Mosley v. Commissioner of Social Security

Filing 28

OPINION AND ORDER: AFFIRMING the final decision of the Commissioner of Social Security denying plaintiff Jeffrey S. Mosley's application for a period of disability and disability insurance benefits. The Clerk shall enter judgment in favor of Defendant and against Plaintiff. Signed by Judge Philip P Simon on 7/17/2017. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
JEFFREY MOSLEY,

)
)
Plaintiff,
)
)
vs.
) CAUSE NO. 3:15-CV-615-PPS-MGG
)
1
NANCY BERRYHILL, Acting Commissioner )
of the Social Security Administration,
)
)
Defendant.
)
OPINION AND ORDER
Plaintiff Jeffrey Mosley appeals the Social Security Administration’s decision to
deny his application for Social Security disability benefits. An administrative law judge
found that Mosley was not disabled within the meaning of the Social Security Act.
Mosley raises a number of challenges to this determination, but I conclude that the
ALJ’s decision was supported by substantial evidence. I will, therefore, affirm the
decision of the ALJ.
Background
Jeffrey S. Mosley applied for disability benefits alleging disability as of February
1, 2012. [A.R. at 201.]2 Mosley previously filed applications for disability alleging

Pursuant to Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill is
substituted for her predecessor, Carolyn W. Colvin, as defendant in this suit.
1

The administrative record is found in the court record at docket entry 12, and
consists of 660 pages. I will cite to its pages according to the Social Security
Administration’s Bates stamp numbers rather than the Court’s Electronic Case Filing
page number.
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disability beginning October 1, 2010. [A.R. at 110.] On March 1, 2012, an ALJ found
that Mosley was not disabled and Mosley did not appeal that decision or request
reopening. [Id. at 41-43, 111-116.] As such, the issue of Mosley’s disability prior to
March 1, 2012 is barred by res judicata. 20 C.F.R. § 404.957(c)(1).
An administrative hearing was held in January 2014 in front of Administrative
Law Judge Julia D. Gibbs. [Id. at 38.] The ALJ issued a decision on July 18, 2014 in
which she found that Mosley was not disabled at any time through the date of her
decision. [Id. at 18.] The Appeals Council denied Mosley’s request for review of the
ALJ’s decision. [Id. at 1.]
Mosley was 41 years old at the time of his administrative hearing. [A.R. at 41.]
Mosley last worked in March of 2008 as an assembly line inspector at a factory. [Id. at
43-44.] Before that, he worked as a maintenance worker for a car company. [Id. at 75.]
Mosley suffers from a variety of physical and mental health issues, including shoulder
pain and anxiety. [Id. at 58, 64.]
In recent years, Mosley received medical treatment from a variety of sources.
From 2011 to 2012, Mosley sought treatment from Dr. Donald Roegner at the Family
Psychiatric Center, but Mosley only met sporadically with Dr. Roegner, who stated that
he could not make significant progress with a “flagrant bipolar” if he saw him so
infrequently. [Id. at 311.] On February 14, 2012, Dr. William Hedrick examined Mosley,
diagnosing him with occipital neuralgia and several problems with his shoulders and

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elbows. [Id. at 339.] On January 21, 2013, Dr. Russell Coulter-Kern conducted a
consultative examination of Mosley for the Social Security Administration; he diagnosed
Mosley with Bipolar 1 disorder and assigned him a GAF score of 40-45. [Id. at 399-400.]
In February 2013, Dr. William Terpstra examined Mosley, diagnosing him with
Polyarticular Arthralgias—a form of joint pain, Bipolar Disorder, ADHD, and anxiety.
[Id. at 402.] Dr. Terpstra also opined that Mosley “would be able to stand/walk for most
if not all of an 8 hour day and could use the upper extremities for lifting/carrying less
than 10 [pounds] frequently and over 10 [pounds] occasionally and maintain good
balance while doing so during that time frame.” [Id.] On May 5, 2013, Dr. William
Shipley examined Mosley and opined that Dr. Russel-Kern’s assigned GAF score of 4045 is not supported. [Id. at 144]. Dr. Shipley also opined that Mosley has “mild”
restriction of activities of daily living, “moderate” difficulties in maintaining social
functioning, “moderate” difficulties in maintaining concentration, and no repeated
episodes of decompensation, each of extended duration. [Id. at 143.] On May 8, 2013,
Dr. A. Dobson opined that Mosley can frequently lift twenty five pounds and can
stand/walk for about six hours in an eight-hour workday. [Id. at 145.]
Throughout 2013, Mosley was treated by nurse practitioners Monica McMain and
Debra Graber, along with Dr. Rafik Farag. [Id. at 480-512.] On October 30, 2013, Nurse
Practitioner Graber examined Mosley and opined that he suffers from bipolar syndrome,
filling out a form indicating as follows: that Mosley suffers “moderate” restriction of

