk DIRECTED to enter judgment in favor of Plaintiff Lisa Gayle Ammerman and against Defendant Commissioner of Social Security. Signed by Judge Philip P Simon on 3/27/17. (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
LISA GAYLE AMMERMAN,
Plaintiff,
v.
NANCY BERRYHILL,1 Acting Commissioner
of the Social Security Administration,

Defendant.

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) Cause No. 3:15-cv-542
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OPINION AND ORDER
Lisa Ammerman suffers from back pain, neck pain, carpal tunnel syndrome,
anxiety, and panic attacks. She has unsuccessfully applied for social security income
three times, most recently on September 27, 2012, when an Administrative Law Judge
found her capable of sedentary work and not disabled within the meaning of the Social
Security Act. (A.R. at 19–38.2) Ammerman argues that the ALJ’s decision must be
reversed because: (1) he erred in finding in Step Three that her impairments did meet or
equal Listing 1.04 (disorders of the spine); (2) he failed to accord weight to the opinions
of several medical providers; and (3) his opinion is not supported by substantial
evidence and contains serious factual mistakes and omissions. (DE 16 at 11–23.) Because
I agree that the ALJ erred at Step Three and failed to accord appropriate weight to

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Federal Rule of Civil Procedure 25(d) provides for the automatic substitution of
Nancy Berryhill for her predecessor, Carolyn Colvin.
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I will cite to the administrative record (“A.R.”), which appears at docket entry 10,
by reference to the Social Security Administration’s Bates stamp number.

several medical opinions, the ALJ’s decision is reversed, and the case is remanded for
further proceedings.
Background
At the time of her hearing before the ALJ on May 13, 2014, Ammerman was
thirty-five years old and lived in a mobile home on her parents’ property with her 16year-old son. (A.R. at 46, 49.) She had a tenth grade education and was not working. (Id.
at 49, 52.) She had very minimal prior work experience and had last held a job more
than a decade before, when she had a paper route. (Id. at 53.) Notwithstanding her
health problems, Ammerman was able to care for herself without help (but with some
pain) and do household chores (again with some pain and on her own pace). (Id. at 46,
58.) With the help of her son and her mother, she also was able to look after a dog, four
rabbits, and several horses, and she could occasionally drive, garden, ride horses, and
mow the grass with a riding lawn mower. (Id. at 46, 58–60.)
Ammerman applied for supplemental security income on May 31, 2012, alleging
an onset date of August 8, 2009, when she was involved in a car accident so serious that
it resulted in her brother’s death. (Id. at 19, 43, 426.) After her claim was denied initially
and upon reconsideration, she requested a hearing before an ALJ. (Id. at 19.) The ALJ
held a hearing and subsequently issued an opinion that went through the ordinary fivestep analysis and concluded that Ammerman was not disabled. (Id. at 19–38.) Most
relevant to this appeal, the ALJ found at Step Two and Step Three that Ammerman
suffered from two severe impairments, degenerative joint disease of the right shoulder
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and disorders of the spine, but that she does not have a combination of impairments
that meets or medically equals the severity of one of the listed impairments in 20 C.F.R.
§ 404, Subpart. P, Appendix 1. (Id. at 26.) In addition, the ALJ found at Step Four that
Ammerman had the residential functional capacity to perform “sedentary work” as that
term is defined in 20 C.F.R. § 416.967(a), but with the following limitations:
she can lift, carry, push, or pull 10 pounds occasionally and five pounds
frequently; stand and walk a total of two hours during an eight-hour
workday; sit for a total of six hours during an eight-hour workday;
occasionally stoop, balance, crouch, crawl, kneel, and climb ramps and stairs;
never climb ladders, ropes, or scaffolds; and should avoid work hazards such
as unprotected heights or unguarded, dangerous moving machinery.
(Id.)
The Appeals Council denied review, making the ALJ’s decision the final decision
of the Commissioner. (Id. at 1–4.) Ammerman timely sought review of that decision by
filing this case.
Discussion
An ALJ’s decision should be affirmed so long as the ALJ applied the correct legal
standard and substantial evidence supports the decision. Barnett v. Barnhart, 381 F.3d
664, 668 (7th Cir. 2004). Substantial evidence means “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Nelms v. Astrue,
553 F.3d 1093, 1097 (7th Cir. 2009) (internal quotation marks and citation omitted).
Ammerman first argues that the ALJ erred at Step Three because he failed to
articulate why Ammerman’s back problems do not meet or equal Listing 1.04 and

