Smith v. Commissioner of Social Security

Filing 15

OPINION AND ORDER: Ms. S's request for reversal or remand is GRANTED 9 . This Court REVERSES the Commissioner's decision pursuant to sentence four of 42 U.S.C. § 405(g) and REMANDS for further proceedings consistent with this opinion. Signed by Magistrate Judge Michael G Gotsch, Sr on 3/25/2024. (rmf)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
JOVITA M. S., 1
Plaintiff,
v.
MARTIN O’MALLEY, 2
Commissioner of Social Security,
Defendant.

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CAUSE NO. 3:22-CV-1039-MGG

OPINION AND ORDER
Plaintiff Jovita S. (“Ms. S”) seeks judicial review of the Social Security
Commissioner’s decision denying her application for Disability Insurance Benefits
(“DIB”) under Title II of the Social Security Act. This Court may enter a ruling in this
matter based on the parties’ consent pursuant to 28 U.S.C. § 636(c)(1)) and 42 U.S.C. §
405(g). [DE 6]. For the reasons stated below, the Court remands this case for further
proceedings consistent with this opinion.
I.

OVERVIEW OF THE CASE
On April 7, 2020, Ms. S applied for DIB alleging a disability onset date of

November 27, 2019. Ms. S’s claim was denied initially on July 29, 2020, and upon
reconsideration on October 27, 2020.

To protect privacy interests, and consistent with the recommendation of the Judicial Conference, the
Court refers to the plaintiff by first name, middle initial, and last initial only.
2
Martin O’Malley was sworn into the office of Commissioner of Social Security on December 20, 2023,
and he is substituted as Defendant is his official capacity as Commissioner.
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Following a video hearing on April 28, 2022, an Administrative Law Judge
(“ALJ”) issued an unfavorable decision on May 9, 2022. When the SSA Appeals Council
denied Ms. S’s request for review on November 28, 2022, the ALJ’s decision became the
final decision of the Commissioner. See Fast v. Barnhart, 397 F.3d 468, 470 (7th Cir. 2005).
Ms. S timely sought judicial review of the Commissioner’s decision on December
19, 2022. On March 14, 2023, Ms. S filed her opening brief. Thereafter, the
Commissioner filed a responsive memorandum on April 24, 2023. This matter became
ripe on May 8, 2023, when Ms. S filed her reply.
II.

APPLICABLE STANDARDS
A.

Disability Standard

To qualify for DIB, a claimant must be “disabled” as defined under the Act. A
person is disabled under the Act if “he or she has an inability to engage in any
substantial gainful activity by reason of a medically determinable physical or mental
impairment which can be expected to last for a continuous period of not less than
twelve months.” 42 U.S.C. § 423(d)(1)(A). Substantial gainful activity is defined as work
activity that involves significant physical or mental activities done for pay or profit. 20
C.F.R. § 404.1572.
The Commissioner’s five-step sequential inquiry in evaluating claims for DIB
under the Act includes determinations as to: (1) whether the claimant is engaged in
substantial gainful activity; (2) whether the claimant’s impairments are severe; (3)
whether any of the claimant’s impairments, alone or in combination, meet or equal one
of the Listings in Appendix 1 to Subpart P of Part 404; (4) whether the claimant can
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perform her past relevant work based upon her residual functional capacity; and, if not,
(5) whether the claimant is capable of performing other work. 20 C.F.R. §§ 404.1520;
416.920. The claimant bears the burden of proof at every step except Step Five, where
the burden of proof shifts to the Commissioner. Clifford v. Apfel, 227 F.3d 863, 868 (7th
Cir. 2000), as amended (Dec. 13, 2000).
B.

