Henry v. Commissioner of Social Security
Filing
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OPINION AND ORDER: The Court REVERSES the Commissioner's decision and REMANDS this matter to the Commissioner for further proceedings consistent with this opinion. The Clerk is DIRECTED to prepare a judgment for the Court's approval. Signed by Judge Jon E DeGuilio on 8/8/19. (nal)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
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MICHELLE RENAE HENRY,
Plaintiff,
v.
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant.
Case No. 3:18-CV-372 JD
OPINION AND ORDER
Plaintiff Michelle Renae Henry alleges that she has been disabled since September 15,
2013. She filed a complaint in this Court seeking review of the final decision of the Defendant,
the Commissioner of Social Security, denying her application for social security disability
benefits [DE 1].1 The matter is briefed and ripe for decision [DE 16; DE 22; DE 25]. For the
reasons stated below, the Court remands this matter to the Commissioner for further proceedings.
I. FACTS
Ms. Henry filed an application for disability insurance benefits in 2014, alleging that
degenerative disc disease and other back problems, numbness in her extremities, arthritis,
botched hernia surgeries, bowel obstructions, and implanted bladder and rectal slings prevented
her from working since September 15, 2013. Before ceasing work, Ms. Henry was employed for
twelve years as a full-time hotel clerk and for some time as a part-time housekeeper and cashier
for various gas stations and convenience stores.
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Ms. Henry was subsequently found to be disabled as of August 10, 2017, thus the parties agree
that the relief requested should be modified to consider whether she was disabled prior to that
date. Accordingly, the Court GRANTS the uncontested motion in this respect [DE 26].
Ms. Henry’s medical history is extensive. She underwent eight surgeries from 1994 to
2014 in order to repair hernias and resulting complications. She also underwent procedures to
resection her bowels in 2008 and install a bladder sling in 2009. Her back problems led her to
undergo a discectomy and fusion procedure in 2003. Despite physical therapy, chiropractor
visits, and ongoing medical treatment, her lower back pain continued to worsen in 2012 and
became marked by shooting pain in her right leg. Additionally, Ms. Henry has been diagnosed by
her primary care physician, Dr. John Kelly, with obesity, diabetes mellitus, lumbar disk
degeneration, and chronic obstructive pulmonary disease (“COPD”). She reports daily
headaches, fatigue, vertigo, the inability to lift more than ten pounds, and incontinence. In 2013,
her pain and other symptoms made it so difficult for her to sit, stand, or walk for extended
periods of time that she ceased working.
In October and November 2014, state agents opined that Ms. Henry suffered from
degenerative disc disease but that the impairment was non-severe. After these evaluations, Ms.
Henry began seeing a physical rehabilitation specialist, Dr. Sridhar Vallabhaneni, who diagnosed
her with lumbar spinal stenosis, lumbar radiculopathy, and low back pain. On examination, he
documented that she demonstrated an abnormal range of motion in her back and an antalgic gait.
He noted that her MRI revealed a pathology at L5/S1 which “correlate[d] with her symptoms.”
She then completed a course of physical therapy without much result. She was referred for a
surgical consultation in February 2017.
Administrative Law Judge Kevin Plunkett (“ALJ”) held a hearing on July 21, 2017,
during which Ms. Henry and vocational expert Stephanie Archer (“VE”) testified. Ms. Henry
explained that she suffers from constant pain in her right leg which makes it difficult for her to
stand and walk. She must stop and rest when moving from her living room to the bathroom. The
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chronic pain often rises along her spine to her head, causing debilitating headaches as often as
four times a day; she needs to lie down in a dark place to relieve the headaches. She also suffers
from vertigo on a weekly basis which lasts for about an hour at a time. In response, she began
using a cane in 2016 and was prescribed a seated walker and motorized scooter. Sitting longer
than fifteen minutes causes her discomfort and she must then stand. Lifting so much as a gallon
of milk causes her hands to shake and oftentimes, she drops things. Further complicating matters
are her respiratory attacks which require the daily use of a rescue inhaler, diabetes which remains
uncontrolled with medication, and stomach pain/bowel issues caused by multiple bowel
surgeries. Ms. Henry testified that her ailments prevent her from performing most household
chores, preparing meals, or dressing herself. She leaves the house only for medical visits, partly
due to her mobility issues and partly due to her anxiety about falling. She’s been seen in the
emergency room numerous times because of falling. Even at home, she has only accessed the
first floor of her house since 2016.
