BRICKER v. ASTRUE

Filing 26

ORDER: The Court REMANDS the case for further proceedings consistent with this opinion (see Order). Signed by Magistrate Judge Mark J. Dinsmore on 5/8/2012.(SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

CLAUDIA E. BRICKER,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
Defendant.

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) NO. 1:11-cv-00871-MJD-WTL
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Order
Plaintiff Claudia Bricker requests judicial review of the final decision of Defendant
Michael J. Astrue, Commissioner of the Social Security Administration (“Commissioner”),
denying her applications for Disability Insurance Benefits (“DIB”) under Title II of the Social
Security Act (“the Act”) and for Supplemental Security Income (“SSI”) under Title XVI of the
Act. For the reasons set forth, the Court REMANDS the case for further proceedings consistent
with this opinion.

I. Background
A. Procedural History
On November 6, 2007, Bricker filed applications for DIB and SSI, alleging disability
beginning on June 30, 2007. On March 17, 2008, the claims were initially denied and on May
20, 2008, the claims were denied upon reconsideration. Thereafter, Bricker requested a hearing,
which was held before Administrative Law Judge (“ALJ”) Stephen E. Davis on February 18,
2010. On August 23, 2010, the ALJ denied her applications. Bricker requested review of the
ALJ’s decision by the Appeals Council. On May 16, 2011, the Appeals Council affirmed the

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ALJ’s decision. On June 29, 2011, Bricker filed this timely appeal requesting review of the
ALJ’s decision pursuant to 42 U.S.C. § 405(g).

B. Factual Background
Bricker’s past relevant work includes work as a cashier and a receptionist. Bricker’s last
job ended in June 2007. Bricker alleges that she is totally disabled because of both physical and
mental impairments. Because Bricker does not appeal the ALJ’s decision with regard to her
physical impairments, the Court will focus on Bricker’s mental impairments, specifically, her
depression and anxiety.
Bricker alleges to have suffered from depression and anxiety most of her life. Her
depression got worse after the death of her third husband in 2007. For a period of time, Bricker
was homeless and lived in her van. Bricker’s friend Mary Brown (“Brown”) allowed Bricker to
live with her for a time; however, Brown asked Bricker to leave because Bricker cried all of the
time. Bricker alleges that, at times, she has difficulty getting out of bed and cries uncontrollably
due to her depression, which is part of the reason she cannot work. Additionally, Bricker suffers
from social anxiety and avoids groups of people and going out in public.
On December 7, 2007, Bricker underwent a consultative examination, where she
primarily complained that her depression prevented her from working on a predictable basis. [R.
203]. The examiner noted that Bricker displayed adequate attention span and memory function
as needed for an employment situation. [R. 204]. The examiner then concluded that it is
“impossible for the examiner to document or authenticate the claimant’s alleged lack of
employability because of chronic depression.” [R. 206].
On December13, 2007, consultative examiner Dr. Suzanne Leiphart examined Bricker.
Dr. Leiphart diagnosed Bricker with the following: anxiety disorder; depressive disorder with

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bipolar features; cognitive disorder; and personality disorder features. [R. 210]. Dr. Leiphart
noted that Bricker displayed a negative attitude and poor concentration throughout most of the
examination and that Bricker presented information confusingly and not in sequential order. [R.
207]. Dr. Leiphart concluded that Bricker’s judgment and insight were impaired and that she did
not appear capable of managing her funds. [R. 209; 210]. Dr. Leiphart assigned Bricker a Global
Assessment of Function (“GAF”) score of fifty, indicating serious symptoms or serious
limitations in functioning. [R. 210].
On February 14, 2008, Bricker completed the Wechsler Memory Scale III testing
(“WMS”). Bricker’s scores ranged from the borderline (one of eight categories) and low average
(five of eight categories) to the average range (two of eight categories). Overall, the results
indicated that Bricker did not have significant short-term memory problems. [R. 224].
On March 17, 2008, Dr. B. Randall Horton completed a mental residual functional
assessment, finding Bricker moderately limited in the following mental activities:
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ability to understand and remember detailed instructions,

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ability to carry out detailed instructions,

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ability to maintain attention and concentration for extended periods,

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ability to complete a normal work-day and workweek without interruptions from
psychologically based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods

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ability to accept instructions and respond to criticism from supervisors

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ability to travel in unfamiliar places or use public transportation

[R. 226-27]. In the remaining mental activities, Dr. Horton found Bricker not significantly
limited. Overall, Dr. Horton concluded that Bricker’s mental impairments were severe, but that

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she remained capable of remembering and performing simple, repetitive tasks. [R. 228].
Additionally, two nonexamining Disability Determination Service (“DDS”) clinicians, Dr. Sands
and Dr. Lavallo, completed Disability Determination or Transmittal Forms (“DDT”) that
indicated Bricker did not meet or equal a listing. [R. 47-50].

