Fry v. Commissioner of Social Security
Filing
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OPINION AND ORDER: The Court finds that the claim of now and relevant evidence before the Appeal's Council is not supported by the record, and a remand to Appeals Council is DENIED. The Court now REMANDS this case to the Acting Commissioner for further proceedings consistent with this opinion. The Clerk is ORDERED to enter judgment in favor of the Plaintiff. Signed by Magistrate Judge Michael G Gotsch, Sr on 9/28/18. (ksp)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
KAREN FRY,
Plaintiff,
v.
NANCY BERRYHILL
Acting Commissioner of Social Security,
Defendant.
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Case No. 3:17-cv-00671-MGG
OPINION AND ORDER
Plaintiff Karen E. Fry (Parks) 1 seeks judicial review of the Social Security Acting
Commissioner’s decision denying her application for Title II disability insurance
benefits (“DIB”), and Title XVI supplemental security income (“SSI”) as allowed under
42 U.S.C. § 405(g). This Court may enter a ruling in this matter based on parties’ consent
pursuant to 28 U.S.C. § 636(b)(1)(B) and 42 U.S.C. § 405(g). For the reasons below, the
Court reverses the decision of the Acting Commissioner of the Social Security
Administration and remands this case for further proceedings consistent with this
opinion.
I.
OVERVIEW OF THE CASE
Fry alleges an onset of disability on January 31, 2011, which was caused by
severe anxiety, diabetes, psychotic episodes, depression, panic attacks, paranoia, high
Ms. Fry divorced after applying for disability benefits and changed her name to Karen Parks. [DE 8 at
234]. The Court will refer to her in this order by her name at the time of her application.
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cholesterol, and breast cancer that was in remission. Other health conditions noted in
the record included obesity, mild neuropathy of hands and feet, hypothyroid, and acute
rhabdomyolysis. On the date of the alleged onset of her disability, Fry was forty-five
years old, which meets the regulatory definition of a younger individual; however, at
the time of her hearing, she turned fifty, which places her in the “person approaching
advanced age” category for purposes of social security benefits. [DE 11 at 223]. She
completed an Associate’s degree and has worked as a license agent clerk and cashier.
[Id.] Fry has not engaged in substantial gainful activity since January 31, 2011, the
alleged onset date. [Id. at 212].
Fry’s application for DIB and SSI of August 22, 2013, were denied initially and
upon reconsideration. Following a video hearing on May 3, 2016, the Administrative
Law Judge (“ALJ”) issued a decision affirming the Social Security Administration’s
denial of benefits. The ALJ found that Fry was unable to perform any past relevant
work. [Id. at 223]. However, the ALJ found that Fry has the residual functional capacity
(“RFC”) to perform medium work as defined by the regulations 2 [Id. 214]. Based upon
the testimony of the vocational expert, Fry’s age, her education, her work experience,
and her RFC, the ALJ found Fry is capable of making a successful adjustment to other
work that exists in significant numbers in the national economy. [Id. at 225]. Based upon
these findings, the ALJ denied Fry’s claims for benefits.
Other facts will be included as necessary.
Regulations governing applications for DIB and SSI are found in 20 C.F.R. Part 404 and Part 416,
respectively. For the sake of clarity and efficiency, this order will refer only to 20 C.F.R. § 404.
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II.
DISABILITY STANDARD
The Acting Commissioner follows a five-step inquiry in evaluating claims for
disability benefits under the Social Security Act:
(1) whether the claimant is currently employed; (2) whether the claimant
has a severe impairment; (3) whether the claimant’s impairment is one
that the Commissioner considers conclusively disabling; (4) if the claimant
does not have a conclusively disabling impairment, whether he can
perform his past relevant work; and (5) whether the claimant is capable of
performing any work in the national economy.
Kastner v. Astrue, 697 F.3d 642, 646 (7th Cir. 2012) (citing 20 C.F.R. § 404.1520). The
claimant bears the burden of proof at every step except Step Five. Clifford v. Apfel, 227
F.3d 863, 868 (7th Cir. 2000).
III.
STANDARD OF REVIEW
This Court has authority to review the Acting Commissioner’s decision under 42
U.S.C. § 405(g). However, this Court’s role in the judicial review of Social Security
Administration cases is limited, and it is not permitted to reweigh the facts or evidence.
Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008). The Court must give deference to the
ALJ’s decision so long as it is supported by substantial evidence. Thomas v. Colvin, 745
F.3d 802, 806 (7th Cir. 2014) (citing Similia v. Astrue, 573 F.3d 503, 513 (7th Cir. 2009). The
ALJ’s decision must reflect that he built a “logical bridge from the evidence to his
conclusion.” Minnick v. Colvin, 775 F.3d 929, 935 (7th Cir. 2015). The deference for the
ALJ’s decision is lessened where the ALJ’s findings contain error of fact or logic, or fail
to apply the correct legal standard. Schomas v. Colvin, 732 F.3d 702, 709 (7th Cir. 2013).
Additionally, an ALJ’s decision cannot be affirmed if it lacks evidentiary support or an
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inadequate discussion of the issues. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003).
Moreover, the ALJ’s decision will lack sufficient evidentiary support and require
remand if it is clear that the ALJ “cherry-picked” the record to support a finding of nondisability. Wilson v. Colvin, 48 F. Supp. 3d 1140, 1147 (N.D. Ill. 2014). At a minimum, an
ALJ must articulate her analysis of the record to allow the reviewing court to trace a
path of her reasoning and to be assured the ALJ has considered the important evidence
in the record. Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002). While the ALJ need not
specifically address every piece of evidence in the record to present the requisite
“logical bridge” from the evidence to her conclusions, O’Connor-Spinner v. Astrue, 627
F.3d 614, 618 (7th Cir. 2010), the ALJ must at least provide a glimpse into the reasoning
behind her analysis and the decision to deny benefits. Zurawski v. Halter, 245 F.3d 881,
889 (7th Cir. 2001).
A court reviews the entire administrative record, but does not reconsider facts,
re-weigh the evidence, resolve conflicts of evidence, decide questions of credibility, or
substitute its judgement for that of the ALJ. Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir.
2005). Thus, the question upon judicial review is not whether the claimant is, in fact,
disabled, but whether the ALJ used “the correct legal standards and the decision [was]
supported by substantial evidence.” Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2007).
Thus, substantial evidence is simply “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389,
401 (1971); Summers v. Berryhill, 864 F.3d 523, 526 (7th Cir. 2017).
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IV.
ANALYSIS
At Fry’s request, the ALJ conducted a hearing at which Fry testified regarding
her psychiatric and physical health issues, and a vocational expert testified about the
availability of jobs in the national economy, given Fry’s impairments.
Following the hearing, the ALJ issued a written decision based upon the five-step
disability evaluation process prescribed by the Social Security Administration’s
regulations 3, finding that Fry was not disabled and denying her disability benefits. At
Step One of the ALJ’s analysis, she determined that Fry had not engaged in substantial
gainful activity since the alleged disability onset. At Step Two, the ALJ found that
depression and anxiety disorders were Fry’s severe impairments. At Step Three of the
evaluation, the ALJ concluded that Fry’s impairments did not meet or medically equal
any of the listed impairments.
Before proceeding to Step Four, the ALJ analyzed Fry’s RFC and concluded that
Fry had the ability to perform medium work, and could lift and carry fifty (50) pounds
occasionally and twenty-five (25) pounds frequently. In addition, the ALJ held that
secondary to mental impairments, Fry could understand, remember, and carry out
detailed but uninvolved work instructions, commensurate with unskilled work.
Further, the ALJ found that Fry could sustain attention for two-hour segments of time
in an eight hour day. Next, the ALJ held that Fry could tolerate brief and superficial
contact with others, and only occasional, brief, and superficial contact with the public.
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20 C.F.R. § 404.1520
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Finally, the ALJ found that Fry could adapt to changes as needed in an unskilled work
setting.
At Step Four of the process, the ALJ, relying in part on the testimony of a
vocational expert, found that Fry was unable to perform any past relevant work. At
Step Five, the ALJ, in consideration of Fry’s age, education, work experience, and RFC,
determined that Fry was not disabled, because there were jobs that existed in significant
numbers within the national economy that Fry could perform.
After receiving an unfavorable determination by the ALJ, on May 27, 2016, Fry
filed a request with the Appeals Council to review the decision and submitted
additional evidence for review. On June 28, 2017, the Appeals Council denied her
request for review of the ALJ’s decision. The Appeals Council’s decision indicated that
the new information upon which Fry had based her request for review was about a later
time, a time after the ALJ’s decision was issued on May 27, 2016; therefore, the new
information does not affect the ALJ’s disability determination for the period beginning
on or before May 27, 2016. [DE 11 at 6]. With the Council’s denial of Fry’s request, the
ALJ’s May 27 determination became the final decision of the Acting Commissioner.
