Frye v. Commissioner of Social Security

Filing 32

OPINION AND ORDER: The Commissioner's decision is REVERSED and the case is REMANDED for further proceedings. Signed by Judge Robert L Miller, Jr on 10/16/2017. (jss)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
ANGELA M. FRYE,
Plaintiff
vs.
NANCY A. BERRYHILL,1
Acting Commissioner of
Social Security,
Defendant

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CAUSE NO. 3:16-CV-658 RLM

OPINION AND ORDER
Angela Frye seeks judicial review of the final decision of the Commissioner
of Social Security denying her applications for Disability Insurance Benefits and
Supplemental Security Income under the Social Security Act, 42 U.S.C. §§ 423
and 1381 et seq. The court has jurisdiction over this action pursuant to 42 U.S.C.
§§ 405(g) and 1383(c)(3). The court reverses the Commissioner’s decision and
remands the case for further proceedings.

I. BACKGROUND
Angela Frye filed her original applications in 2012, alleging disability as of
Nov 1, 2009. When those applications were denied, she reapplied alleging
disability as of January 2012 due to multiple mental and physical impairments.
Ms. Frye was 51 when she refiled, had a high school education, and was insured

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Nancy A. Berryhill, the Acting Commissioner of Social Security, has been substituted
as the named defendant, pursuant to Fed. R. Civ. P. 25(d)(1).

for Disability Insurance Benefits through June 30, 2014. Her renewed
applications were denied initially, on reconsideration, and after an administrative
hearing in March 2016, during which Ms. Frye amended the alleged onset date to
November 15, 2015, expressly waived her claim to Disability Insurance Benefits
(because the alleged onset of disability occurred after her date last insured), and
pursued only her Supplemental Security Income claim.
At the hearing, the ALJ heard testimony from Ms. Frye and a vocational
expert, Sharon Ringenberg. Based on the evidence presented, he found that:
•

Ms. Frye had severe impairments: bipolar disorder, panic disorder
with agoraphobia, anxiety disorder, fibromyalgia, diabetes mellitus II,
lumbar disc herniation at the L5-S1 level, degenerative disc changes
at L4-5 without focal herniation or headaches; and hypertension (20
CFR §§ 404.1520(c) and 416.920(c)).

•

Her impairments, alone and in combination, didn’t meet or equal the
severity of any of the impairments listed in 20 C.F.R. Pt. 404, Subpt.
P., Appendix 1, specifically Listings 12.04 (Affective Discorders) and
12.06 (Anxiety Related Disorders)).

•

Ms. Frye had the residual functional capacity to perform light work
with limitations.2

•

Ms. Frye couldn’t perform her past work as a retail worker (DOT
201.462-014) and school bus driver (DOT 913.463-010), but could

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The ALJ found that Ms. Frye could: (1) understand, remember and carry out simple,
routine tasks and make simple work-related decisions; (2) frequently respond appropriately to
supervisors, coworkers and the general public; (3) maintain frequent changes in the work
setting; (4) occasionally lift, carry, push and pull 20 pounds, and frequently lift, carry, push
and pull 10 pounds; (5) sit, stand, and walk for 6 hours, if she was able to alternate between
sitting and standing for five minutes every 30 minutes and to sit for five minutes after every 30
minutes of walking; (6) frequently reach overhead with her right upper extremity; (7)
occasionally climb ramps and stairs, but not ladders, ropes and scaffolds; (8) occasionally
stoop, kneel, crouch, and crawl, but not balance; (9) frequently operate motor vehicles; and (10)
frequently endure humidity, wetness, dust, odors, fumes, pulmonary irritants, exposure to
extreme cold and heat.

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perform other work that existed in significant numbers in the
national economy, including work as a routing clerk (DOT 222.587038 - 150 jobs statewide/22,000 nationally),3 ticket taker (DOT
344.667-010 - 150 jobs statewide/10,000 nationally), and mail sorter
(DOT 209.687-026 - 1000 jobs statewide/50,000 nationally).
The ALJ concluded that Ms. Frye wasn’t disabled within the meaning of the
Social Security Act, and wasn’t entitled to Disability Insurance Benefits or
Supplemental Security Income. When the Appeals Council denied Ms. Frye’s
request for review, the ALJ's decision became the final decision of the
Commissioner of Social Security. Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir.
2010). This appeal followed.
Ms. Frye contends that the ALJ erred as a matter of law in denying her
application for Disability Insurance Benefits, and that his findings regarding her
residual functional capacity and ability to perform other work at steps 4 and 5 of
the sequential evaluation aren’t supported by substantial evidence. More
specifically, she alleges that:
(1) The ALJ failed to consider the results of a December 2015 MRI
showing nerve root compression in the lower lumbar spine (AR 656-658) or
Listing 1.04 (disorders of the spine) when he concluded that “the
radiographic evidence” didn’t support her subjective complaints regarding
the severity and limiting effects of her physical impairments, and found that

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The ALJ incorrectly identifies the job as “retail” clerk in his decision.