Standard of Review

This Court has authority to review a disability decision by the Commissioner
pursuant to 42 U.S.C. § 405(g). However, this Court’s role in reviewing social security
cases is limited. Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008). The question on judicial
review is not whether the claimant is disabled; rather, the Court considers whether the
ALJ used “the correct legal standards and [whether] the decision is supported by
substantial evidence.” Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2007).
The Court must uphold 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 Simila v.
Astrue, 573 F.3d 503, 513 (7th Cir. 2009)). Substantial evidence is “more than a scintilla
but may be less than a preponderance.” Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir.
2007). Substantial evidence has also been understood as “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971); see also Summers v. Berryhill, 864 F.3d 523, 526 (7th Cir.
2017). The Supreme Court has also noted that “substantial evidence” is a term of art in
administrative law, and that “whatever the meaning of ‘substantial’ in other contexts,
the threshold for such evidentiary sufficiency is not high” in social security appeals.
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Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). The Court reviews the entire
administrative record to determine whether substantial evidence exists, but it may not
reconsider facts, reweigh the evidence, resolve conflicts of evidence, decide questions of
credibility, or substitute its judgment for that of the ALJ. Young v. Barnhart, 362 F.3d 995,
1001 (7th Cir. 2004). Accordingly, at a minimum, the ALJ must articulate her analysis of
the record to allow the reviewing court to trace the 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). The ALJ is not required to address every piece of
evidence in the record so long as she provides a glimpse into the reasoning behind her
analysis to build the requisite “logical bridge” from the evidence to her conclusions.
Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008).
On the other hand, an ALJ’s decision cannot stand if it lacks evidentiary support
or inadequately discusses the issues. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003).
“The ALJ must confront the evidence that does not support his conclusion and support
why that evidence was rejected.” Moore v. Colvin, 743 F.3d 1118, 1123 (7th Cir. 2014). As
such, an ALJ’s decision will lack sufficient evidentiary support and require remand if
the ALJ “cherry-picked” the record to support a finding of non-disability. Denton v.
Astrue, 596 F.3d 419, 425 (7th Cir. 2010); see also Wilson v. Colvin, 48 F. Supp. 3d 1140,
1147 (N.D. Ill. 2014).
If the ALJ’s decision is not supported by substantial evidence, remand is
typically the appropriate remedy. Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 355 (7th
Cir. 2005). Conversely, "[a]n award of benefits is appropriate only where all factual
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issues have been resolved and the 'record can yield but one supportable conclusion.'" Id.
(quoting Campbell v. Shalala, 988 F.2d 741, 744 (7th Cir. 1993)).
III.

ANALYSIS
A.

The ALJ’s Decision

Ms. S's video hearing before an ALJ on her DIB application took place on April
28, 2022. On May 9, 2022, the ALJ issued his written decision finding that Ms. S was not
disabled, conducting the requisite five-step analysis for evaluating claims for disability
benefits. 20 C.F.R. § 404.1520.
At Step One, an ALJ’s inquiry focuses on whether a claimant is engaging in
substantial gainful activity. Here, the ALJ determined that Ms. S had not engaged in
substantial gainful activity since her alleged onset date of November 27, 2019.
At Step Two, an ALJ’s inquiry focuses on whether a claimant’s impairments are
severe. For an impairment to be considered severe, an impairment or combination of
impairments must significantly limit the claimant’s ability to perform basic workrelated activities. 20 C.F.R. § 404.1521. Here, the ALJ found that Ms. S suffers from the
following severe impairments: carpal tunnel syndrome, cervical spine degenerative disc
disease, headaches, and obesity. [DE 8 at 19-21]. Conversely, an impairment is
considered non-severe when the medical evidence establishes only a slight abnormality
or combination of slight abnormalities that would have no more than a minimal effect
on the claimant’s ability to perform basic work functions. See, e.g., 20 C.F.R. § 404.1522;
S.S.R. 85-28, 1985 WL 56856 (Jan. 1, 1985). Here, the ALJ found that that Ms. S had the

