HIATT v. ASTRUE

Filing 25

ENTRY - The ALJ's step-three finding that Ms. Hiatt's impairments or combination of impairments do not meet or medically equal the criteria of Listing 1.04C is not supported by substantial evidence and is inadequately articulated. In addi tion, the ALJ's discounting of Dr. Chua's treating opinion that Ms. Hiatt is disabled is not supported by substantial evidence. Ms. Hiatt's claim for benefits will be remanded to the Commissioner for reevaluation of Listing 1.04C satisfaction and Dr. Chau's opinion that Ms. Hiatt is disabled. Signed by Magistrate Judge Denise K. LaRue on 3/29/2013. (JD)

UNITED STATES DISTRICT COURT
for the SOUTHERN DISTRICT OF INDIANA,
INDIANAPOLIS DIVISION
LAURALEE SHANNON HIATT,

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)
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) CAUSE NO. 1:11-cv-1282-DKL-RLY
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Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

ENTRY
Plaintiff Lauralee Hiatt applied for disability benefits under the Social Security Act
in July 2008, alleging that she became disabled in January 2006 due to several physical and
mental conditions. The Commissioner1 denied her application and Ms. Hiatt brought this
action for judicial review.

Judicial review of the Commissioner’s factual findings is deferential: courts must
affirm if her findings are supported by substantial evidence in the record. 42 U.S.C. §
405(g); Skarbek v. Barnhart, 390 F.3d 500, 503 (7th Cir. 2004); Gudgel v. Barnhart, 345 F.3d 467,
470 (7th Cir. 2003).

Substantial evidence is more than a scintilla, but less than a

preponderance, of the evidence. Wood v. Thompson, 246 F.3d 1026, 1029 (7th Cir. 2001). If

Carolyn W. Colvin became the Acting Commissioner of Social Security on
February 14, 2013, while this Cause was pending. See
http://www.socialsecurity.gov/pressoffice/factsheets/colvin.htm. Pursuant to Fed. R.
Civ. P. 25(d), Ms. Colvin is substituted for the former Commissioner, Michael J. Astrue.
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the evidence is sufficient for a reasonable person to conclude that it adequately supports
the Commissioner’s decision, then it is substantial evidence. Richardson v. Perales, 402 U.S.
389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Carradine v. Barnhart, 360 F.3d 751, 758 (7th
Cir. 2004). This limited scope of judicial review derives from the principle that Congress
has designated the Commissioner, not the courts, to make disability determinations:
In reviewing the decision of the ALJ [administrative law judge], we cannot
engage in our own analysis of whether [the claimant] is severely impaired as
defined by the SSA regulations. Nor may we reweigh evidence, resolve
conflicts in the record, decide questions of credibility, or, in general,
substitute our own judgment for that of the Commissioner. Our task is
limited to determining whether the ALJ’s factual findings are supported by
substantial evidence.
Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004). Carradine, 360 F.3d at 758. While
review of the Commissioner’s factual findings is deferential, review of her legal
conclusions is de novo. Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010).

The Social Security Act defines disability 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 has lasted or can be expected to last
for a continuous period of not less than 12 months”. 42 U.S.C. §§ 416(i)(1) and 423(d)(1)(A).
A person will be determined to be disabled only if his impairments “are of such severity
that he is not only unable to do her previous work but cannot, considering his age,
education, and work experience, engage in any other kind of substantial gainful work
which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). The combined effect of

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all of an applicant’s impairments shall be considered throughout the disability
determination process. 42 USC § 423(d)(2)(B).

The Social Security Administration (“SSA”) has implemented these statutory
standards in part by prescribing a “five-step sequential evaluation process” for
determining disability. 20 C.F.R. § 404.1520. If disability status can be determined at any
step in the sequence, an application will not be reviewed further. Id. At the first step, if the
applicant is currently engaged in substantial gainful activity, then she is not disabled. At
the second step, if the applicant’s impairments are not severe, then she is not disabled. A
severe impairment is one that “significantly limits [a claimant’s] physical or mental ability
to do basic work activities.” 20 C.F.R. § 404.1520(c). Third, if the applicant’s impairments,
either singly or in combination, meet or medically equal the criteria of any of the conditions
included in the Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1, then the
applicant is deemed disabled. The Listing of Impairments are medical conditions defined
by criteria that the SSA has pre-determined are disabling. 20 C.F.R. § 404.1525. If the
applicant’s impairments do not satisfy a Listing, then her residual functional capacity
(“RFC”) will be determined for the purposes of the next two steps. RFC is an applicant’s
ability to do work on a regular and continuing basis despite his impairment-related
physical and mental limitations and is categorized as sedentary, light, medium, or heavy.
20 C.F.R. § 404.1545. At the fourth step, if the applicant has the RFC to perform his past
relevant work, then she is not disabled. Fifth, considering the applicant’s age, work

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experience, and education (which are not considered at step four), and her RFC, she will
not be determined to be disabled if she can perform any other work that exists in significant
numbers in the national economy.

