BADGER v. ASTRUE

Filing 29

ENTRY on Judicial Review: This Court hereby REVERSES and REMANDS this case for further proceedings consistent with this opinion (see Entry). Signed by Magistrate Judge Mark J. Dinsmore on 5/15/2012.(SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

RHONDA BADGER,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY
Defendant.

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NO. 1:11-cv-00778-MJD-TWP

Entry on Judicial Review
Plaintiff Rhonda Badger1 requests judicial review of the final decision of the
Commissioner of the Social Security Administration (“Commissioner”) denying her application
for Social Security Disability Insurance Benefits (“DIB”) under Title II of the Social Security
Act (“the Act”). See 42 U.S.C. §§423. The Court rules as follows.2
I. Procedural History
Badger applied for DIB on December 13, 2007, alleging a disability onset date of July 31,
2007. She was insured for purposes of DIB through March 31, 2012. Badger’s application was
denied initially and upon reconsideration. Thereafter Badger requested a hearing, which was
held before Administrative Law Judge (“ALJ”) Stuart T. Janney on June 11, 2010. The ALJ
denied her application on July 9, 2010, and the Appeals Council denied review on May 24, 2011,
making the ALJ’s decision the agency’s final decision for purposes of judicial review. Badger

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Badger’s name was Rhonda Whisman at the time of her initial application.
The parties consented to the Magistrate Judge conducting all proceedings and ordering the entry of judgment in
accordance with 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. Any objections to or appeal of this decision must be
made directly to the Court of Appeals in the same manner as an appeal from any other judgment of a district court.
28 U.S.C. § 636(c)(3).
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filed her Complaint with this Court on June 8, 2011.
II. Factual Background and Medical History
Badger was 29 years old on her alleged disability onset date, and 32 years old on the date
of the ALJ’s decision. She has a high school GED and last worked as a waitress for ten months
ending in July 2007. Badger has two minor children and was not married at the time of the
hearing. In 2002, Badger was diagnosed with lumbar degenerative disc disease, lumbar
radiculopathy, and chronic lower back pain. Badger was also diagnosed with fibromyalgia and
irritable bowel syndrome (“IBS”), and she reported episodes of urinary incontinence. A
consultative mental status examination also noted a diagnostic impression of depression and
anxiety. Badger complained that she had lower back pain radiating into both legs, that standing
and walking for prolonged periods aggravated her pain.
Badger’s back conditions were treated with epidural steroid injections and numerous
pain, anti-inflammatory and anti-depressant medications. One of her treating physicians, Dr.
Matthew Surburg, M.D., opined that one of the likely causes of Badger’s back pain was
increased anxiety; however, two MRIs also showed that Badger has degenerative disc disease
and disc herniation.
III.

Applicable Standard

Disability is defined as “the inability 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. § 1382(a)(3)(A); 20 C.F.R. § 416.905. In order to be found
disabled, a claimant must demonstrate that her physical or mental limitations prevent her from
doing not only her previous work, but any other kind of gainful employment which exists in the