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following non-severe medically determinable impairments: anxiety, depression, and
post-traumatic stress disorder (PTSD). [Id. at 16].
At Step Three, the ALJ found that none of Ms. S’s severe impairments, nor any
combination of her impairments, met or medically equaled the severity of one of the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ considered
listings 1.15, 1.18, and 11.14, as well as SSR 19-4p and SSR 19-2p here. Accordingly,
before moving on to Step Four, the ALJ proceeded to determine whether Ms. S can
perform her past relevant work based upon her residual functional capacity (“RFC”).
A claimant’s RFC includes limitations for all medically determinable
impairments, including non-severe impairments. 20 C.F.R. § 404.1545(a)(2). The RFC is
the most that an individual can do despite her limitations. 20 C.F.R. § 404.1545(a). To
determine a claimant’s RFC, the ALJ must consider the claimant’s symptoms, their
intensity, persistence, and limiting effects, and the consistency of these symptoms with
the objective medical evidence and other evidence in the record. 20 C.F.R. §
404.1545(a)(1). Physical exertion levels in an RFC are classified as either sedentary, light,
medium, heavy, or very heavy. 20 C.F.R. § 404.1567. Here, the ALJ found that Ms. S had
the RFC to perform light work as defined in 20 C.F.R. § 404.1567(b) with the following
additional limitations:
except she can occasionally reach overhead, frequently reach in all other
directions, and frequently handle, finger, and feel. She can occasionally
climb ramps and stairs, as well as occasionally stoop, kneel, crouch, and
crawl. She can never climb ladders, ropes, or scaffolds, never work at
unprotected heights, never around dangerous machinery with moving
mechanical parts, never operate a motor vehicle as part of her work-related
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duties, and never balance, as the term is defined in the SCO. She is limited
to simple, routine tasks with no assembly line work or strictly enforced
hourly production quotas.
[Id. at 23]. Based on this RFC, at Step Four, the ALJ found that Ms. S was unable to
perform her past relevant work as an assembler, electro-mechanical (DOT# 828.381-018,
SVP 7, medium exertion as generally and actually performed). [Id. at 30]. Accordingly,
the ALJ moved on to the last step in the five-step sequential analysis to determine
whether Ms. S could perform other work.
At Step Five, the burden of proof shifts to the Commissioner, who must
“provid[e] evidence that demonstrates that other work exists in significant number in
the national economy that [the claimant] can do, given [her] residual functional capacity
and vocational factors.” 20 C.F.R. § 404.1560(c)(2); see also Liskovitz v. Astrue, 559 F.3d
736, 742-43 (7th Cir. 2009). ALJs typically enlist a vocational expert (“VE”) to testify
regarding which occupations, if any, a claimant can perform. See S.S.R. 83-12. VEs use
information from the Dictionary of Occupational Titles (“DOT”) to inform their
assessments of a claimant’s ability to perform certain types of work. S.S.R. 00-4p, 2000
WL 1898704, at *2 (Dec. 4, 2000). Here, the VE, using the DOT, identified the following
three representative jobs that Ms. S could still perform with her RFC—mail clerk, office
helper, and collator operator—which, respectively, have 12,300 jobs nationally, 10,400
jobs nationally, and 40,000 jobs nationally (62,700 jobs total). [Id. at 31].
Finding that Ms. S could make an adjustment to other work that existed in
significant numbers in the national economy, the ALJ determined that Ms. S was not
under a disability as defined in the Act. [Id. at 31].
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B.

Issues for Review

Ms. S raises two issues for the Court’s review, both of which rest on Ms. S’s
assertion that the ALJ failed to properly evaluate the evidence and create a logical
bridge between the evidence and the conclusion that Ms. S retained an RFC for light
work with additional limitations. First, she contends that the ALJ failed to properly
evaluate the medical evidence regarding her headaches by omitting evidence regarding
her c3 nerve injury, resulting in an RFC that fails to account for all her headache pain
and limitations. Second, she argues that the RFC fails to account for all her handling
and fingering limitations. As a result, Ms. S. contends that her RFC is not based on
substantial evidence and remand is required.
Finding that the ALJ failed to properly consider Ms. S's headache pain from her
c3 nerve injury and relied on cherry-picked evidence regarding the effectiveness of
headache treatments to formulate Ms. S’s RFC, remand is required.
C.

Discussion

An RFC is “an assessment of an individual’s ability to do sustained work-related
physical and mental activities in a work setting on a regular and continuing basis.”
S.S.R. 96-8p. “A ‘regular and continuing basis’ means 8 hours a day, for 5 days a week,
or an equivalent work schedule.” Id. The RFC is the most someone “can do despite
their mental and physical limitations.” 20 CFR § 404.1545(a)(1) and § 416.945(a)(1); SSR
96-8p(5) (emphasis added). The RFC is crafted based on “all the relevant evidence in the
case record, including information about the individual’s symptoms and any ‘medical
source statements’ – i.e., opinions about what the individual can still do despite his or
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her impairment(s) – submitted by an individual’s treating source or other acceptable
medical sources.” SSR 96-8p.
When crafting a claimant’s RFC, an ALJ must follow a two-step sequential
process to determine whether a claimant’s symptoms can be accepted as consistent with
objective medical evidence and other evidence. First, the ALJ must determine whether
there are underlying medically determinable mental or physical impairments that could
reasonably be expected to produce the claimant’s pain or symptoms. Second, if there
are underlying physical or mental impairment(s) that could reasonably be expected to
produce the claimant’s pain or other symptoms, the ALJ must then evaluate the
intensity, persistence, and limiting effects of the claimant’s symptoms to determine the
extent to which they limit the claimant’s work-related activities. See 20 C.F.R. §
416.929(a). The ALJ evaluates the intensity, persistence, and limiting effects of
symptoms by considering subjective statements regarding symptoms and pain, as well
as any description medical sources and other nonmedical sources provide about how
these symptoms affect a claimant’s ability to work. See 20 C.F.R. § 404.1529(a). Relevant
factors include:
(1) The individual’s daily activities;
(2) Location, duration, frequency, and intensity of pain or other symptoms;
(3) Precipitating and aggravating factors;
(4) Type, dosage, effectiveness, and side effects of any medication;
(5) Treatment, other than medication, for relief of pain or other symptoms;
(6) Other measures taken to relieve pain or other symptoms;