The burden rests on the applicant to prove satisfaction of steps one through four.
The burden then shifts to the Commissioner at step five to establish that there are jobs that
the applicant can perform in the national economy. Young v. Barnhart, 362 F.3d 995, 1000
(7th Cir. 2004). If an applicant has only exertional limitations that allow her to perform the
full range of work at her assigned RFC level, then the Medical-Vocational Guidelines, 20
C.F.R. Part 404, Subpart P, Appendix 2 (the “grids”), may be used at step five to arrive at
a disability determination. The grids are tables that correlate an applicant’s age, work
experience, education, and RFC with predetermined findings of disabled or not-disabled.
20 C.F.R. §§ 404.1569 and 1569a. If an applicant has non-exertional limitations or exertional
limitations that limit the full range of employment opportunities at her assigned RFC level,
then the grids may not be used to determine disability at that level; a vocational expert
must testify regarding the numbers of jobs existing in the economy for a person with the
applicant’s particular vocational and medical characteristics. Id.; Lee v. Sullivan, 988 F.2d
789, 793 (7th Cir. 1993). The grids result, however, may still be used as an advisory
guideline in such cases. 20 C.F.R. § 404.1569.

An application for benefits, together with any evidence submitted by the applicant
and obtained by the agency, undergoes initial review by a state-agency disability examiner
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and a physician or other medical specialist. If the application is denied, the applicant may
request reconsideration review, which is conducted by different disability and medical
experts. If denied again, the applicant may request a hearing before an administrative law
judge (“ALJ”).2 An applicant who is dissatisfied with the decision of the ALJ may request
the SSA’s Appeals Council to review the decision. If the Appeals Council either affirms or
declines to review the decision, then the applicant may file an action in district court for
judicial review. 42 U.S.C. § 405(g). If the Appeals Council declines to review a decision,
then the decision of the ALJ becomes the final decision of the Commissioner for judicial
review.

Ms. Hiatt filed her application in July 2008.

It was denied on initial and

reconsideration reviews in October 2008 and April 2009, respectively. A hearing before an
ALJ, via video teleconference, was held in June 2010 and the ALJ issued her decision
denying Ms. Hiatt’s application in July 2010. In July 2011, the Appeals Council denied Ms.
Hiatt’s request for a review of the ALJ’s decision, making the ALJ’s decision the final
decision of the Commissioner on Ms. Hiatt’s claim for benefits.

At step one, the ALJ found that Ms. Hiatt had not engaged in substantial gainful

Initial and reconsideration reviews in Indiana are performed by an agency of
state government (the Disability Determination Bureau, a division of the Indiana Family
and Social Services Administration) under arrangement with the SSA. 20 C.F.R. Part
404, Subpart Q (§ 404.1601, et seq.). Hearings before ALJs and subsequent proceedings
are conducted by personnel of the federal SSA.
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activity since July 3, 2008, the date that she applied for benefits.3

At step two, the ALJ determined that Ms. Hiatt had the following severe
impairments: (1) generalized anxiety disorder; (2) major depression; (3) borderline
personality disorder; (4) mild osteoarthritis in lumbar spine; (5) bulging disc in lumbar
spine, post laminectomy with screw migration, but no nerve compression; (6) cervical spine
degenerative disc disease, with minimal disc protrusion; (7) osteoarthritis in right hip; and
(8) asthma. The ALJ found that the following impairments or conditions that Ms. Hiatt had
were not severe: endometriosis, chronic laryngitis, chronic sinusitis, episodes of acute
bronchitis. The ALJ noted that Ms. Hiatt had been diagnosed with chronic obstructive
pulmonary disease, but it is unclear whether the ALJ found that this impairment did not
exist or was not severe. The ALJ noted that Ms. Hiatt has a history of substance
use/misuse, but she found that there was not a substance-abuse disorder and that Ms.
Hiatt’s use/misuse had no more than a minimal effect on her ability to perform workrelated functions. Finally, the ALJ found that Ms. Hiatt’s alleged sleep apnea and
osteoarthritis in the knees were not impairments.