A.
Issues for Review
This case represents a tale of inconsistency. Fry challenges the ALJ’s decision and
seeks reversal and remand on three primary issues. First, she argues that substantial
evidence does not support the ALJ’s residual functional capacity (“RFC”) finding. [DE
20 at 7]. Second, Fry contends that the ALJ’s evaluation of her subjective complaints is
deficient. [Id. at 14]. Third, Fry alleges that she submitted new and material evidence to
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the Appeals Council that she thinks creates a reasonable possibility that the Acting
Commissioner would have reached a different conclusion had the evidence been
considered. [Id. at 17-19].
Having reviewed the ALJ’s decision, the Court agrees with Fry that the ALJ’s
RFC finding is not supported by substantial evidence. However, the Court disagrees
with Fry regarding the finding of the Appeals Council.
B.
RFC Analysis
1.
ALJ’s RFC Findings
If a person is found to be disabled at Step Three, the ALJ will make a finding as
to the claimant’s RFC before moving on to Step Four. See 20 C.F.R. § 404.1520(a)(4)(iii)(iv). The RFC is an administrative assessment of the claimant’s impairments, and any
related symptoms, that affect what the claimant can do in a work setting. Specifically,
the RFC is the most that the claimant can still do despite his or her limitations, based
upon all the relevant evidence and the claimant’s medical record. 20 C.F.R. § 404.1545.
All impairments are taken into consideration, at this point in the process, not just those
that have been previously determined to be severe. 20 C.F.R. § 404.1545(a)(2). In making
a proper RFC determination, the ALJ must consider all of the relevant evidence in the
case record. 20 C.F.R. § 404.1512(c). However, the claimant retains the burden to
provide the ALJ with medical evidence showing how her impairments affect her
functioning. 20 C.F.R. § 404.1545.
In this case, the ALJ found:
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[a]fter careful consideration of the entire record . . .
[Fry] has the residual functional capacity to perform
medium work as defined in 20 C.F.R. § 404.1567(c) and
416.967(c). [Fry] could lift/carry 50 pounds
occasionally and 25 pounds frequently. Secondary to
mental impairments, [Fry] could understand,
remember, and carry out detailed but uninvolved
work instructions, commensurate with unskilled
work. [Fry] could sustain attention for two hour
segments of time in an eight hour day. [Fry] could
tolerate brief and superficial contact with others, and
only occasional, brief and superficial contact with the
public. She could adapt to changes as needed in an
unskilled work setting.
[DE 11 at 214-15]. Fry argues the ALJ interpreted the Medical Source Statement (“MSS”)
provided by Dr. Coulter, a consultative examiner, based upon the least, rather than the
most, Fry could perform in contradiction to Dr. Coulter’s opinion, which indicated
neither that the limitations were Fry’s minimum nor maximum RFC. [DE 20 at 8]. Fry
claims that in so interpreting the consultative examiner’s report on Fry, and finding a
medium or light RFC without the required guidance or support in the record, the ALJ
improperly filled in the evidentiary gap on her own.
2.
RFC to Perform Medium Work
At Step Four of her evaluation, the ALJ determined, pursuant to 20 C.F.R.
§ 404.1520(f), that Fry “is unable to perform any past relevant work.” [DE 11 at 223]. The
ALJ indicated in her decision that Fry’s past relevant work included license agency
clerk and cashier, both classified as light, semi-skilled. [Id.]. Despite this finding, the ALJ
indicated that Fry’s RFC was medium, rather than light, work. The Court cannot trace
the ALJ’s logical path from a determination that Fry has the RFC to perform medium
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work to a determination that she cannot perform past relevant work classified as
unskilled, light work in Step Four. This is a critical flaw in the ALJ’s logical bridge
between the evidence and her conclusion.
Although the ALJ comprehensively detailed Fry’s physical impairments and
hospitalizations [DE 11 at 219], the ALJ failed to articulate why Fry would be able to lift
and carry fifty (50) pounds occasionally and twenty-five (25) pounds frequently in her
RFC. There is no evidence cited by the ALJ to support this level of capability for Fry, in
light of the determination made in Step Four with regard to past relevant work. The
ALJ determined that Fry had severe impairments, but concluded that these were not
work-precluding limitations. [Id. at 221].