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national economy, considering her age, education, and work experience. 42 U.S.C. §
1382(a)(3)(B).
In determining whether a claimant is disabled, the Commissioner employs a five-step
sequential analysis. At step one, if the claimant is engaged in substantial gainful activity she is
not disabled, despite her medical condition and other factors. 20 C.F.R. § 416.920(a)(4)(i). At
step two, if the claimant does not have a “severe” impairment (i.e., one that significantly limits
her ability to perform basic work activities), she is not disabled. 20 C.F.R. § 416.920(a)(4)(ii). At
step three, the Commissioner determines whether the claimant's impairment or combination of
impairments meets or medically equals any impairment that appears in the Listing of
Impairments, 20 C.F.R. pt. 404, Subpart P, Appendix 1, and whether the impairment meets the
twelve-month duration requirement; if so, the claimant is deemed disabled. 20 C.F.R. §
416.920(a)(4)(iii). At step four, if the claimant is able to perform her past relevant work, she is
not disabled. 20 C.F.R. § 416.920(a)(4)(iv). At step five, if the claimant can perform any other
work in the national economy, she is not disabled. 20 C.F.R. § 416.920(a)(4)(v).
In reviewing the ALJ's decision, the ALJ's findings of fact are conclusive and must be
upheld by this Court “so long as substantial evidence supports them and no error of law
occurred.” Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). “Substantial evidence
means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion,” id., and this Court may not reweigh the evidence or substitute its judgment for that
of the ALJ. Overman v. Astrue, 546 F.3d 456, 462 (7th Cir. 2008).
The ALJ “need not evaluate in writing every piece of testimony and evidence submitted.”
Carlson v. Shalala, 999 F.2d 180, 181 (7th Cir. 1993). However, the “ALJ's decision must be
based upon consideration of all the relevant evidence.” Herron v. Shalala, 19 F.3d 329, 333 (7th

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Cir. 1994). The ALJ is required to articulate only a minimal, but legitimate, justification for his
acceptance or rejection of specific evidence of disability. Scheck v. Barnhart, 357 F.3d 697, 700
(7th Cir. 2004). In order to be affirmed, the ALJ must articulate his analysis of the evidence in
his decision; while he “is not required to address every piece of evidence or testimony,” he must
“provide some glimpse into his reasoning ... [and] build an accurate and logical bridge from the
evidence to his conclusion.” Id.
IV. The ALJ’s Decision
The ALJ first found that Badger had met the insured status requirements of the Social
Security Act through March 31, 2012. Applying the five-step analysis, the ALJ found at step
one that Badger had not engaged in substantial gainful activity since July 31, 2007, the alleged
onset date. At step two, the ALJ found that Badger’s medically determinable impairments
included lumbar and cervical degenerative disc disease with right lower extremity S1
radiculopathy, mild carpal tunnel syndrome, irritable bowel syndrome, fibromyalgia syndrome,
obesity with deconditioning, depression and anxiety. At step three, the ALJ determined that
Badger does not have an impairment or combination of impairments that meets or medically
equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
The ALJ determined that Badger had the residual functional capacity (“RFC”) to perform
light work as defined in 20 C.F.R. 404.1567(b), with the exception of handling and fingering
frequently with the bilateral upper extremities, frequently ascending ramps and/or stairs and
balance, never climb ladders ropes or scaffolding, occasionally stoop, kneel, crouch, and/or
crawl, must work in an environment with flexible break times with access to bathroom facilities,
and is limited to understanding, remembering, and carrying out one or two step instructions.

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At step four, the ALJ determined that Badger does not have the capacity to perform her
past work. At step five, the ALJ determined that, considering Badger’s age, education, work
experience, and RFC, there are jobs that exist in significant numbers in the national economy
that she could perform.
V. Discussion
Badger presents four arguments as to why the ALJ’s decision was in error and the case
should be remanded. Specifically, Badger claims that: (1) the ALJ’s step three finding that
Badger did not have an impairment or combination of impairment that medically equals Listing
1.04 had no basis in the record, was merely arbitrary, and ignored the evidence; (2) the ALJ’s
RFC determination that Badger could perform “light work” was in error; (3) the ALJ improperly
discounted Badger’s treating physician’s functional assessment by according it “little weight;”
(4) the ALJ improperly found that there was no record of Badger’s urinary incontinence.
A. The ALJ’s Step Three Finding
Badger argues that her back impairment meets the requirement for Listing 1.04 Disorders
of the Spine and that the ALJ ignored evidence of her disability. In order to meet Listing 1.04A,
a claimant with degenerative disc disease must have evidence of nerve root compression
characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor
loss accompanied by sensory or reflex loss, and if there is involvement of the lower back,
positive straight-leg raising test. 20 C.F.R. Part 404, Appendix 1, § 1.04A. To meet Listing
1.04C, a claimant must demonstrate that she has lumbar spinal stenosis resulting in an inability
to ambulate effectively. 20 C.F.R. Part 404, Appendix 1, § 1.04C. An inability to ambulate
effectively means an extreme limitation in the ability to walk, and having insufficient lower
extremity functioning to permit independent ambulation without the use of a hand-held assistive