II. Disability and Standard of Review
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. § 423(d)(1)(A). 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 national economy,
considering her age, education, and work experience. 42 U.S.C. § 423(d)(2)(A).
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, subpt. P, App. 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). In order to determine steps four and five, the ALJ must determine the
claimant’s Residual Functional Capacity (“RFC”), which is the “maximum that a claimant can

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still do despite [her] mental and physical limitations.” Craft v. Astrue, 539 F.3d 668, 675-76 (7th
Cir. 2008) (citing 20 C.F.R. § 404.1545(a)(1); SSR 96-8p) 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, this Court must uphold the ALJ's findings of fact if the
findings are supported by substantial evidence 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. Further,
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). While the Court reviews the ALJ’s decision
deferentially, the Court cannot uphold an ALJ’s decision if the decision “fails to mention highly
pertinent evidence, …or that because of contradictions or missing premises fails to build a
logical bridge between the facts of the case and the outcome.” Parker v. Astrue, 597 F.3d 920,
921 (7th Cir. 2010) (citations omitted).
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
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).

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III. The ALJ’s Decision
At step one, the ALJ found that Bricker had not engaged in substantial gainful
employment since the alleged onset date. [R. 11]. At step two, the ALJ found that Bricker had
the following combination of impairments: “degenerative changes, lumbar spine; high blood
pressure; obesity; degenerative changes, right knee.” [Id.]. The ALJ found that Bricker’s mental
impairments were not severe. [Id. at 13]. At step three, the ALJ found that Bricker did not have
an impairment or combination of impairments that met or medically equaled one of the listed
impairments. [Id.]. The ALJ found that Bricker had the residual functional capacity (“RFC”) to
perform light work. [Id. at 13-14]. At step four, the ALJ found that Bricker was unable to
perform any past relevant work. [Id. at 15]. At step five, the ALJ found that Bricker could
perform jobs in the national economy and therefore she was not disabled. [Id. at 16].

IV. Discussion
Bricker first argues that the ALJ’s denial decision is not supported by substantial
evidence. Next, Bricker argues that the ALJ’s credibility determination is patently erroneous.
Lastly, Bricker argues that substantial evidence fails to support the ALJ’s step five
determination. The Court will address each argument in turn.
A. Substantial Evidence
Specifically, Bricker alleges that substantial evidence fails to support the ALJ’s denial
decision because the ALJ: (1) failed to cite to Listing 12.04; (2) ignored the evidence that
showed Bricker met Listing 12.04; (3) failed to summon a medical advisor;1 and (4) made a

