Davis v. Commissioner of Social Security
Filing
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OPINION AND ORDER: The decision of the Administrative Law Judge is REVERSED and this case is REMANDED for further proceedings consistent with this Opinion and Order. Signed by Judge Philip P Simon on 8/22/17. (cer)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
SHAWNA K. DILLINGER
o/b/o TIMOTHY RAYMOND DAVIS,
Plaintiff,
vs.
NANCY A. BERRYHILL,1
Acting Commissioner of the Social Security
Administration,
Defendant.
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) CAUSE NO. 3:16-CV-544-PPS-MGG
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OPINION AND ORDER
Plaintiff Shawna K. Dillinger, on behalf of her deceased brother, Timothy
Raymond Davis, appeals the Social Security Administration’s decision to deny Davis’s
application for disability insurance benefits. An administrative law judge found that
Davis was not disabled within the meaning of the Social Security Act. Dillinger raises a
number of challenges to this determination, including that the ALJ’s determination that
Mr. Davis did not have an impairment that meets or medically equals the severity of a
listed impairment is not supported by substantial evidence. Because I find that the ALJ
failed to adequately support his Step Three determination, I will reverse and remand on
the issue.
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.
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Background
Davis was 44 years old at the time of his hearing. [DE 13 at 54.] He was a high
school graduate. [A.R. at 55.]2 At the hearing, Davis testified along with a vocational
expert. Davis testified that his last day of work was July 31, 2011. [Id. at 48-49.] He
worked at the same company for eighteen years, where he was a machine operator and,
in his last year, forklift driver. [Id. at 49-50.] As part of his responsibilities as a machine
operator, he had to pick up product, which was a foil laminated lid, that, on average,
weighed around 10 pounds, but the heaviest one could be up to 40 pounds and he was
on his feet all day. [Id.] As a forklift operator, he sometimes had to lift a 70 pound
rubber block up to his head. [Id. at 51.] Davis had carpal tunnel surgery on both hands
in 2010, after which they seemed to get worse. [Id.] He testified that he stopped
working because his carpal tunnel syndrome ultimately kept him from doing the job.
[Id.] He said that he has great difficulty driving if it is for over 20 miles and can reach,
but “can’t pick anything up really.” [Id. at 55-56.] He later testified that he could pick
change off of a table or button buttons if it was a “small amount,” but otherwise his
hands would cramp up and close and he would be unable to use them. [Id. at 62.]
Of particular importance for present purposes, Davis testified that he suffers
from seizures when he sleeps and also had a few concussions from slips and falls and
The administrative record is found in the court record at docket entry 11, and
consists of 715 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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car accidents. [Id. at 57.] Davis had four seizures while he was awake but had seizures
roughly every other night that would wake up him and make him dizzy and sometimes
sick to his stomach. [Id.]
When asked to describe what a typical day was like for him, Davis testified that
he feeds his two dogs, tries to do some laundry if he needs to, puts dishes in the
dishwasher, and will go out and get the mail. [Id. at 63.] When asked if he does any
cooking, he said that most everything he eats comes out of the microwave. [Id.]
The ALJ issued a decision denying benefits. [Id. at 25-44.] At Step One, the ALJ
found that Davis met the insured status requirements of the Social Security Act and that
he has not engaged in substantial gainful activity since July 23, 2011, the alleged onset
date. [Id. at 31.] At Step Two, the ALJ concluded that Davis suffered from bilateral
carpal tunnel syndrome and epilepsy. [Id.] At Step Three, the ALJ determined that
these various impairments did not meet or medically equal the severity of one of the
listed impairments. [Id. at 32.] Next, the ALJ found that Davis has the residual
functional capacity to perform light work as defined in 20 C.F.R. 404.1567(b). [Id.]
Given the RFC assigned by the ALJ, and based on the testimony of a vocational expert,
the ALJ concluded that Davis was not capable of performing past relevant work but
that there are jobs that exist in significant numbers in the national economy that Davis
could perform.
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Discussion
My review of the Commissioner’s decision is limited and I must be deferential to
the ALJ’s findings. An ALJ’s findings of fact must be upheld if supported by substantial
evidence. See 42 U.S.C. § 405(g); Overman v. Astrue, 546 F.3d 456, 462 (7th Cir. 2008).