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activities of daily living, “marked” difficulties in maintaining social functioning,
“marked”deficiencies of concentration, and “extreme” episodes of decompensation in
work-like settings. [Id. at 542.] In late 2013, Mosley began receiving therapy from the
Four County Counseling Center, where he saw Mark Reef and Dr. Kathleen Miller. [Id.
at 565-587.] Mosley also has been seeing Dr. Brian Dierckman for troubles with his
shoulders and back, though Dr. Dierckman noted “no acute fracture or dislocation.” [Id.
at 626-629.]
At the hearing, Mosley testified that his mental and physical health issues keep
getting worse. Mosley testified that he had “more anxiety” than in previous years,“more
difficulty going out in public,” that he is “paranoid,” and that he hesitates to go
anywhere without his wife. [Id. at 58-59.] Mosley also testified that he consistently
experiences physical discomfort, and that he cannot sit in a single position without
shifting his body for more than twenty or thirty minutes. [Id. at 61-62.] He also testified
that he struggles to lift even a gallon of milk with his right arm. [Id. at 63-64]. While
Mosley recounted that he struggles to do household chores, he also said that he can cook
and mow the lawn, though it can take him a few days to finish the work. [Id. at 65, 70.]
The ALJ issued a decision denying benefits. At Step One, the ALJ found that
Mosley last met the insured status requirements of the Social Security Act on December
31, 2013. [Id. at 23.] Further, the ALJ found that Mosley did not engage in substantial
gainful activity during the period from his alleged onset date through the date last

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insured of December 31, 2013. [Id.] At Step Two, the ALJ concluded that Mosley has the
following severe impairments: cervicalgia, degenerative disc disease, arthropathy of the
right shoulder, obesity, bipolar disorder, depression, and personality disorder. [Id.] At
Step Three, the ALJ determined that Mosley’s impairments or combination of
impairments do not meet or medically equal the severity of one of the listed
impairments. [Id. at 24-26.]
At Step Four, the ALJ found that Mosley has the residual functional capacity to
perform sedentary work as defined in 20 C.F.R. 404.1567(a). Here is Mosley’s RFC as
determined by the ALJ:
[He can] perform unskilled work at a sedentary level of
exertion... that does not require overhead reaching with the
dominant right arm or more than superficial contact with
coworkers or supervisors.
[Id. at 26.] At Step Five, the ALJ concluded that considering the Mosley’s age, education,
work experience, and residual funcational capacity, there are jobs that exist in significant
numbers in the national economy that Mosley can perform, and that a finding of “not
disabled” is appropriate. [Id. at 32.]
Discussion
In evaluating Mosley’s arguments as to how the ALJ erred, I must keep in mind
that judicial review of the Commissioner’s decision is limited. If an ALJ’s findings of fact
are supported by “substantial evidence,” then they must be sustained. See 42 U.S.C. §
405(g); Overman v. Astrue, 546 F.3d 456, 462 (7th Cir. 2008). Substantial evidence consists