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(7) Other factors concerning functional limitations due to pain or other
symptoms
See id. § 404.1529(c)(3). This analysis must focus on “the extent to which the symptoms
reduce the individual’s capacity to perform work-related activities.” Wade v. Berryhill,
No. 2:17-CV-278, 2018 WL 4793133, at *10 (N.D. Ind. Oct. 4, 2018) (citing SSR 16-3p).
Moreover, the ALJ must also consider “whether there are any inconsistencies in the
evidence and the extent to which there are any conflicts between [a claimant’s]
statements and the rest of the evidence . . . “ 20 C.F.R. § 404.1529(c)(4). Accordingly, a
claimant’s alleged symptoms are determined to diminish their capacity to work “to
extent that [the claimant’s] alleged functional limitations and restrictions due to
symptoms, such as pain, can reasonably be accepted as consistent with the objective
medical and other evidence.” 20 C.F.R. § 404.1529(c)(4).
As stated, Ms. S first contends that the ALJ failed properly evaluate evidence
regarding her c3 nerve injury throughout the decision, resulting in critical gaps in the
ALJ’s evaluation of her headaches and determination of her RFC. Specifically, Ms. S
alleges that, at best, the ALJ’s RFC analysis improperly merged consideration of her
migraine headaches with her c3 nerve injury or that, at worst, the ALJ omitted
consideration of her nerve injury pain altogether. Either way, Ms. S contends that her
RFC is erroneously based only on evidence showing her improved migraine symptoms.
The ALJ found headaches to be a severe impairment and acknowledged Ms. S’s
testimony that she “has tension headaches that turn into migraines approximately 4
times a week” and that “she lies down 95% of the day.” [DE 8 at 24]. The ALJ then
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summarized treatment records regarding Ms. S’s headaches. Records show that Ms. S
reported chronic migraine headaches since childhood and that she sought treatment for
her migraines with a neurologist, Dr. Alnahass. [DE 8 at 26, 1421]. On January 26, 2021,
her neurologist prescribed her Emgality injections to alleviate her migraines. [Id. at
1425]. Records show that the Emgality injections controlled her migraine symptoms for
some duration. [Id. at 27, 1399, 1408, 1409, 1414]. These same treatment records also
show that Ms. S later complained of “left-sided head pain that was different from her
migraine pain.” [Id. at 27, 1414]. Ms. S sought treatment for this additional pain in April
2021, and it was separately diagnosed as “cervico-occipital neuralgia.” [Id. at 1418].
Records suggest that this pain was caused by a procedure Ms. S underwent in 2019 to
alleviate chronic pain she was experiencing in her left neck, shoulder, and arm. [See id.
at 569; 737; 763; 1418]. During the procedure, an injection damaged a nerve at the C3
level of her cervical spinal cord. [Id. at 576; 763].
Ms. S contends that the ALJ failed to address evidence demonstrating that her
occipital neuralgia caused ongoing symptoms and limitations even though the record
reflects the separateness of the migraines from the occipital neuralgia. Ms. S maintains
that while she received some relief from her migraines due to the Emgality injections
[Id. at 1408-09], her visits with Dr. Alnahass in April and June 2021 show that she
reported continued head pain stemming from the occipital neuralgia in April and June
2021. [Id. at 1405, 1408-09]. Thus, during these visits, her migraines were distinguished
from the occipital neuralgia. [Id.] (noting them as separate conditions, with Emgality