Substantial evidence consists of “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Skinner v. Astrue, 478 F.3d 836, 841 (7th
Cir. 2007) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). The ALJ does not
have to review every piece of evidence, but must provide a “logical bridge” between the
evidence and conclusions. Terry v. Astrue, 580 F.3d 471, 474 (7th Cir. 2009). When an
ALJ denies disability benefits but fails to adequately support his conclusions, the
decision must be remanded. Jelinek v. Astrue, 662 F.3d 805, 811 (7th Cir. 2011).
Specifically, the ALJ’s reasoning must be sufficiently articulated to permit meaningful
review. See Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002). I must only consider the
evidence pointed out by the ALJ in his written decision. See Jelinek, 662 F.3d at 811
(“[W]hat matters are the reasons articulated by the ALJ.”).
Dillinger makes two arguments as to how the ALJ erred, but I will focus on her
claim that the ALJ’s finding that Davis did not have an impairment that meets or
medically equals the severity of a listed impairment is not supported by substantial
evidence. [DE 16 at 16.] In his opinion, the ALJ found that Davis’s epilepsy does not
meet the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
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Appendix 1, and noted, albeit in a conclusory way, that he specifically considered the
requirements of Listings 11.02 and 11.03. [A.R. at 32.] These Listings were revised after
the ALJ’s opinion was issued and this action was filed. For purposes of this Opinion,
when I refer to Listings 11.02 and 11.03, I am referring to them as they existed before
they were revised. Listing 11.02 provides:
Epilepsy—convulsive epilepsy (grand mal or psychomotor),
documented by detailed description of a typical seizure
pattern, including all associated phenomena; occurring more
frequently than once a month in spite of at least 3 months of
prescribed treatment.
A. Daytime episodes (loss of consciousness and
convulsive seizures) or
B. Nocturnal episodes manifesting residuals which
interfere significantly with activity during the day.
Listing 11.03 provides:
Epilepsy—nonconvulsive epilepsy (petit mal, psychomotor, or
focal), documented by detailed description of a typical seizure
pattern, including all associated phenomena; occurring more
frequently than once weekly in spite of at least 3 months of
prescribed treatment. With alteration in awareness or loss of
consciousness and transient postical manifestations of
unconventional behavior or significant interferences with
activity during the day.
See Neurological Listings from 12/15/04 to 9/28/16, Program Operations Manual System
(POMS), available at https://secure.ssa.gov/poms.nsf/lnx/0434131013 (list visited Aug.
8, 2017).
In his Step Three analysis, the ALJ found that “the record does not contain
clinical findings or test results that meet the level of severity required by any of the
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neurological listings. In addition, no treating or examining physician has mentioned
findings that would equal the criteria of any of the listed impairments.” [A.R. at 32.]
The problem with the ALJ’s finding is that there is substantial evidence in the record
that potentially supports a finding that Davis’s epilepsy met the severity of one of the
Listings, but the ALJ either did not discuss it or noted it, but did not sufficiently explain
why he discounted. In fact, beyond what I’ve quoted above, the ALJ never explicitly
discussed how and why Davis failed to meet the criteria of those Listings, failing to
create a logical bridge between the evidence and his determination.
For example, in his opinion, the ALJ notes that “[n]umerous EEGs were
abnormal” and “that a recent EEG showed epileptiform discharges.” [A.R. at 34.] In
her opening brief, Dillinger expands on this point and cites to and quotes almost two
pages worth of clinical findings and test results that Dillinger asserts verify Davis was
having epileptic seizures on a regular basis, even more often than Davis realized. [DE
16 at 12-14.] And that is saying something since Davis testified he was having a seizure
roughly every other night. I am not a doctor and, therefore, cannot and must not try to
interpret the meaning of these test results and whether they actually indicate the type of
seizure pattern and severity contemplated by Listings 11.02 and 11.03. Rather, that is a
job for the ALJ. The ALJ, however, failed to explain why, despite this evidence, he
concluded that Davis’s epilepsy did not equal the severity of Listing 11.02 and 11.03. It
very well could be that those test results are not significant, but it is the ALJ’s duty to
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connect the evidence and his own conclusions, not mine. See Clifford v. Apfel, 227 F.3d
863, 872 (7th Cir. 2000).