At step three, the ALJ found that Ms. Hiatt did not have an impairment or
combination of impairments that met or medically equaled any of the Listing of
Impairments. She stated that she assessed Ms. Hiatt’s impairments against Listings 1.02
It is not apparent why the ALJ determined Ms. Hiatt’s disability as of her
application date and not her alleged onset-of-disability date, January 1, 2006, or any
date in between. But Ms. Hiatt did not raise an issue regarding this point.
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(major dysfunction of joint(s)), 1.04 (disorders of the spine), 7.00 (hematological disorders
(unspecified)), 3.03 (asthma), 12.04 (affective disorders), 12.06 (anxiety-related disorders),
and 12.08 (personality disorders).

For steps four and five, the ALJ determined Ms. Hiatt’s residual functional capacity.
She found that Ms. Hiatt had the capacity for sedentary work with some exertional
restrictions. Considering Ms. Hiatt’s pain and mental impairments, The ALJ limited her
to simple, routine tasks and occasional interaction with co-workers and the general public.

At step four, the ALJ found that Ms. Hiatt had no past relevant work. At step five,
considering Ms. Hiatt’s RFC, age (34 years), and limited education (work
experience/transferability of skills was inapplicable), and the testimony of a vocational
expert at the hearing, the ALJ found that there were jobs existing in significant numbers the
national economy that Ms. Hiatt could perform. Therefore, the ALJ determined that Ms.
Hiatt was not disabled.

Ms. Hiatt asserts two challenges to the ALJ’s decision.
Listing 1.04C
Ms. Hiatt argues that her impairments meet the criteria of Listing 1.04C. The criteria
for that Listing are:
1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal

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arachnoiditis, spinal stenosis,4 osteoarthritis, degenerative disc disease, facet
arthritis, vertebral fracture), resulting in compromise5 of a nerve root
(including the cauda equina) or the spinal cord. With:
*
*
*
C. Lumbar spinal stenosis resulting in pseudoclaudication,6
established by findings on appropriate medically acceptable imaging,
manifested by chronic nonradicular7 pain and weakness, and resulting in
inability to ambulate effectively, as defined in 1.00B2b.
Ms. Hiatt points to evidence in the record showing diagnoses of lumbar spinal stenosis,
(e.g., R. 309 (spinal canal stenosis at L3-4, L4-5, and L5-S1), 424 (lumbar stenosis), 428
(same), 561 (same), 562 (severe foraminal stenosis at L4-5)), compromise of a nerve root,
(e.g., R. 309 (impingement of the dural sac at L3-4, L4-5, and L5-S1; partial obliteration of
the L4 nerve root sheath at L3-4), 298 (root lesion at L4, L5)), and pseudoclaudication (e.g.,

“A narrowing of the spinal canal (the long channel within the bony structure of
the spine), usually as a result of hypertrophic (pertaining to abnormal enlargement)
degenerative changes of the bony structure.” J. E. Schmidt, Attorneys’ Dictionary of
Medicine and Word Finder at S-243 (Rel. 46, Oct. 2012) (“Attys’ Dict. Med.”).
4

“To debilitate; to suppress the normal function of; to render inoperational; to
put a burden on; to weaken.” Attys’ Dict. Med. at C-390.
5

“A disorder marked by symptoms similar to those of intermittent claudication
(which see) but actually resulting from compression of the cauda equina (which see) by
a herniated intervertebral disk (or some other disorder in the region).” Attys’ Dict. Med.
at P-494.1. Claudication is “[a] condition marked by cramplike pains in the legs,
especially in the calf muscles, brought on by walking and relieved by rest. It is due to a
deficiency in the blood supply to the extremities, on the basis of arteriosclerosis
(hardening of the arteries) or abnormal spasm of the blood vessels.” Id. at I-140. The
cauda equina is “[a] bundle of nerve fibers originating from the lower part of the spinal
cord . . . and extending for some distance within the spinal canal, then emerging one by
one through the openings between adjacent vertebrae to form the spinal nerves.” Id. at
C-116.
6