In response to hypothetical questions posed by the ALJ, the VE testified that a person of
Ms. Henry’s age and background but limited to light work (and a few other exertional
limitations) could perform work as a hotel clerk, either as Ms. Henry once performed the job or
as generally performed. Per the VE, that person could also perform work as a front desk
receptionist, cashier, and sales attendant. If further limited to sedentary work, then such a person
could work as a C.O.D. clerk, scheduling clerk, or lost charge card clerk. The VE testified that in
order to be employable, a person cannot be off-task more than five percent of the time or absent
more than one day per month. Additionally, the VE indicated that even the sedentary jobs
identified would require an employee to be physically capable of gripping with both hands (at
least occasionally) and moving around without a walker.
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The ALJ issued a decision on August 9, 2017, denying Ms. Henry disability benefits and
finding her not disabled under the Social Security Act because she had the residual functional
capacity2 to perform light work including her past work as a front desk clerk. The ALJ opined
that for purposes of the step 5 analysis, Ms. Henry could also perform light work as a front desk
receptionist, cashier, and sales attendant. On May 15, 2018, the Appeals Council denied her
request for review, making the ALJ’s decision the final determination of the Commissioner.
Schomas v. Colvin, 732 F.3d 702, 707 (7th Cir. 2013). Ms. Henry seeks review of the
Commissioner’s decision, thereby invoking this Court’s jurisdiction under 42 U.S.C. §§ 405(g)
and 1383(c)(3).
II. STANDARD OF REVIEW
This Court will affirm the Commissioner’s findings of fact and denial of disability
benefits if they are supported by substantial evidence. Craft v. Astrue, 539 F.3d 668, 673 (7th
Cir. 2008). Substantial evidence consists of “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971).
This evidence must be “more than a scintilla but may be less than a preponderance.” Skinner v.
Astrue, 478 F.3d 836, 841 (7th Cir. 2007). Thus, even if “reasonable minds could differ” about
the disability status of the claimant, the Court must affirm the Commissioner’s decision as long
as it is adequately supported. Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008).
In this substantial-evidence determination, the Court considers the entire administrative
record but does not reweigh evidence, resolve conflicts, decide questions of credibility, or
substitute the Court’s own judgment for that of the Commissioner. Lopez ex rel. Lopez v.
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Residual Functional Capacity (“RFC”) is defined as the most a person can do despite any
physical and mental limitations that may affect what can be done in a work setting. 20 C.F.R. §
404.1545.
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Barnhart, 336 F.3d 535, 539 (7th Cir. 2003). Nevertheless, the Court conducts a “critical review
of the evidence” before affirming the Commissioner’s decision. Id. An ALJ must evaluate both
the evidence favoring the claimant as well as the evidence favoring the claim’s rejection and may
not ignore an entire line of evidence that is contrary to the ALJ’s findings. Zurawski v. Halter,
245 F.3d 881, 888 (7th Cir. 2001). Consequently, an ALJ’s decision cannot stand if it lacks
evidentiary support or an adequate discussion of the issues. Lopez, 336 F.3d at 539. Ultimately,
while the ALJ is not required to address every piece of evidence or testimony presented, the ALJ
must provide a “logical bridge” between the evidence and the conclusions. Terry v. Astrue, 580
F.3d 471, 475 (7th Cir. 2009).
III. DISCUSSION
Disability benefits are available only to those individuals who can establish disability
under the terms of the Social Security Act. Estok v. Apfel, 152 F.3d 636, 638 (7th Cir. 1998).
Specifically, the claimant must be unable “to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 423(d)(1)(A). The Social Security regulations create a five-step evaluation
to determine whether the claimant has established a disability. 20 C.F.R. § 404.1520(a)(4)(i)-(v).
In order, these steps are:
1. Whether the claimant is currently engaged in substantial gainful activity;
2. Whether the claimant has a medically severe impairment;
3. Whether the claimant’s impairment meets or equals one listed in the
regulations;
4. Whether the claimant can still perform relevant past work; and
5. Whether the claimant can perform other work in the community.
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Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). At step three, if the ALJ determines
that the claimant’s impairment or combination of impairments meets or equals an impairment
listed in the regulations, the Commissioner finds a disability. 20 C.F.R. § 404.1520(a)(4)(iii).
However, if no listing is met or equaled, then between steps three and four, the ALJ must assess
the claimant’s RFC, which is used in turn to determine whether the claimant can perform her
past work under step four and whether the claimant can perform other work in society at step
five of the analysis. 20 C.F.R. § 404.1520(e). The claimant has the initial burden of proof in
steps one through four, while the burden shifts to the Commissioner in step five to show that
there are a significant number of jobs in the national economy that the claimant is capable of
performing. Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004).