Furthermore, both Listing 11.02 and 11.03 require a claimant to experience
seizures “in spite of at least 3 months of prescribed treatment.” The ALJ noted in his
opinion that Davis testified that he was taking only two medications, one for his blood
pressure and one for his stomach. When asked at his hearing before the ALJ, “Are you
taking a number of medications right now, Tim?,” Davis responded, “A blood pressure
pill and a pill for my stomach.” [A.R. at 60-61.] Davis never was asked directly
whether he was or ever had taken medication for his epilepsy. But the record indicated
that he had. Davis’s mother indicated that Davis was taking Gabapentin three times per
day to control his seizures. [Id. at 33.] In addition, Davis’s Medication Sheet from the
Knox Winamac Community Health Center also notes that Davis was on seizure
medication, which the ALJ does not address in his opinion. To be clear, the ALJ does
not have to discuss in depth every piece of evidence, but he “must provide an ‘accurate
and logical bridge’ between the evidence and the conclusion . . . so that ‘as a reviewing
court, we may assess the validity of the agency’s ultimate findings and afford [the]
claimant meaningful judicial review.’” Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008)
(quoting Young v. Barnhart, 362 F.3d 995, 1002 (7th Cir. 2004)). This reasoning must be
provided by the ALJ. Jelinek, 662 F.3d at 812; see also Sarchet v. Chater, 78 F.3d 305, 307
(7th Cir. 1996) (“[W]hile there is enough evidence in the record to support the decision,
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the reasons given by the trier of fact do not build an accurate and logical bridge
between the evidence and the result.”). It is unclear how, if it all, the ALJ weighed the
evidence regarding Davis’s use of medication in concluding that his epilepsy did not
meet or medically equal the severity of one of the Listings.
In addition, during his brief Step Three analysis, the ALJ summarily explains in
support of his conclusion that no treating or examining physician has mentioned
findings that would equal the criteria for any of the listed impairments and does not
acknowledge until later in his opinion, during his RFC analysis, that the Social Security
Administration’s consultative examining physician opined that “given the history of
seizures which did not appear to be under control at this time he would not be a
candidate for gainful employment.” [A.R. at 326, 35 (citing A.R. 326).] The ALJ gave
this portion of Dr. Pithadia’s opinion “no special significance,” explaining that whether
the claimant can work is an issue reserved to the Commissioner. [Id. at 35.] While the
ALJ is correct that Dr. Pithadia’s ultimate conclusion that Davis was not a candidate for
gainful employment is not one that is binding on the ALJ, that does not mean that the
ALJ cannot and should not consider the underlying facts supporting Dr. Pithadia’s
conclusion; specifically that Davis’s seizures were not under control and could be (or
were) severely disruptive to Davis’s daily activities. To me it seems unfair to simply
ignore those facts and assert in such a conclusory manner that no treating or examining
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physician has mentioned findings that would equal the criteria for any of the listed
impairments.
As a final matter, I will note that during his RFC analysis, the ALJ discussed
evidence that lends support to his conclusion, including Davis’s testimony that he
drove to the hearing, could drive for twenty miles at one time, could use a computer for
thirty minutes, could reach, feeds his dogs, does laundry and dishes, prepares simple
meals, and could pick up change and buttons. [Id. at 32.] I am not remanding this case
because I do not think there was any evidence to support the ALJ’s determination.
Rather, the ALJ’s brief explanation of his determination does not permit meaningful
review and would impermissibly require me to scour not only his opinion, but also the
entire administrative record, to attempt to understand how he arrived at his conclusion.
As such, I must remand this action on the issue of the ALJ’s determination at Step
Three. Because this ground already requires remand, I will not address Dillinger’s
remaining arguments, but the ALJ should consider and address them as appropriate.
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Conclusion
For the reasons stated above, the ALJ’s decision denying benefits is REVERSED
and this cause is REMANDED for further proceedings consistent with this Opinion and
Order.
SO ORDERED.
ENTERED: August 22, 2017.
s/ Philip P. Simon
PHILIP P. SIMON, JUDGE
UNITED STATES DISTRICT COURT
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