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she retained the functional capacity to perform a limited range of light
work.
(2) The ALJ relied on, and gave too much weight to, findings and
medical opinions that predated the alleged onset of disability (November 1,
2015) and the December 2015 MRI – specifically an October 2015 RFC
assessment by Dr. D. Whitley, a state agency consulting physician (AR 210213).
(3) The ALJ found that Ms. Frye had moderate limitations in
concentration, persistence, and pace, but didn’t adequately identify what
those limitations were in his hypothetical to the vocational expert. Citing
Varga v. Colvin, 794 F.3d 809, 814-15 (7th Cir. 2015) (holding that a
hypothetical question limiting a person to simple, repetitive work that was
“free of fast paced production requirements” didn’t provide the vocational
expert

with

sufficient

information

regarding

the

limitations

on

concentration, persistence or pace).

II. LEGAL STANDARD
The issue before the court isn’t whether Ms. Frye is disabled, but whether
substantial evidence supports the ALJ’s decision that she is not. Scott v. Astrue,
647 F.3d 734, 739 (7th Cir. 2011); Nelms v. Astrue, 553 F.3d 1093, 1097 (7th Cir.
2009). Substantial evidence means “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S.
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389, 401 (1971); Jones v. Astrue, 623 F.3d at 1160. In reviewing the ALJ’s
decision, the court can’t reweigh the evidence, make independent findings of fact,
decide credibility, or substitute its own judgment for that of the Commissioner,
Simila v. Astrue, 573 F.3d 503, 513 (7th Cir. 2009); Powers v. Apfel, 207 F.3d 431,
434-435 (7th Cir. 2000), but it “will conduct a critical review of the evidence,
considering both the evidence that supports, as well as the evidence that detracts
from, the Commissioner’s decision.” Briscoe v. Barnhart, 425 F.3d 345, 351 (7th
Cir. 2005).
The ALJ isn’t required “to address every piece of evidence or testimony
presented, but he must provide a ‘logical bridge’ between the evidence and the
conclusions so that [the court] can assess the validity of the agency’s ultimate
findings and afford the claimant meaningful judicial review.” Jones v. Astrue, 623
F.3d at 1160.

III. DISCUSSION
Ms. Frye didn’t expound on her argument regarding the denial of Disability
Insurance Benefits in her briefs or during oral arguments before this court. To
receive Disability Insurance Benefits, she had to establish disability on or before
June 30, 2014 (her date last insured). At the administrative hearing in March
2016, Ms. Frye effectively abandoned any claim of disability before November 1,
2015 (her amended onset date), expressly waived the right to proceed on her
Disability Insurance Benefits claim, and proceeded only on her claim for
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Supplemental Security Income. Under the circumstances, the court would be hard
pressed to find that the ALJ erred as a matter of law in denying her claim for
Disability Insurance Benefits.
Social Security Ruling 16-3p, which issued new guidelines on how a
disability claimant’s statements about the intensity, persistence, and limiting
effects of symptoms are to be evaluated, became effective on March 28, 2016, but
isn’t retroactive, so the old standard, SSR 96-7p., governs the ALJ’s credibility
determination in this case. Veldhuizen v. Berryhill, No. 4:15-CV-103 PRC, 2017
WL 1030834, at *10 (N.D. Ill. Mar 16, 2017).
In making a disability determination, the ALJ must consider:
the entire case record, including the objective medical evidence, the
individual’s own statements about symptoms, statements and other
information provided by treating or examining physicians or
psychologists and other persons about the symptoms and how they
affect the individual, and other relevant evidence in the case record
[e.g., the individuals daily activities; the location, duration, frequency,
and intensity of pain or other symptoms; precipitating and
aggravating factors; type, dosage, effectiveness, and side effects of any
medications; treatment for relief of pain or other symptoms; other
methods taken to relieve pain or other symptoms; and other factors
concerning functional limitations due to pain or other symptoms].
Arnold v. Barnhart, 473 F.3d 816, 823 (7th Cir. 2007) (quoting Social Security
Ruling 96-7p); 20 C.F.R. § 404.1929(c)(3).
The ALJ found that Ms. Frye’s impairments could reasonably be expected
to cause the symptoms she alleged, but that “[her] statements concerning the
intensity, persistence, and limiting effects of th[o]se symptoms [were] not entirely
consistent [with]”:
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(1) her “sporadic work history”;
(2) the lack of “intensive” treatments, assistive devices, in-home
supports, or in-patient treatments;
(3) improvement in her condition when she “maintained her
medication regime”;
(4) an