Radicular means “[p]ertaining to, or involving, a root, especially the root of a
spinal nerve . . . .” Attys’ Dict. Med. at R-9.
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R. 424 (spinal claudication), 425 (same), 428 (lumbar stenosis with claudication), 561
(lumbar radiculopathy with claudication)). Ms. Hiatt’s testimony and the medical records
are replete with allegations, reports, and/or findings of nonradicular and radicular pain
in Ms. Hiatt’s lower back, hips, pelvis, legs, groin, joints, neck, and shoulders, with
resulting numbness in her fingers. (R. 39, 309, 328, 424, 425, 431, 432, 435, 437, 449, 450, 461,
561). The pain is described as dull, achy, and throbbing; chronic, persistent, and constant;
and unbearable and excruciating. (Id.) There is also evidence that could support a
resulting inability to ambulate effectively. (e.g., R. 433 (Ms. Hiatt reports that the pain is
so intense she can’t walk or move, she feels like she needs a walker, and she is still falling
down because her hips give out), 435 (medical-record note that Ms. Hiatt is ambulating
with an unidentified assistive device)).

The Commissioner argues that Ms. Hiatt has failed to show that Listing 1.04C has
been met. The only criterion that the Commissioner challenges is the inability to ambulate
effectively and she argues that the only evidence which Ms. Hiatt cites is her self-serving
comment at R. 433, which records her statement that she feels that she needs a walker. (As
noted above, there is at least one more medical-record note that Ms. Hiatt was ambulating
with an assistive device.) The Commissioner argues that there is no evidence that a walker
was prescribed and cites observations in the record that Ms. Hiatt had no significant
difficulty walking. (Defendant’s Brief at 7).

The problem with the Commissioner’s present reasons why Listing 1.04C is not
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satisfied is that they are the Commissioner’s reasons asserted for this litigation, not the ALJ’s
expressed reasons for his decision at the time. The ALJ’s step-three finding on Listings
satisfaction consists of the following:
I have assessed the claimant’s mild osteoarthritis in lumbar spine, bulging
disc in lumbar spine status post laminectomy with screw migration, cervical
spine degenerative disc disease with minimal disc protrusion and
osteoarthritis in right hip under § 1.02 and § 1.04 Musculoskeletal System, §
7.00 Hematological disorders for the claimant’s endometriosis and listing §
3.03 Asthma, Appendix 1. I have also assessed the claimant’s depression
with anxiety disorder under the criteria of listings § 12.04, Affective
Disorders, § 12.06 Anxiety-Related Disorders and § 12.08 Personality
disorders, Appendix 1. However, the medical evidence falls short of the
criteria of the section, and no medical source has mentioned findings
equivalent in severity to the criteria of any listed impairment, individually
or in combination.
(R. 13). There follows a discussion of only the severity criteria for the mental-impairments
Listings. The ALJ failed to articulate any analysis of the evidence relating to the nonmental Listings criteria; instead, he gave only boilerplate, conclusory statements. Ms. Hiatt
specifically asserted in her pre-hearing brief and at the hearing that she satisfied the criteria
for Listing 1.04. (R. 32, 54, 200). While she did not present a developed argument
specifically focused on the criteria of Listing 1.04C, there was sufficient evidence in the
record for the ALJ to have inquired further and, certainly, to have evaluated the criteria of
Listing 1.04C and minimally articulated her evaluation and conclusions. The ALJ did not
state that Ms. Hiatt had not attempted to show or argue satisfaction of Listing 1.04C;
instead, the ALJ stated that she assessed Ms. Hiatt’s impairments under the Listings and
found them wanting.

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It is by now well-established that the Commissioner cannot fill such gaps by ALJs
on judicial review. S.E.C. vs. Chenery Corp., 318 U.S. 80, 87-88 (1943); Roddy v. Astrue, 705
F.3d 631, 637 (7th Cir. 2013). It was the ALJ’s duty to minimally articulate the grounds of
his findings at step three. As it is, the Court has no decision to review on the issue of Ms.
Hiatt’s satisfaction of Listing 1.04C and the Court declines the Commissioner’s invitation
to evaluate and weigh the evidence in the first instance. Perhaps substantial evidence
would support a decision that Ms. Hiatt’s lumbar spinal stenosis does not result in her
inability to ambulate effectively, but that decision is for the ALJ, not the Court, to make and
explain.