To support her analysis, the ALJ gave some weight to a June 2011 physical
examination report that included a medical source statement “based on the least (versus
the most) the claimant could perform as the claimant had no limitations on
examination.” [Id.]. The ALJ also gave great weight to State agency medical consultants
who found no severe impairment. Based largely upon this evidence, the ALJ concluded
that Fry should avoid heavy work, and, consequently, that a range of medium work is
indicated for Fry. [DE 11 at 221]. According to 20 C.F.R. § 404.1567(c), “[m]edium work
involves lifting no more than 50 pounds at a time with frequent lifting or carrying of
objects weighing up to 25 pounds.” There is nothing in the Medical Source Statement
(“MSS”) provided by Dr. Coulter, or the other medical evidence cited by the ALJ, that
would suggest that Fry was physically able to lift or carry twenty-five (25), much less
fifty (50), pounds frequently. Although the consultative examiners referenced by the
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ALJ conclude no severe impairments, only Dr. Coulter’s gives any indication of Fry’s
capability to lift and carry, and the values that he provided were significantly less than
fifty (50) pounds. Dr. Coulter found that Fry was positive for numbness and tingling in
her feet from neuropathy. [Id. at 840]. In his MSS, Dr. Coulter indicated that Fry was
“able to maintain balance during ambulation while carrying object less than 10lbs. Able
to lift/carry less than 10lbs. or over 10lbs. occasionally. Able to stand/walk 2 hours in
an 8 hour day.” [Id. at 841]. In fact, the MSS upon which the ALJ relied is more
consistent with a finding of Light Work, which:
Involves lifting no more than 20 pounds at a time with frequent lifting or
carrying of objects up to 10 pounds. Even though the weight lifted may be
very little, a job in this category when it requires a good deal of walking or
standing, or when it involves sitting most of the time with some pushing
and pulling of arm or leg controls. To be considered capable of performing
a full or wide range of light work, you must have the ability to do
substantially all of these activities.
20 C.F.R. § 404.1567(b).
The apparent inconsistencies in the ALJ’s conclusion that medium work is
indicated for Fry are further aggravated by the ALJ’s ultimate conclusion at Step Four
that Fry “is unable to perform any past relevant work,” all of which was at the light,
semi-skilled levels. [DE 11 at 223]. The Court finds it difficult to follow the logical path
used by the ALJ in arriving at a medium work determination for Fry, based upon the
evidence cited by the ALJ in her decision, and the seemingly inconsistent determination
made by the ALJ at Step Four.
Fry alleged in her Opening Brief that the ALJ “misinterpreted the medical source
statement” of Dr. Coulter. [DE 20 at 8]. The Court certainly finds that the ALJ’s opinion
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was riddled with inconsistencies with regard to her conclusions 4, based upon the
medical evidence, which makes it difficult for the Court to follow the ALJ’s logical path
in reaching the conclusion that Fry is capable of performing medium work.
3.
Subjective Complaints Analysis
Fry next contends the ALJ engaged in flawed reasoning in her dismissal of Fry’s
subjective complaints, and erred in finding Fry capable of sustained work activities at
the medium level. [Id. at 14-16]. This is another area within the ALJ’s decision that is
undermined by inconsistency. The ALJ provided a comprehensive listing of Fry’s
impairments as part of the two-step analysis of all of Fry’s symptoms. 20 C.F.R.
§ 404.1529. First, the ALJ determined whether there were underlying medical
determinable physical or mental impairments. Then the ALJ, after determining whether
the impairments could reasonably be expected to produce Fry’s pain and symptoms,
evaluated the intensity, persistence, and limiting effects of the symptoms to determine
the extent that they limit her functioning. Upon review of the medical record and
evidence, the ALJ concluded that “the claimant’s medically determinable impairments
The Court also recognizes other potential problems within the ALJ’s RFC statement. Specifically, the
ALJ seemed to ignore the statement in Dr. Coulter’s MSS that Fry was “[a]ble to stand/walk 2 hours in an
8 hour day.” [DE 11 at 841]. According to 20 C.F.R. § 404.1567(b), “to be considered capable of performing
. . . light work, you must have the ability to do substantially all of these activities,” which include lifting
no more than 20 pounds, frequent lifting or carrying up to 10 pounds, a good deal of walking or standing,
or a job that requires sitting most of the time. Dr. Coulter’s MSS would suggest that Fry would struggle
with even light work due to her ability to stand for only two of eight hours. This MSS is consistent with
the determination made by the ALJ at Step Four, a serious inconsistency in the logical bridge.