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because his conclusion was not supported by substantial evidence. (DE 16 at 11–15.) A
claimant whose impairment meets or equals one found in the Listing of Impairments is
presumptively eligible for benefits. See 20 C.F.R. § 404.1520(d). “In considering whether
a claimant’s condition meets or equals a listed impairment, an ALJ must discuss the
listing by name and offer more than a perfunctory analysis of the listing.” Minnick v.
Colvin, 775 F.3d 929, 935 (7th Cir. 2015) (internal quotation marks and citation omitted).
I agree with Ammerman. To meet or equal the criteria of Listing 1.04, a spine
disorder must result in the compromise of a nerve root or the spinal cord and must be
accompanied by the following characteristics:
A. Evidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of motion of the
spine, motor loss (atrophy with associated muscle weakness or
muscle weakness) accompanied by sensory or reflex loss and,
if there is involvement of the lower back, positive straight-leg
raising test (sitting and supine);
or
B. Spinal arachnoiditis, confirmed by an operative note or
pathology report of tissue biopsy, or by appropriate medically
acceptable imaging, manifested by severe burning or painful
dysesthesia, resulting in the need for changes in position or
posture more than once every 2 hours;
or
C. Lumbar spinal stenosis resulting in pseudoclaudication,
established by findings on appropriate medically acceptable
imaging, manifested by chronic nonradicular pain and
weakness, and resulting in inability to ambulate effectively, as
defined in 1.00B2b.

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See 20 C.F.R. § 404(P), App. 1, ¶ 1.04. The ALJ found that Ammerman’s back problems
did not meet or equal Listing 1.04 because:
the evidence of record does not demonstrate current
compromise of a nerve root (including the cauda eqina) or the
spinal cord with additional findings of: (a) evidence of nerve
root compression characterized by neuro-anatomic distribution
of pain, limitation of motion of the spine, motor loss (atrophy
with associated muscle weakness) accompanied by sensory or
reflex loss and, positive straight-leg raising, or (b) spinal
arachnoiditis, or (c) lumbar spinal stenosis resulting in
pseudoclaudication, and also resulting in the inability to
ambulate effectively.
(A.R. at 26 (footnote omitted).)
This language is nothing more than a summary of the Listing and a terse
conclusion that Ammerman’s back condition didn’t meet or equal the Listing. Compare
id., and 20 C.F.R. § 404(P), App. 1, ¶ 1.04. That conclusion is in contrast to evidence
Ammerman presented that her spinal disorder involved a compromised spinal cord or
nerve roots and featured several of the other requirements of Listing 1.04(A), including
neuro-anatomical distribution of pain, limited motion of the spine, reflex loss, and
numerous positive straight-leg raising tests. (See, e.g., A.R. at 311 (noting “flattening of
both L5 nerve roots” and “the right S1 nerve root”); id. at 366 (noting limited spine
extension and rotation, positive straight leg tests on both sides and severe on the right);
id. at 423 (noting reduced range of motion in all areas of the spine, as well as upper and
lower extremities); id. at 395 (noting limitation of motion in both shoulders “due to low
back pain”); id. at 397 (noting lower back pain with flexion of right hip, positive straight