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device or devices that limits the functioning of both upper extremities. 20 C.F.R. Part 404,
Appendix 1 § 1.00B(2)(b). Examples of ineffective ambulation include the inability to walk
without the use of a walker, two crutches or two canes. Id.
Badger focuses on the results of a 2003 and 2009 MRI to demonstrate that she meets the
criteria for Listing 1.04A. These MRIs show that Badger has degenerative disc disease and disc
herniation. However, an impairment cannot meet a listing merely based upon a diagnosis, but
instead must satisfy all of the criteria in the listing, and it is the plaintiff’s burden to show that
she met or medically equaled all of these requirements. 20 C.F.R. 404.1525(d); Rice v.
Barnhart, 384 F.3d 363, 369 (7th Cir. 2004). The MRI shows that Badger has a disc protrusion
at the L4-5 level causing mild spinal canal stenosis, a degenerated disc and moderately sized disc
protrusion at L5-S1 causing mild to moderate stenosis. [Tr. 335]. Badger does not, however,
point to any evidence of a positive straight-leg raising test, which is specifically required to meet
the criteria for Listing 1.04A, and there is no evidence in the record documenting such a test
result. In fact, the record shows evidence of negative straight leg raising tests [Tr. 757], which is
contrary to Badger’s assertion that there was no specifically stated straight leg test in the file and
her implication that such a test had been performed but had not been included in the file. [Dkt. 18
at 11]. Thus, Badger has not show that she meets the requirements of Listing 1.04A.
Badger also has not demonstrated that she met the requirements for Listing 1.04C. There
is no evidence that Badger required a walker, crutches or canes to ambulate, nor is there any
evidence that Badger had motor or reflex loss due to atrophy. The medical records from Dr.
Surburg also indicate that Badger had normal gait [Tr. 661, 669, 672, 686, 691, 702], further
supporting the ALJ’s conclusion that Badger did not meet the criteria for Listing 1.04C. Thus,
Badger has failed to meet her burden of showing that her back impairment satisfies all of the

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requirements for listing 1.04, and substantial evidence in the record supports the ALJ’s step three
finding.
B. The ALJ’s RFC Determination
Badger next argues that the ALJ’s RFC determination that she could perform light work
with some limitations was not supported by substantial evidence and that he ignored contrary
evidence of her MRI results, her treating physicians’ opinions, and her hearing testimony. In
addition, Badger argues that the ALJ failed to mention her complaints of pain when posing the
hypotheticals to the Vocational Expert. When considering the appropriateness of a hypothetical
question posed to a vocational expert, the hypothetical question must be supported by the
medical evidence in the record. Cass v. Shalala, 8 F.3d 552, 555-56 (7th Cir. 1993). Before
determining whether the hypothetical question was appropriate, the Court must first determine
whether the ALJ performed a proper RFC analysis.
Badger alleges that the ALJ’s disregard of her complaints about pain in his RFC analysis
and failure to mention her constant pain in the hypothetical posed to the Vocational Expert was
reversible error. The ALJ found Badger’s complaints about the intensity, persistence, and
limiting effects of her pain to be not credible because they were inconsistent with her activities of
daily living and the longitudinal medical record. [Tr. 14]. The Seventh Circuit has determined
that, when doing a credibility determination of the claimant’s complaints about pain, the ALJ
must take into account all evidence that both supports the plaintiff’s claims and those that
support denial. Zurawski v. Halter, 245 F.3d 881, 888 (7th Cir. 2001). “Both the evidence
favoring the claimant as well as the evidence favoring the claim's rejection must be examined,
since review of the substantiality of evidence takes into account whatever in the record fairly
detracts from its weight.” Id. (quoting Bauzo v. Bowen, 803 F.2d 917, 923 (7th Cir.1986))