Ms. Henry argues that the ALJ’s RFC assessment is not supported by substantial
evidence where the ALJ did not weigh any treating physicians’ opinions and omitted sufficient
analysis of her non-severe impairments. As explained below, the Court agrees that the RFC
determination lacks sufficient evidentiary support. This shortcoming requires remand for further
assessment but does not direct a finding of disability. Ms. Henry also contends that the ALJ erred
in refusing to consider medical evidence submitted within five days of the hearing per 20 C.F.R.
§ 404.935. However, the Court need not resolve that issue here because the previously excluded
evidence is now available for future consideration.
The ALJ must determine an individual’s RFC, meaning “what an individual can still do
despite his or her limitations,” SSR 96–8p, based upon medical evidence as well as other
evidence, such as testimony by the claimant. Murphy v. Colvin, 759 F.3d 811, 817 (7th Cir.
2014) (citation omitted). In making a proper RFC determination, the ALJ must consider all of the
relevant evidence in the record, even as to limitations that are not severe. Id.; see 20 C.F.R. §
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404.1529(a) (in making a disability determination, the ALJ must consider all of a claimant’s
symptoms, including pain, and how those symptoms affect a claimant’s daily life and ability to
work). The ALJ must then build “an accurate and logical bridge from the evidence to the
conclusion” so that a court can assess the validity of the agency’s decision and afford the
claimant meaningful review. Giles v. Astrue, 483 F.3d 483, 487 (7th Cir. 2007).
The ALJ in this case concluded that Ms. Henry had the RFC to perform a limited range of
light work, including the lifting/carrying of no more than twenty pounds occasionally, with
frequent lifting/carrying of objects weighing up to ten pounds. 20 C.F.R. § 404.1567(b); SSR 8310. The ALJ opined that Ms. Henry could also sit and stand/walk for six hours in a workday. In
making his RFC determination, the ALJ failed to rely on a single medical opinion that translated
a physical assessment of Ms. Henry into work-related functional limitations. The only expert
who provided a medical opinion regarding Ms. Henry’s ability to work were the state agents.3
Yet, the ALJ gave “little weight” to the October and November 2014 state agency assessments,
noting that they predated important treatment history/imaging evidence and failed to consider
Ms. Henry’s obesity and complaints of back pain. Moreover, the state agents did not proceed to
offer any opinion as to Ms. Henry’s functional limitations. Accordingly, the ALJ could only
conclude that Ms. Henry’s medical history supported the functional limitations included in his
RFC determination by impermissibly playing doctor. Goins v. Colvin, 764 F.3d 677, 680 (7th
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Although Dr. Kelly provided a medical source statement dated July 6, 2017 (R. at 74-87),
which indicated that Ms. Henry required an ambulatory device and was functionally disabled, the
ALJ declined to consider this evidence because he determined that it was tardily submitted
without sufficient good cause. While the ALJ’s discussion in this respect is somewhat suspect
given Ms. Henry’s repeated attempts to timely obtain the report consistent with 20 C.F.R. §
404.935 and 416.1435, this evidence from a treating physician is now available for
reconsideration.
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Cir. 2014) (finding that the ALJ played doctor by relying on the results of a medical test without
having it reviewed by a physician).
This is not to say that the ALJ wholly failed to recite medical evidence produced by Ms.
Henry’s treating medical providers. For example, the ALJ referred to various treatment notes
from Drs. Vallabhaneni and Kelly and discussed the findings made during those sessions.
However, the ALJ then impermissibly took it upon himself to interpret that medical data in
reaching his conclusion that the record does not support Ms. Henry’s alleged limitations relative
to sitting, standing, and walking, and in ultimately finding that Ms. Henry’s impairments would
affect her ability to perform anything more than light work. By way of example, even after
recognizing that Ms. Henry sustained at least four slip and falls and had a walker/motorized
scooter prescribed by Dr. Kelly, the ALJ relied on random treatment notes indicating normal
balance and gait to “find little support for use of a cane and other assistive devices.” Yet, the ALJ
was required to rely on medical experts rather than “determining the significance of particular
medical findings [himself].” Moon v. Colvin, 763 F.3d 718, 722 (7th Cir. 2014). Thus, the ALJ
committed reversible error by substituting his own knowledge for that of any trained physician or
medical staff in determining Ms. Henry’s RFC. See Myles v. Astrue, 582 F.3d 672, 677-78 (7th
Cir. 2009); Suide v. Astrue, 371 F. App’x 684, 689-90 (7th Cir. 2010) (holding that the ALJ’s
rejection of a treating physician’s opinion created an evidentiary deficit requiring remand, where
other evidence in the record did not address the claimant’s functional limitations); Fly v. Colvin,
No. 3:14-cv-1840, 2015 WL 5124957, at *4 (N.D. Ind. Aug. 31, 2015) (“An ALJ is not a doctor,
and his limitations must find a basis in the evidence.”). Ultimately, it was the ALJ’s
responsibility to recognize the need for a further medical evaluation for purposes of deriving Ms.