Additionally, when the ALJ stated, “Secondary to mental impairments, the claimant could understand,
remember, and carry out detailed but uninvolved work instructions, commensurate with unskilled
work.” [DE 11 at 214-15]. The Court is not clear what is meant by this phrasing used by the ALJ, and it
does not help clarify for the Court the logical bridge developed by the ALJ. It seems that mental
impairments were found, and the ALJ concluded that Fry was suited for unskilled work in her RFC
determination, but it is unclear what was meant in the RFC statement.
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could reasonably be expected to cause some of the alleged symptoms, but finds her
statements concerning the intensity, persistence, and limiting effects of these symptoms
to be consistent with the limitations established in her residual functional capacity.” [DE
11 at 219] (emphasis added). The limitations consistent with the medium work RFC
would suggest that Fry is not able to perform the tasks delineated in 20 C.F.R.
§ 404.1567(c). This is a confusing finding of the ALJ, which may be the result of a simple
erroneous use of the word “consistent” rather than “inconsistent” in the ALJ’s
subjective complaints analysis. However, this confusion calls into question the ALJ’s
decision, in terms of the logical bridge, and is sufficient to justify remand by this Court.
C.
New and Material Evidence Before the Appeals Council
Finally, Fry argues that new material evidence was submitted to the Appeals
Council, which creates a reasonable probability that the Commissioner would have
reached a different conclusion had the evidence been considered. [DE 20 at 19].
Specifically, Fry claims that within days of the ALJ’s decision, she underwent a
decompensation that led to her hospitalization for psychotic symptoms. [Id. at 18].
The Appeals Council uses a two-part test to determine if new evidence should be
considered. See 42 U.S.C. § 405(g); Perkins v. Charter, 107 F.3d 1290, 1294 (7th Cir. 1997)
(citing 20 C.F.R. § 404.970(b)). The threshold requirement for review is that the
submitted evidence be new, material, and relevant to the adjudicated period. 20 C.F.R.
§ 404.970(b). If the evidence meets this threshold standard, then the Appeals Council
looks to the entire augmented record to determine if the ALJ’s decision is contrary to
the weight of the evidence. See Perkins, 107 F.3d at 1290. Evidence is not new when it
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was “not in existence or available to the claimant at the time of the administrative
proceeding.” Sample v. Shalala, 999 F.2d 1138, 1144 (7th Cir. 1993).
Fry argues that the decompensation and hospitalization she experienced in June
2016, after the release of the ALJ’s decision on May 27, 2016, were an exacerbation of her
existing, chronic psychological symptoms. [DE 26 at 6]. The ALJ issued her decision in
the Fry matter on May 27, 2016. The Appeals Council examined Fry’s treatment records
from the period June 1, 2016 through August 15, 2016, but found that this evidence Fry
submitted related to a period after the date of the ALJ’s decision; therefore, the Appeals
Council found the evidence was not time-relevant in reference to the ALJ’s decision.
[DE 11 at 6]. The Appeals Council recommended that Fry apply for benefits again to
determine whether she was disabled after the ALJ’s decision on May 27, 2016. [Id.].
Although, as Fry argues, the decompensation that occurred after the release of the ALJ’s
decision may have been an exacerbation of Fry’s existing impairments, the Appeals
Council was correct that this event transpired at a time that does not relate to the period
on or before the ALJ’s decision; therefore, it would not be appropriate for this Court to
remand on the issue of new and material evidence.
V.
CONCLUSION
For the reasons stated above, this Court concludes that the ALJ’s decision was
not supported with substantial evidence, and was subject to critical inconsistencies
between the evidence and the ALJ’s conclusion. However, the Court finds that the
claim of now and relevant evidence before the Appeal’s Council is not supported by the
record, and a remand to Appeals Council is DENIED.
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The Court now REMANDS this case to the Acting Commissioner for further
proceedings consistent with this opinion. The Clerk is ORDERED to enter judgement in
favor of the Plaintiff.
SO ORDERED
Dated this 28th day of September 2018.
s/Michael G. Gotsch, Sr.
Michael G. Gotsch, Sr.
United States Magistrate Judge
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