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Contrary to Bricker’s argument, the ALJ was not required to summon a medical advisor. Under Social
Security Ruling (“SSR”) 96-6p, a signature of a state agency medical or psychological consultant on a
DDT form “ensures that consideration by a physician (or psychologist) designated by the Commissioner
has been given to the question of medical equivalence at the initial and reconsideration levels of
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plainly erroneous decision, because he substituted his opinions for the opinions of Bricker’s
treating and examining physicians.
1. Failure to Cite to Listing 12.04
An ALJ’s failure to refer to a relevant listing does not, by itself, require reversal. Knox v.
Astrue, 572 F. Supp. 2d 926, 935 (7th Cir. 2008) (citing Rice v. Barnhart, 384 F.3d 363, 369-70
(7th Cir. 2004)). However, a failure to mention a specific listing “‘combined with a perfunctory
analysis may require a remand.’” Id. (quoting Ribaudo v. Barnhart, 458 F.3d 580, 583 (7th Cir.
2006)). Such is the case here.
In evaluating mental impairments, if the claimant has a medically determinable mental
impairment, the ALJ must rate the degree of functional limitation in four broad areas of
functioning known as the paragraph B criteria. Craft, 539 F.3d at 674 (citing 20 CFR §
404.1520a(c)(3)). These areas of functioning include activities of daily living; social
functioning; concentration, persistence, or pace; and episodes of decompensation. Id. If—as is
the case here—the ALJ rates the first three as mild or none and there are no episodes of
decompensation, the impairment is not considered severe at step two. Id. at 675 (citing §
404.1520a(d)(1)). Otherwise, the impairment is considered severe, requiring the ALJ to move to
step three and determine whether the impairment meets or equals any listing. Id. (citing §
404.1520a(d)(2)).
Most of the ALJ’s discussion of Bricker’s mental impairments occurred in the ALJ’s step
two analysis, where he found that Bricker’s mental impairments were not severe. [R. 13]. In
reaching this finding, the ALJ did not adopt the DDS clinicians’ opinions who found Bricker’s
mental impairments were severe. [Id.]. Instead, the ALJ based his finding on what he described
administrative review.” SSR 96-6p, 1996 WL 374180 at *3 (July 2, 1996). Here, Dr. Sands and Dr.
Lavallo completed DDT forms that indicated Bricker did not meet or equal a Listing. [R. 47-50].
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as the totality of the record that did not provide convincing evidence that Bricker’s functionality
is meaningfully compromised due to her mental status. [Id.]. As discussed below, however, the
ALJ’s analysis fails to build a logical bridge between the facts of the case and the outcome.
The Commissioner argues that the ALJ did consider the elements of listing 12.04 even if
he did not explicitly refer to the relevant listing. [Dkt. 21 at 5]. To meet listing 12.04, Bricker
had to satisfy the criteria in both paragraphs A (a set of medical findings) and B (impairment
related functional limitations) of listing 12.04. In analyzing the severity of Bricker’s mental
impairments, the ALJ discussed the paragraph B criteria, which require Bricker to have marked
limitation in at least two of the first three broad areas of functioning. The ALJ found that
Bricker had mild limitations in all three of these functional areas. [R. 13]. In so finding, the ALJ
not only found that Bricker’s mental impairments were not severe, but he also found that Bricker
could not meet listing 12.04 because she could not satisfy the paragraph B criteria. The ALJ’s
analysis, however, is built upon a house of cards.
2. Ignoring Evidence that Supports Bricker’s claim
In finding that Bricker’s mental impairments were not severe and that Bricker did not
satisfy the paragraph B criteria, the ALJ stated that the “[e]vidence supplied subsequent to the
DDS determination, reflects general stabilization in the claimant’s emotional status.” [Id.]. The
ALJ cites to no specific evidence in the record, but the Commissioner points the Court to
progress notes from Midtown Community Health Center dated January 18, 2009, where
Bricker’s symptoms were described as mild. [Dkt. 21 at 5 (citing R. 301)]. However, any
“stabilization” appears short-lived; a mental health care note dated October 14, 2009 described
Bricker’s prognosis as “not good,” noting that Bricker was persistently irritable and depressed,
had “much anxiety” around others, and frequent crying, which rendered her unable to work. [R.

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312]. The ALJ failed to discuss this piece of relevant evidence that significantly undercuts his
reasoning for rejecting the DDS clinicians’ determination that Bricker had severe mental
impairments.
The ALJ also ignored relevant evidence in finding that Bricker had only mild limitations
in the paragraph B areas of functioning. In the area of social functioning, the ALJ noted that
Bricker “is somewhat ill-at-ease around crowds.” [R. 13]. This statement is at odds with
medical evidence that Bricker had “much anxiety” around others. [Id. at 312]. The ALJ’s
analysis fails to resolve this conflict. In the area of concentration, persistence, or pace, the ALJ
noted that Bricker “attends to her personal finances.” This statement is at odds with Dr.
Leiphart’s conclusion that Bricker “did not appear capable of managing her funds.” [Id. at 210].
Again, the ALJ fails to resolve this conflict.
In fact, while briefly discussing Dr. Leiphart’s examination, the ALJ failed to determine
what weight to give her conclusions and fails to discuss Bricker’s assigned GAF score of fifty,
which indicated that Bricker had serious symptoms or serious limitations in functioning. The
Commissioner argues that the inclusion of the GAF score in the ALJ’s analysis would not
compel a particular conclusion because GAF scores measure both severity of symptoms and
functional level with the final score reflecting the worse of the two. [Dkt. 21 at 8]. That
argument misses the point. The ALJ must consider all of the relevant evidence. Herron, 19 F.3d
at 333. A GAF score of fifty is an indication that Bricker had either serious symptoms or serious
limitations in functioning. In either case, such evidence is directly relevant to an analysis of
whether Bricker is disabled. From the ALJ’s analysis, the Court cannot determine whether or
not the ALJ considered this relevant piece of evidence.