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of “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) (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971)). “The ALJ is not required to address every piece of
evidence or testimony presented, but must provide a ‘logical bridge’ between the
evidence and his conclusions.” Terry v. Astrue, 580 F.3d 471, 474 (7th Cir. 2009).
Additionally, the ALJ’s reasoning must be sufficiently articulated to permit meaningful
review. See Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002). “[W]hat matters are the
reasons articulated by the ALJ.” Jelinek v. Astrue, 662 F.3d 805, 812 (7th Cir. 2011)
(emphasis in the original).
First, Mosley argues that the ALJ erred by crediting the opinions of Dr. William
Terpstra, who provided a consultative examination for the Social Security
Administration. [DE 21 at 19-20.] As Mosley notes, Terpstra was under criminal
investigation for distributing controlled substances at the time he examined Mosley and
he had surrendered his medical license at the time of the hearing before the ALJ on
January 23, 2014. While these facts are troubling, their timing is important. Terpstra
examined Mosley on February 6, 2013. [A.R. at 401.] Terpstra was arrested in April of
2013, had his medical license suspended in October 2013, and he pled guilty in 2014.
William G. Terpstra, Indiana Online Licensing,
https://mylicense.in.gov/everification/Details.aspx?agency_id=1&license_id=1495785
(last viewed Jul. 7, 2017) (noting a license suspension date of October 31, 2013). In other

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words, Terpstra still had a valid medical license at the time he examined Mosley. Social
Security regulations state:
We will not use in our program any individual or entity, except
to provide existing medical evidence . . . whose license to
provide health care services is currently revoked or suspended
by any State licensing authority pursuant to adequate due
process procedures for reasons bearing on professional
competence, professional conduct, or financial integrity.
20 C.F.R. 404.1503a.
The ALJ did not violate this regulation by considering Dr. Terpstra’s opinion
because, at the time Terpstra examined Mosley, his license had not yet been revoked or
suspended. Courts in other circuits have reached similar conclusions. See Ortiz v.
Comm’r of Soc. Sec., No. 15-cv-7602, 2017 WL 519260, at *9 (S.D.N.Y. Feb. 8, 2017) (noting
that ALJ’s decision to credit or not credit a consulting examiner was not affected by fact
that doctor had his license suspended after the examination); Clark v. Colvin, No. 12-cv1116, 2013 WL 3834046, at *11 (D. Del. Jul. 24, 2013) (holding that remand is not
appropriate solely because ALJ relied on a consultative examiner whose license was
subsequently suspended). Indeed, Mosley’s argument in this case is similar to that made
in Clark v. Colvin, No. 12-cv-1116, 2013 WL 3834046 (D. Del. Jul. 24, 2013). As in that
case, Mosley demands a remand solely because an examining doctor subsequently had
his license suspended. Mosely essentially asks me to apply a per se rule. Mosley does
not assert that Terpstra’s findings are false, flawed, or lack foundation, and does not
question the validity of Terpstra’s findings from the consultative examination. Id. at *11.
The fact that Terpstra’s license was subsequently suspended “is insufficient to warrant
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remand and further review by the ALJ” because this fact does not “develop plaintiff’s
case factually.” Id. Because Mosley does not explain why Terpstra’s consultative
examination in this case is unreliable, remand is not warranted.
Second, Mosley argues that the ALJ improperly discounted the opinion of
consultative psychologist Dr. Russell Coulter-Kern, who provided a GAF score of 40-45
(reflecting “serious” symptoms) and opined that Mosley’s overall level of functioning
was “low.” [A.R. at 400]. I disagree. The ALJ adequately justified her decision to assign
little weight to Coulter-Kern. First, the ALJ cited the fact that Mosley reported a “broad
range of activities of daily living” to Coulter-Kern. [Id. at 30]. Second, the ALJ noted
that Dr. Kathleeen Miller provided a higher GAF in her December 2013 assessment. [Id.]
Third, the ALJ noted that Dr. William Shipley directly challenged Coulter-Kern’s
assigned GAF in his report. [Id. at 31]. Even if I might have weighed the evidence
differently than the ALJ, it is not my place to do so, as I must affirm the ALJ if her
conclusion is backed by substantial evidence. Overman, 546 F.3d, 462 (7th Cir. 2008).
Because the ALJ adequately justified her decision to discount the opinion of Dr. CoulterKern, she did not err.
Third, Mosley argues that the ALJ erred by refusing to weigh the opinion of
Nurse Practitioner Debra Graber. [DE 21 at 21-22.] Of all the medical professionals who
examined Mosley, Graber found Mosley’s impairments to be the most severe. She
opined that Mosley suffers “moderate” restriction of activities of daily living, “marked”
difficulties in maintaining social functioning, “marked”deficiencies of concentration, and