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Henry’s actual RFC, and remand is necessary here. See, e.g., Smith v. Apfel, 231 F.3d 433, 43738 (7th Cir. 2000).
For purposes of remand, the Court notes that limitations resulting from severe pain are
central to Ms. Henry’s claim of disability. During her hearing, Ms. Henry testified that she
stopped working in 2013 because she suffered from pain in her right leg that was so intense that
she “couldn’t work” and “couldn’t function.” Further, Ms. Henry described pain that went into
her right ankle/foot which made it feel like she was “walking barefoot on gravel.” Her pain
further “radiates” through her body and causes daily headaches that require her to lie in a dark
place for ten or fifteen minutes. Ms. Henry communicated similar symptoms to her doctors
consistently for years.4
In addition, Ms. Henry’s subjective reports are not the only evidence of her suffering
from debilitating pain. An MRI from May 16, 2016 which showed “moderate right neural
foraminal stenosis at L5-S1” was interpreted by a radiologist as possibly contributing to her
radicular symptoms. (R. at 792). Dr. Vallabhaneni opined in June 2016 that the “pathology at
L5/S1 does correlate with her symptoms.” (R. at 812).
The ALJ’s discounting Ms. Henry’s complaints of low back pain merely because she has
shown at times “generally retained strength” and an “absence of motor deficits” indicates that the
ALJ impermissibly “cherry-picked” facts that supported a finding of non-disability while
ignoring extensive evidence that pointed to a disability finding. See Denton v. Astrue, 596 F.3d
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For example, the surgeon who performed her 2003 discectomy wrote that she “presented with
excruciating leg pain, which had not responded to conservative measures.” (R. at 710). In 2009,
she went to the hospital for “burning” pain brought on by bending over. (R. at 312). She told her
primary care physician for years that she suffered constant pain in her back, neck, skull, limbs,
and bones that became worse with sitting and walking. (R. at 512, 534, 539). To her
rehabilitation specialist, she reported constant sharp, burning pain growing worse despite
treatment. (R. at 804, 807, 816).
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419, 425 (7th Cir. 2010). Moreover, the ALJ’s reliance on those sporadic notations fail to
recognize the waxing and waning of symptoms like pain. See Scrogham v. Colvin, 765 F.3d 685,
696 (7th Cir. 2014). And to the extent that the ALJ wanted to discredit Ms. Henry (as he did)
because she didn’t pursue epidural steroid injections, then the ALJ should have explored the
reasons for that treatment decision, given Ms. Henry’s reported anxiousness about undergoing
injections. (R. at 824). See SSR 16-3p. In short, the ALJ must provide specific reasons that
justify the weight given to Ms. Henry’s symptoms and the decision must be consistent with and
supported by the evidence. Id.; see also Pepper v. Colvin, 712 F.3d 351, 367 (7th Cir. 2013).
Finally, on remand, the ALJ must take care to fully consider the impact of Ms. Henry’s
non-severe impairments. Denton, 596 F.3d at 423. Even if the non-severe impairments may have
no effect on the claimant’s RFC, an ALJ must explain why. Id. Here, the ALJ recognized that
Ms. Henry suffered from the non-severe impairments of diabetes, stomach/hernia issues, and
upper extremity pain which caused some limitations on Ms. Henry’s ability to work. However,
the ALJ failed to explain how these limitations (even if minimal) were accounted for or
otherwise did not impact the RFC determination. Young, 362 F.3d at 1002-03 (indicating that an
ALJ should capture all of a claimant’s problems within the RFC and build an “accurate and
logical bridge from the evidence to his conclusion so that, as a reviewing court, [the court] may
assess the validity of the agency’s ultimate findings and afford a claimant meaningful judicial
review.”).
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For the reasons discussed, the Court cannot conclude that the RFC was supported by
substantial evidence. That error is not harmless. A more restrictive RFC finding supported by
adequate medical evidence could very well affect the disability finding.5
IV. CONCLUSION
For the reasons stated above, the Court REVERSES the Commissioner’s decision and
REMANDS this matter to the Commissioner for further proceedings consistent with this opinion.
The Clerk is DIRECTED to prepare a judgment for the Court’s approval. See Cooke v. Jackson
Nat'l Life Ins. Co., 882 F.3d 630, 631 (7th Cir. 2018).
SO ORDERED.
ENTERED: August 8, 2019
/s/ JON E. DEGUILIO
Judge
United States District Court
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Because an unsupported RFC served as the basis of the VE’s testimony and the ALJ’s
finding that Ms. Henry could perform her past work and other work in the economy, the Court
cannot affirm the findings at steps four and five.
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