“x-ray” (the Dec 15, 2015 MRI) of the lumbar spine that

showed only “‘mild’ degenerative facet changes at the L5-S1 level, a broad
disc herniation at the L5-S1 level, and degenerative disc changes at L4-5
without focal herniation or central stenosis”; and
(5) assessments by agency consulting and/or examining physicians,
Drs. O. Villoreal and B. Whitely, Craig Nordstrom, Ph.D., and Joelle Larsne,
Ph.D..
The ALJ gave little or no weight to treating source assessments that
supported Ms. Frye’s claim, most notably a Mental RFC Questionnaire completed
by Ms. Frye’s treating physician at Oaklawn, Dr. LaRissa Chism-Buggs, on March
4, 2016 (AR 686-690). But Ms. Frye didn’t raise that issue on appeal, arguing
instead that the ALJ’s conclusion that the “radiographic evidence” – the MRI
showing nerve root compression – didn’t support her subjective complaints. The
evidence of nerve root compression is significant, see Listing 1.04 (disorders of the
spine), and might, or might not, have provided the medical corroboration the ALJ
needed to believe more, or all, of Ms. Frye’s testimony. While the ALJ discussed
some of the MRI report, he made no mention of the finding of nerve root
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compression – a material omission that can’t be clarified or corrected on appeal.
The law requires the discussion and decision to come from the ALJ, not counsel,
see Securities and Exchange Commission v. Chenery Corp., 332 U.S. 194 (1947);
Gutierrez v. Lynch, 834 F.3d 800, 806 (7th Cir. 2016); Hanson v. Colvin, 760 F.3d
759, 762 (7th Cir. 2014); Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir. 2010), and
the court can’t reweigh the evidence, make independent findings of fact, decide
credibility, or substitute its own judgment for that of the Commissioner. Simila v.
Astrue, 573 F.3d at 513; Powers v. Apfel, 207 F.3d at 434-435.
The only objection to the ALJ’s assessment of Dr. Whitley’s opinion was that
it predated the MRI, and needed to be updated. The court agrees, and anticipates
that the parties will develop the record further on remand. See Nicholson v.
Astrue, 341 Fed. App’x 248, 254 (7th Cir. 2009) (“The degree of the ALJ’s
responsibility to take the initiative [to solicit additional evidence] is influenced, if
not entirely dictated, by the presence or absence of counsel for the claimant.”);
Smith v. Apfel, 231 F.3d 433, 437(7th Cir. 2000) (ALJ has a duty to develop a full
and fair record, even when claimant is represented by counsel); Glenn v. Secretary
of Health & Human Servs., 814 F2d 387, 391 (7th Cir. 1987) (Where an applicant
is represented by an attorney, it may be assumed that the applicant is making his
“strongest case for benefits.”).
The burden at step 5 of the disability evaluation is on the Commissioner to
show that the claimant can perform other work that “exists in significant numbers
in the national economy.” 20 C.F.R. 404.1560(c)(2); see also Overman v. Astrue,
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546 F.3d at 464; Britton v. Astrue, 521 F.3d 799, 803 (7th Cir. 2008). The ALJ
ordinarily should include all limitations supported by the medical evidence in the
hypothetical to ensure that the vocational expert has all the relevant information
needed to provide a fully informed and reliable answer, Kasarsky v. Barnhart, 335
F.3d 539, 543-544 (7th Cir. 2003); Steele v. Barnhart, 290 F.3d 936, 942 (7th Cir.
2002), but must incorporate only those limitations that he accepts as credible.
Schmidt v. Astrue, 496 F.3d 833, 846 (7th Cir. 2007); Sims v. Barnhart, 309 F.3d
424, 432 (7th Cir. 2002) (no error when ALJ told vocational expert to consider only
those impairments that were supported by evidence in the record). The ALJ didn’t
do that in this case.
The ALJ found at step 2 that Ms. Frye had moderate limitations in social
functioning and concentration, persistence, and/or pace, and that her ability to
interact independently, appropriately, effectively, and on a sustained basis with
other people was limited, as was her ability to sustain focus, attention, and
concentration long enough to permit the timely and appropriate completion of
tasks commonly found in work settings, but he included none of those limitations
in his hypothetical to the vocational expert. He simply asked if there were jobs the
claimant could perform if she was: “limited to perform simple, routine tasks,”
“[could] have frequent contact with supervisors, coworkers, and the public”, and
was “limited to simple work related decisions.” That is insufficient. See Varga v.
Colvin, 794 F.3d 809, 814-15 (7th Cir. 2015).

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IV. CONCLUSION
The evidence presented to the ALJ doesn’t conclusively establish that Ms.
Frye is disabled or entitled to benefits, but she has presented objective medical
evidence – the MRI showing nerve root compression – that could have validated
her subjective complaints regarding the severity and limiting effects of her back
impairment. The ALJ didn’t discuss that evidence, erroneously concluded that the
MRI didn’t support Ms. Frye’s subjective complaints, and relied on a residual
functional capacity assessment that predated the MRI. The ALJ also erred when
he failed to include all of Ms. Frye’s mental limitations in his hypothetical to the
vocational expert, and relied on her testimony to find that Ms. Frye was capable
of performing other jobs.
Accordingly, the Commissioner’s decision is REVERSED and the case is
REMANDED for further proceedings.
SO ORDERED.
ENTERED:

October 16, 2017

/s/ Robert L. Miller, Jr.
Judge, United States District Court
Northern District of Indiana

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