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In sum, the ALJ has based his findings on an incomplete assessment of the evidence. As
such, the ALJ has failed to build a logical bridge between the facts and his findings. Upon
remand, the ALJ should consider all of the relevant evidence.
B. Credibility Determinations
Next, Bricker challenges the ALJ’s credibility assessment. Because “[a]n ALJ is in the
best position to determine the credibility of witnesses, [the Court will] review that determination
deferentially.” Craft, 539 F.3d at 678. Accordingly, courts will generally not overturn an ALJ’s
credibility determination unless it is patently wrong. Castile v. Astrue, 617 F.3d 923, 929 (7th
Cir. 2010). However, the ALJ must support his credibility findings with substantial evidence
and must explain his decision in a way that allows a court to determine whether the ALJ reached
the decision in a rational manner, logically based on specific findings and the evidence.
McKinzey v. Astrue, 641 F.3d 884, 890 (7th Cir. 2011).
The ALJ found Bricker’s “statements concerning the intensity, persistence and limiting
effects of these symptoms [were] not credible to the extent they [were] inconsistent with the
above residual functional capacity.” [R. 14]. The ALJ failed to discuss which of Bricker’s
statements he found not credible and he failed to specify what weight he gave to Bricker’s
statements. See Martinez v. Astrue, 630 F.3d 693, 696-97 (7th Cir. 2011). Furthermore,
noticeably absent from the ALJ’s credibility determination is any discussion of Bricker’s
statements regarding her anxiety around others, which is well documented in the medical
records.
The ALJ failed to discuss Brown’s credibility entirely. Brown’s testimony, if believed,
offers a great deal of support for Bricker’s claims of depression and anxiety. Because of the
ALJ’s failure to make a credibility determination with regard to Brown’s statements, this Court

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has no way to know whether the ALJ properly considered them. For these reasons, the Court
finds that the ALJ has not explained his decision in a way that allows this Court to conclude that
he reached his credibility determinations in a rational manner, logically based on specific
findings and the evidence.
C. The ALJ’s Step Five Determination
Lastly, Bricker challenges the ALJ’s step five determination that Bricker could perform a
range of jobs that exists in significant numbers in the national economy. Bricker argues that the
ALJ relied solely on the Medical-Vocational Guidelines in which mental illness limitations are
not considered. The Grid directs a finding of “disabled” or “not disabled” based on common
combinations of characteristics, but the Grid does not account for nonexertional such as
Bricker’s depression and anxiety. Villano v. Astrue, 556 F.3d 558, 564 (7th Cir. 2009). In cases
“where a nonexertional limitation might substantially reduce a range of work an individual can
perform, the use of the grids would be inappropriate and the ALJ must consult a vocational
expert.” Zurawski v. Halter, 245 F.3d 881, 889 (7th Cir. 2001) (citing Luna v. Shalala, 22 F.3d
687, 691 (7th Cir. 1994)).
To make an accurate determination at step five, the ALJ must have properly assessed
Bricker’s RFC. An RFC must consider all of a claimant’s medically determinable impairments,
both physical and mental, even those not considered severe. Craft, 539 F.3d at 676. An ALJ
bases an RFC upon medical evidence in the record and other evidence such as the claimant’s
testimony or other witnesses’ testimony. Id. Here, the ALJ failed to properly consider all of the
evidence of Bricker’s mental impairments and what impact those impairments might have on
Bricker’s ability to work. As an example, the ALJ does not discuss Bricker’s diagnosed social
anxiety disorder or consider whether limiting Bricker’s contact with the public might be

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necessary. Furthermore, the ALJ did not properly consider the statements of Bricker and Brown.
Accordingly, upon remand, the ALJ should consider all of Bricker’s medically determinable
impairments in determining her RFC and if, at that time, Bricker’s nonexertional limitations
might significantly limit her range of work, the ALJ should consult a vocational expert.

V. Conclusion
For the above stated reasons, the Court REMANDS the case for further proceedings
consistent with this opinion.

Dated:

05/08/2012

Distribution List:

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

Thomas E. Kieper
UNITED STATES ATTORNEY'S OFFICE
[e-mail]
Patrick Harold Mulvany
[e-mail]

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