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(emphasis in original). The ALJ cannot merely ignore the claimant's allegations when there are
medical findings that reasonably support a claimant's complaint of pain. Id. at 887-88. Where
the ALJ only mentions medical evidence favoring denial and his analysis does not make it clear
that he considered the record as a whole or attempted to explain why evidence favorable to the
claimant did not outweigh evidence upon which he relied, a redetermination of the claimant’s
RFC is required. Id. at 888-89.
The ALJ supported his credibility determination by citing to a single medical report
where Badger reported that she was independent in her activities of daily living, the fact that she
has two children and a dog, and that she uses marijuana. However, the ALJ failed to examine
whether these activities were minimal or whether they established that Badger was capable of
engaging in substantial physical activity such as that posed in the hypothetical to the Vocational
Expert. The ALJ ignored the fact that both of Badger’s children that she cared for were
teenagers (age 13 and 14) at the time of the hearing [Tr. 30], which is less physically demanding
than caring for children of a younger age. He also ignored information in the same medical
record he cited indicating that she cared for a dog that Badger has “difficulty with housework”
and that her children do the yard work for her. [Tr. 548]. In addition, the ALJ does not
adequately explain how Badger’s marijuana consumption and her ability to procure it indicates
“higher functional abilities” than she asserted at the hearing, as Badger’s method of procuring
the drugs were never discussed or analyzed, and there is no indication that an increased amount
of physical exertion was required. While this Court recognizes that marijuana consumption is an
illegal activity, that fact alone cannot be used as a basis for discounting a claimant’s credibility
with regard to her subjective complaints about pain.

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In terms of the medical evidence that the ALJ claimed contradicted Badger’s statements
concerning pain, the ALJ asserts that Badger’s medical regimens were “largely successful.” [Tr.
14]. However, while the records cited by the ALJ indicate that Badger’s mental impairments
responded well to her medications, they are also fraught with evidence that Badger’s pain was
not well controlled by medication. [Tr. 382 (“apparent discomfort” in turning neck); 649 (“pain
is poorly controlled”); 653 (“pain meds are not working”); 654 (“pain has been very difficult to
control….taking Methadone at different times without relief”); 661 (“methadone has given her
less effectiveness than we had hoped for”); 669 (back pain “continues to be a problem”)]. The
ALJ does not make any attempt to explain why this other evidence in the record that favors
Badger’s subjective complaints about pain was overcome by the evidence upon which he relied.
While this Court is not permitted to reweigh evidence, the ALJ’s failure to examine evidence that
weighed in favor of the claimant constitutes reversible error requiring remand. Accordingly, the
ALJ must conduct a reevaluation of Badger’s complaint of pain with due regard for the full range
of medical and testimonial evidence, and a redetermination of Badger’s residual functional
capacity is necessary.
C. Rejection of Treating Physician’s Opinion
Badger alleges that the ALJ erred in discounting her treating physician’s opinion and
according such opinion “little weight.” Dr. Surburg opined that Badger was functionally unable
or very limited to stand, walk, sit, bend, lift, push/pull or operate machinery, and that she was
unable to return to full time employment. The ALJ found that Dr. Matthew Surburg’s physical
functional capacity statement was inconsistent with his own objective findings and the record as
a whole. [Tr. 16].