The ALJ’s decision at step three regarding satisfaction of Listing 1.04C is not
supported by substantial evidence. The ALJ also committed legal error by not sufficiently
articulating her evaluation of the evidence against the criteria of Listing 1.04C and by not
explaining an accurate and logical relationship between the evidence and her ultimate
findings.
Dr. Chua’s opinion
Dr. Chua was Ms. Hiatt’s treating physician for three years and he wrote two
opinions declaring that Ms. Hiatt was permanently unable to work because of degenerative
disc disease in her lumbar spine, osteoarthritis in her hips and knees, and secondary
conditions of anxiety, depression, hypertension, and chronic obstructive pulmonary
disease.

(R. 419 (Verification of Disability/Development Disability form for Housing
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Authority of the City of Terre Haute, October 17, 2008), 737 (Statement of Medical
Condition for the Food Stamp and Temporary Assistance for Needy Families Programs,
April 9, 2010)). Ms. Hiatt argues that the ALJ failed to give Dr. Chua’s opinion the weight
that it was due as her treating physician.

The ALJ did not give Dr. Chua’s opinion controlling weight because she noted that
the ultimate question of disability is reserved to the Commissioner. However, she
accorded some credit to his opinion that Ms. Hiatt is able to sit, stand, and walk for only
short periods of time but cannot push, pull, or bend and she accommodated his opinion
by limiting Ms. Hiatt’s RFC to sedentary work, which is less than the light level of work
that the state-agency reviewers assigned. However, the ALJ wrote that she rejected Dr.
Chua’s opinion that Ms. Hiatt was completely disabled from any work based on her
activities of daily living: “However, I find that the claimant’s ability to cook, go grocery
shopping and care for her children suggests the claimant has the capacity to perform
within the assessed residual functional capacity [sedentary level] . . . .” (R. 18).

The Court of Appeals for the Seventh Circuit has repeatedly cautioned about using
a claimant’s daily activities as an indication — or suggestion — of the claimant’s ability to
perform work on a sustained basis:
Once again, although it is appropriate for an ALJ to consider a claimant’s
daily activities when evaluating their credibility, SSR 96–7p, at *3, this must
be done with care. We have repeatedly cautioned that a person’s ability to
perform daily activities, especially if that can be done only with significant
limitations, does not necessarily translate into an ability to work full-time.
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See, e.g., Bjornson, 671 F.3d at 647; Punzio v. Astrue, 630 F.3d 704, 712 (7th
Cir.2011); Gentle v. Barnhart, 430 F.3d 865, 867–68 (7th Cir.2005); Hawkins, 326
F.3d at 918.
Roddy, 705 F.3d at 639. There is one brief paragraph in the ALJ’s decision addressing Ms.
Hiatt’s activities:
In activities of daily living, the claimant has mild restriction. I concur with
the state medical consultant who determined the claimant has mild limitation
in this area, Exhibit 13F. The claimant is independent with her personal care,
she makes simple meals and does light housekeeping, Exhibit 4E.
(R. 13). Exhibit 13F to which the ALJ referred and on which she relied is a Psychiatric
Review Technique check-a-box form completed by state-agency psychologist B. Randal
Horton. (R. 405). The only content regarding activities of daily living is where Dr. Horton
checked the box for “mild” to rate the degree of Ms. Hiatt’s restriction in activities of daily
living, (R. 415), and at the end where he noted “Please see adjudicator r/c for additional
adls”, (R. 417). This is an insufficient foundation for the ALJ’s decision to not credit Dr.
Chua’s opinion. There is no function-by-function analysis by the ALJ, or cited by her, of
Ms. Hiatt’s activities of daily living and how those activities relate to Ms. Hiatt’s ability to
perform the functions of work on a sustained basis. Because the ALJ’s expressed basis for
discounting Dr. Chua’s treating opinion that Ms. Hiatt was incapable of sustained work
was this insufficient analysis of her activities of daily living, her decision is not supported
by substantial evidence.
Conclusion
The ALJ’s step-three finding that Ms. Hiatt’s impairments or combination of
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impairments do not meet or medically equal the criteria of Listing 1.04C is not supported
by substantial evidence and is inadequately articulated. In addition, the ALJ’s discounting
of Dr. Chua’s treating opinion that Ms. Hiatt is disabled is not supported by substantial
evidence. Ms. Hiatt’s claim for benefits will be remanded to the Commissioner for reevaluation of Listing 1.04C satisfaction and Dr. Chau’s opinion that Ms. Hiatt is disabled.

DONE this date: 03/29/2013

_______________________________
Denise K. LaRue
United States Magistrate Judge
Southern District of Indiana

Distribution to all ECF-registered counsel of record via e-mail.

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