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“extreme” episodes of deterioration or decompensation in work-like settings. [Id. at
542.] However, the ALJ gave two good reasons for refusing to weigh Nurse Practitioner
Graber’s opinion. First, at the time the ALJ drafted her opinion, under 20 CFR
404.1513(a), a nurse practitioner was not an acceptable medical source.3 As it existed at
the time of the ALJ’s opinion, 20 CFR 404.1513(d) explained that the Social Security
Administration, “in addition to the evidence from the acceptable medical sources . . .
may also use evidence from other sources,” including nurse practitioners. But just
because the ALJ “may” consider evidence from a nurse practitioner, did not mean that
she was required to. Second, the ALJ noted that Nurse Practitioner Graber’s assessment
“consists largely of checked-off responses without detailed medical evidence.” [A.R. at
30.] In short, the ALJ gave two reasons for her decision to disregard Nurse Practitioner
Graber’s opinion that satisfy her burden under the “substantial evidence” requirement.

I fully recognize that the regulations have since been amended so that, effective
March 27, 2017, Licensed Advanced Practice Registered Nurses are acceptable medical
sources. See 20 C.F.R. § 404.1502(a)(7). However, the changes do not apply to review of
Mosley’s claim, because they were promulgated after Mosley filed his claim for
disability. See 82 FR 5844-01 (“These final rules are effective on March 27, 2017.”);
Kirkling v. Berryhill, No. 2:16-cv-00412-JMS-MJD, 2017 WL 2793969, at *3 n.3 (S.D. Ind.
June 28, 2017) (noting that the new rules for agency review of disability claims do not
apply retroactively); Smith v. Berryhill, No. 1:16-cv-02231-JMS-MSJ, 2017 WL 2418322, at
*5 n.4 (S.D. Ind. June 5, 2017) (same); Gasko v. Berryhill, No. 16 CV 8102, 2017 WL
1833191, at *4 n.5 (N.D. Ill. May 8, 2017) (same); see generally Bowen v. Georgetown Univ.
Hosp., 488 U.S. 204, 208 (“Retroactivity is not favored in the law. Thus, congressional
enactments and administrative rules will not be construed to have retroactive effect
unless their language requires this result.”). Because the amendments apply only to
claims filed on or after March 27, 2017, all references to the regulations in this Opinion
and Order refer to the prior version.
3

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Fourth, Mosley argues that the ALJ erred by failing to assign weight to the
opinions of a few of the doctors that examined Mosley. [DE 21 at 22-25.] Mosley cites a
list of medical opinions relating to his back and shoulder maladies. Mosley ignores,
however, the fact that the ALJ did in fact discuss or cite to several of the medical
opinions that Mosley claims she ignored. [See A.R. at 28-29 (ALJ’s discussion of Dr.
Donald Roegner); id. at 27-28 (ALJ’s discussion of and citation to an MRI performed by
Dr. Brian Dierckman); id. at 29 (ALJ discussing a report provided by Mark Reef).]
In addition, Mosley faults the ALJ for failing to assign weight to the opinions of
Dr. Rafik Farag, Dr. Brian Badman, Dr. Praveen Perni, Dr. Peter Klim, and Dr. Firas
Kara.4 At its core, Mosley’s argument is that remand is required because the ALJ did not
explicitly weigh the opinion of every doctor in the medical record. [A.R. at 18-19]. The
ALJ, however, need not address every piece of evidence or testimony presented. Terry,
580 F.3d at 474. Rather, her findings need only be supported by substantial evidence.
Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007).
The ALJ adequately accounted for Mosley’s back and right shoulder impairments.
Regarding Mosley’s back and shoulder pain, the ALJ acknowledged Mosley’s conditions
and accounted for them in her RFC by providing for work at a “sedentary level of
exertion that does not require overhead reaching with the right arm.” [A.R. at 27.] In
making this finding, the ALJ analyzed a variety of evidence in the record, recognizing

While Mosley argues the ALJ wrongly failed to weigh the opinion of Dr. Kara,
Mosley did not cite to the particular evidence associated with Dr. Kara in the record that
he thinks was relevant.
4