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Generally, a treating physician’s opinion regarding the nature and severity of a claimant’s
medical condition is entitled to controlling weight if it is well supported by medical findings and
not inconsistent with other substantial evidence in the record. Clifford v. Apfel, 227 F.3d 863,
870 (7th Cir. 2000). Medical evidence may only be discounted if it is internally inconsistent or
inconsistent with other evidence. 20 C.F.R. § 404.1527(c); Knight v. Chater, 55 F.3d 309, 314
(7th Cir. 1995). The ALJ makes the conclusory statement that Dr. Surburg’s opinion is
inconsistent to his own findings and cites to exhibits 17F (Tr. 659-667), 18F (Tr. 668-682) and
21F (Tr. 698-716) in support of this determination, and states that Dr. Surburg reported “very
few objective findings” that would justify his opinion on Badger’s functional limitations. [Tr.
16]. The Commissioner also cites a number of medical records that he claims “consistently
report largely normal examination findings” and do not contain evidence that Badger is limited
to the extent that Dr. Surburg opined. [Dkt. 25 at 15]. However, closer examination of the
medical records cited by the ALJ and the Commissioner reveal consistent reports of pervasive,
severe pain that is difficult to control, numerous prescriptions for narcotic pain medications
(including Methadone, OxyCotin, Percoset and Norco) and worsening pain with exertion. [Tr.
661, 671-72, 700-03, 708-13]. The ALJ fails to explain how these records are inconsistent with
Dr. Surburg’s functional capacity assessment. The records cited by the Commissioner which he
claims report “normal findings” further discredit the ALJ’s determination, as many of these
records predate Badger’s onset date and related to her treatment for smoking cessation. [Tr. 26792, 296-97, 304-05, 390-97, 409-10, 418-19]. In light of the insufficient analysis of these
medical records, as well as the deficiencies cited above with regard to the RFC analysis, this
Court finds that the ALJ improperly accorded “little weight” to Dr. Surburg’s opinion and must
reexamine the proper weight to be given to Dr. Surburg’s findings on remand.

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D. Disregard of Evidence Urinary Incontinence
Finally, Badger also argues that the ALJ erred by discounting her complaints of urinary
incontinence. Urinary incontinence constitutes an impairment under the Social Security Act that
must be considered to determine whether a claimant is disabled. Golembiewski v. Barnhart, 322
F.3d 912, 917 (7th Cir. 2003). According to 20 C.F.R. Part 404, Subpart P, Appendix 1, §
1.00K(4), bladder incontinence may be caused by degenerative disc disease and should be
evaluated under listing 1.04. A report by Dr. John Chase suggests that Badger’s urinary
incontinence may be caused by myelopathy3 [Tr. 482-83] but there is no other record confirming
that Badger’s urinary incontinence is indeed caused by her degenerative disc disease or
herniation. The ALJ’s conclusion that there was no actual diagnosis of urinary incontinence is
supported by the record.
Nevertheless, even if Dr. Chase’s records do constitute a “diagnosis” of urinary
incontinence, the ALJ’s determination would constitute harmless error because the ALJ found in
his RFC assessment that Badger must work in an environment that allows flexible break times
with access to bathroom facilities. [Tr. 13]; see Smith v. Massanari, 2001 WL 936123 at *2 n. 6
(reduction of RFC to allow for frequent access to bathroom facilities does not suggest a finding
of lack of credibility of claimant regarding allegations of urinary incontinence). Although the
ALJ’s consideration of Badger’s urinary incontinence does not constitue reversible error, the
ALJ must still consider this factor upon remand when reassessing Badger’s RFC in accordance
with the reasoning stated above.
VI. Conclusion

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Myelopathy is defined as “any functional disturbance and/or pathological change in the spinal cord; often used to
denote nonspecific lesions…” http://medical-dictionary.thefreedictionary.com/myelopathy, last accessed on May 10,
2012.

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For the foregoing reasons, this Court hereby REVERSES and REMANDS this case for
further proceedings consistent with this opinion.
SO ORDERED.

Dated:

05/15/2012

Mark J. Dinsmore
United States Magistrate Judge
Southern District of Indiana

Distribution:
Thomas E. Kieper
UNITED STATES ATTORNEY'S OFFICE
[e-mail]
Thomas E. Williams
[e-mail]

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