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leg raising test on right, reduced strength on right); id. at 296 (noting “right leg pain in
the L5 and S1 distribution, numbness and decreased sensation in the S1 distribution
right leg” and positive straight leg rising test and decreased reflexes on the right).)
Further, the ALJ’s two-sentence conclusion is “the very type of perfunctory
analysis . . . repeatedly found inadequate to dismiss an impairment as not meeting or
equaling a Listing.” Minnick, 775 F.3d at 935–96 (citations omitted) (collecting cases
remanding or reversing due to a cursory Listing analysis and/or articulation). In her
brief, the Commissioner cites evidence suggesting that Ammerman did not suffer from
muscle weakness, one of the requirements of Listing 1.04(A). (See DE 21 at 3–4.) But,
while that might be true, “general principles of administrative law preclude the
Commissioner’s lawyers from advancing grounds in support of the agency’s decision
that were not given by the ALJ.” Golembiewski v. Barnhart, 322 F.3d 912, 917 (7th Cir.
2003). It is up to the ALJ to sort out the conflicting evidence and provide more than a
perfunctory explanation of his decision.
Nor does Pope v. Shalala, 998 F.2d 473, 480 (7th Cir. 1993), the case relied upon by
the Commissioner, mandate a different result. In Pope, the Seventh Circuit affirmed an
ALJ’s opinion even though the ALJ’s articulation that the claimant’s impairment did not
meet or equal a Listing was minimal. 998 F.2d at 481 (overruled on other grounds). But
the ALJ’s decision there was supported by a reviewing physician’s finding that the
claimant’s impairments were not equivalent to the Listing, a finding that the Seventh
Circuit found the ALJ entitled to rely upon. Id. Here, the agency physician who
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examined Ammerman (Dr. Brewer) made no such determination upon which the ALJ
could have relied. (See A.R. at 418–26.) Further, although two agency doctors reviewed
Ammerman’s records and mentioned Listing 1.04 as one they’d considered, neither had
a complete set of medical records at the time of review, and the additional records
“show[ed] that the claimant is more limited in her abilit[ies.]” (See id. at 67–90.) Indeed,
the ALJ acknowledged this handicap when he accorded the reviewing physicians’
opinions just “some” weight. (See id. at 31.)
Under these circumstances, I cannot say that substantial evidence supported the
ALJ’s determination or that the Step Three analysis was sufficient. Accordingly, the
matter must be remanded. The ALJ, of course, may conclude a second time that
Ammerman’s back problems did not meet or equal Listing 1.04, but, if so, then it must
be after further analysis and development of the record.
Nor is this the only reason the case must be remanded. Ammerman argues that
the ALJ also erred by incorrectly weighing or failing to weight the opinions of a number
of medical providers. (DE 16 at 20–25.) I agree with respect to Dr. Kevin Rahn
(Ammerman’s orthopedic surgeon) and Dr. Rebecca Posner (a pain specialist who
treated Ammerman). Dr. Kevin Rahn is an orthopedic surgeon who saw Ammerman
several times in 2011 and one or more times several years before that. (See, e.g., id. at
293–97, 369–70, 372, 443–46.) Dr. Rebecca Posner is an anesthesiologist and pain
specialist who treated Ammerman for her pain in 2011. (Id. at 365–67.) “Under the
Treating Physician Rule, a treating physician’s opinion regarding the nature and
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severity of a medical condition is entitled to controlling weight if it is well supported by
medical findings and not inconsistent with other substantial evidence in the record.”
Brown v. Colvin, 845 F.3d 247, 252 (7th Cir. 2016) (internal quotation marks and citation
omitted); SSR 96-2P, 1996 WL 374188, at *1 (July 2, 1996). It makes sense to accord more
weight to a treating physician’s opinion “because they are most familiar with the
claimant’s conditions and circumstances.” Israel v. Colvin, 840 F.3d 432, 437 (7th Cir.
2016) (internal citation omitted).
The ALJ’s opinion mentions Dr. Rahn’s examination of Ammerman and his
opinion that Ammerman should be permanently restricted to lifting no more than 10
pounds, but the ALJ never ascribed a weight to that opinion. (A.R. at 21-22.) This was
an error, as ALJs are required to “always give good reasons . . . for the weight given to a
treating source’s medical opinion” and to provide “specific reasons for the weight
given. . . . , supported by the evidence in the case record, and [with sufficient specificity]
to make clear to any subsequent reviewers the weight the adjudicator gave . . . and the
reasons for that weight.” SSR 96-2P, 1996 WL 374188, at *5. Nevertheless, I agree with
the Commissioner that, with respect to Rahn, this was a harmless error that does not
itself require remand. See McKinzey v. Astrue, 641 F.3d 884, 892 (7th Cir. 2011). That’s
because the evidence in the record allows one to “predict with great confidence what
the result on remand will be.” Id. Here, the ALJ not only already considered Rahn’s
opinion, but also settled on a residual functional capacity for Ammerman that was
entirely consistent with Rahn’s findings. (Compare A.R. at 26 (finding that Ammerman
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could only lift or carry 10 pounds occasionally and five pounds frequently), and DE A.R.
at 450 (Dr. Rahn’s note restricting Ammerman to lifting no more than 10 pounds on a
permanent basis).) As a result, even if the ALJ gave Rahn’s opinion great weight on
remand, that wouldn’t dictate a different conclusion about Ammerman’s capabilities.
The story is a bit different with Dr. Posner. The ALJ’s opinion describes Posner’s
examination and findings that Ammerman had a limited range of motion in her spine
with lumbar pain and a positive straight leg raising test and that Ammerman had
lumbar degenerative disc disease, a herniated/ruptured disc, radiculitis, and
spondylosis—findings that might counsel in favor of concluding that Ammerman’s
disability met or equaled Listing 1.04. (See id. at 22.) As with Dr. Rahn’s opinion,
however, the ALJ failed to ascribe a weight to Dr. Posner’s opinion and, if he didn’t give
it controlling weight, failed to explain why. See id. In the case of Posner’s opinion, it’s
not possible to “predict with great confidence” what the ALJ might do on remand. See
McKinzey, 641 F.3d at 892. As a result, the ALJ must be given another opportunity to
determine whether Posner’s opinion is entitled to controlling weight and, if not, explain
why. See SSR 96-2P, 1996 WL 374188. This is the second reason this matter must be
remanded.
For these reasons, a remand is necessary to permit the agency to further assess
the evidence and develop the record regarding whether Ammerman’s lower back
problems, alone or in combination with other impairments, meet or equal a Listed
Impairment and what weight should be accorded to Dr. Posner’s medical opinion.
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Because these grounds mandate remand, I will not address Ammerman’s remaining
arguments, but the ALJ should consider and address them as appropriate.
Conclusion
Accordingly, the decision of the ALJ is REVERSED, and this matter is
REMANDED for further consideration consistent with this opinion. The Clerk of Court
is DIRECTED to enter judgment in favor of the plaintiff and against the defendant.
SO ORDERED.
ENTERED: March 27, 2017.

s/ Philip P. Simon
JUDGE, UNITED STATES DISTRICT COURT

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