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that some of the evidence pointed in different directions. For example, Dr. Terpstra
noted that Mosley’s grip strength was 4/5 and his general muscle strength was also 4/5
and also noted that Mosley had normal gait and station. [Id. at 28]. Further, the ALJ
noted Mosley’s statement at his hearing that he can mow the lawn for about forty
minutes. [Id.] In summary, the ALJ considered the impairments to Mosley’s back and
right shoulder. She weighed evidence pointing both directions and her ultimate
conclusion was supported by substantial evidence.
Furthermore, Mosley fails to explain why the evidence allegedly ignored by the
ALJ is significant and could potentially alter the outcome of the case. How does that
evidence support the finding that Mosley is disabled? As far as I can tell, the evidence
Mosley cites merely supports what the ALJ already concluded, that Mosley has
impairments in his shoulders and back, and that he should be limited to sedentary work.
A claimant cannot obtain remand merely by pointing to a few pieces of evidence in a
record of hundreds of pages that the ALJ didn’t explicitly discuss. Such a legal rule
would make an ALJ’s job a futile exercise and incentivize claimants to flood the record
with as many pages of barely relevant medical evidence as possible. But that is not the
rule. I must determine if the ALJ’s conclusions are supported by “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson, 402 U.S. at 401. Here, they are.
Fifth, Mosley argues that the ALJ failed to “acknowledge any limitation” of
Mosley’s left shoulder. [DE 21 at 27-28.] But the ALJ did discuss Mosley’s left shoulder,

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concluding that the evidence “does not show that the claimant has a severe left shoulder
impairment.” [A.R. at 27]. To support her conclusion, the ALJ cited a December 2013
MRI conducted by Dr. Dierckman that showed only “mild to moderate degeneration” in
Mosley’s left shoulder. [Id. at 27, 548.] The ALJ, therefore, analyzed the evidence
regarding Mosley’s left shoulder and found that her RFC, which limits Mosley to
sedentary work, appropriately accommodated any limitations. While Mosley might
disagree with the ALJ’s determination, he cannot argue that she did not consider
evidence regarding his left shoulder.
Finally, Mosley challenges the ALJ’s RFC analysis, but the challenge is without
merit. [DE 21 at 25-27.] Mosley argues the ALJ made a “serious factual mistake” by
stating that Mosley is capable of “superficial contact with coworkers or supervisors.”
Mosley then cites to various pieces of evidence in the record suggesting he has poor
social skills and accuses the ALJ of cherry-picking. While there is evidence supporting
Mosley’s argument, there also is substantial evidence pointing in the other direction,
which the ALJ relied on in reaching her conclusion. For example, the ALJ noted the
opinion of Dr. Terpstra, who did not detect any mental impairment in Mosley, A.R. at 30;
the ALJ noted the fact that Dr. Miller provided a higher GAF score than Dr. Coulter-Kern
did, id.; the ALJ noted Dr. Stacia Hill’s opinion that Mosley could superficially relate
with coworkers and supervisors, attend to tasks long enough to complete them, and
manage the stresses involved with, id. at 30, 135; and the ALJ noted Dr. Shipley’s opinion
that Mosley is capable of performing unskilled work, id. at 31. When there is substantial

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evidence pointing in both directions, an ALJ does not cherry-pick when she embraces
one of two possible positions. The ALJ’s only obligation is to consider all relevant
evidence and create a “logical bridge” to facilitate judicial review of her decision. Terry,
580 F.3d at 75. Here, she did just that and I find that her decision is supported by
substantial evidence.
Conclusion
In sum, the ALJ’s conclusion that Mosley was not disabled during the relevant
time period is supported by the evidence highlighted in her opinion. And even if
reasonable minds could differ concerning whether Mosley was disabled, I must defer to
the ALJ’s decision so long as it is adequately supported, as it is in this case. Elder v.
Astrue, 529 F.3d 408, 413 (7th Cir. 2008).
ACCORDINGLY:
The final decision of the Commissioner of Social Security denying plaintiff Jeffrey
S. Mosley’s application for a period of disability and disability insurance benefits is
AFFIRMED.
The Clerk shall enter judgment in favor of Defendant and against Plaintiff.
SO ORDERED.
ENTERED: July 17, 2017.
s/ Philip P. Simon
PHILIP P. SIMON, JUDGE
UNITED STATES DISTRICT COURT

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