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treatments listed under the chronic migraines). Another neurologist likewise observed
her migraines as distinct from the occipital neuralgia in August 2021. [Id. at 733].
The ALJ’s summary of the evidence does acknowledge that Ms. S suffered from
both migraine headaches and a separate “left-sided head pain.” [Id. at 27]. But even
though the ALJ mentioned this separate headache pain, the ALJ makes no mention of
Ms. S’s separate diagnosis of occipital neuralgia, nor does he address her complaints of
separate, ongoing pain from this issue when formulating the RFC—pain that was not
addressed by Emgality. John L. v. Saul, No. 4:19CV18, 2020 WL 401887, at *12 (N.D. Ind.
Jan. 23, 2020) (observing that “summarizing the evidence is not a substitute for
analysis”) (internal citations omitted); see also Smith v. Astrue, No. 09 C 6210, 2011 WL
722539, at *12 (N.D. Ill. Feb. 22, 2011) (stating “cataloguing [evidence from the record] is
no substitute for analysis or explanation”). Moreover, the ALJ based the RFC
determination on the Emgality’s reported effectiveness for Ms. S’s migraines [see DE 8 at
29]. In doing so, the ALJ failed to address evidence where Ms. S reported that the
Emgality did not control pain from occipital neuralgia. Without such analysis, the Court
is unable to follow the ALJ’s reasoning, and therefore, the Court cannot be assured that
the ALJ all the important evidence here. Scott, 297 F.3d at 595.
What’s more, the ALJ also discounts Ms. S’s testimony regarding the severity of
her headaches by focusing solely on the reported effectiveness of Ms. S’s Emgality
injections for her migraines, stating that “as recent as March 2022 the claimant reported
. . . that Emgality was controlling her headaches.” [DE 8 at 29]. But in this same March
2022 report, Ms. S also reported that “following each dose of Emgality now, the
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headache is well-controlled for only 2 weeks as opposed to entire month previously.”
[DE 8 at 1399]. By mentioning only the portion of the treatment record that stated the
Emgality controlled her headaches when determining the RFC, the ALJ failed to
address evidence about the extent of its effectiveness or otherwise explain how the
evidence regarding the short-term relief of her migraines was more persuasive. Bates v.
Colvin, 736 F.3d 1093, 1099 (7th Cir. 2013) (internal citation omitted); Golembiewski v.
Barnhart, 322 F.3d 912, 917 (7th Cir. 2003) (observing that an “ALJ may not ignore an
entire line of evidence that is contrary to [his] ruling”). Without more, the Court cannot
trace the path of the ALJ’s reasoning to be assured that the ALJ considered all the
important evidence when determining that Ms. S’s allegations were not consistent with
the record. Scott, 297 F.3d at 595. Thus, the Court is left to “speculate as to the basis for
the RFC limitations” which it cannot do through its limited review. See Moore, 743 F.3d
at 1128.
In response, the Commissioner contends that Ms. S’s allegations of her
symptoms related to occipital neuralgia are not sufficient to require remand, as she does
not point to any specific functional limitations. The Commissioner is correct that the
mere existence of an impairment or a diagnosis is not determinative. See Melanie W. v.
Saul, No. 1:19-cv-403, 2020 WL 3056309, at *4 (N.D. Ind. June 2, 2020). Despite this, the
Commissioner’s response remains unavailing here. First, the ALJ did not discount Ms.
S’s occipital neuralgia because he found that it did not cause her functional
limitations—the ALJ does not appear to consider it in any way. Moreover, Ms. S points
to evidence demonstrating that the occipital neuralgia caused her separate head pain—
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pain that was not addressed by Emgality injections. See Robert P. v. Kijakazi, No.
3:21CV305, 2022 WL 831870, at *10 (N.D. Ind. Mar. 21, 2022) (explaining that the
claimant was not required to “to furnish direct evidence that his impairments, for
example, would allow him to sit specifically for one hour per day, or lift 10 pounds
occasionally”) (citing 20 C.F.R. § 404.1520 and 20 C.F.R. § 404.1513). Finally, the ALJ’s
conclusion about the effectiveness of the Emgality also focuses only on portions of Ms.
S’s treatment records regarding the relief it provided without also confronting portions
of those same records stating that the Emgality only provided Ms. S with relief for a
limited amount of time. Denton, 596 F.3d at 425 (“An ALJ . . . cannot simply cherry pick
facts that support a finding of nondisability . . ..”). Thus, the Court finds that remand is
appropriate here.
Ms. S also maintains that the ALJ failed to adequately account for her handling
and fingering limitation caused by her bilateral carpal tunnel. The ALJ will have the
opportunity to fully discuss and reevaluate Ms. S’s second allegation on remand. This is
not to say that there are no other errors in the ALJ’s decision, but the Court need not
discuss Ms. S’s second argument for remand when errors have been identified in the
ALJ’s discussion of Ms. S’s headaches from both her occipital neuralgia and migraines.
On remand, the Commissioner should consider all specifications of error before
rendering a decision.

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IV.

CONCLUSION
For the above reasons, this Court cannot find that substantial evidence supports

the ALJ’s conclusions. Therefore, Ms. S’s request for reversal or remand is GRANTED.
[DE 9]. This Court REVERSES the Commissioner’s decision pursuant to sentence four
of 42 U.S.C. § 405(g) and REMANDS for further proceedings consistent with this
opinion.
SO ORDERED this 25th day of March 2024.
s/Michael G. Gotsch, Sr.
Michael G. Gotsch, Sr.
United States Magistrate Judge

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