LAND v. ASTRUE
Filing
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ENTRY ON JUDICIAL REVIEW - The decision of the Commissioner is REVERSED and this cause is REMANDED to the Commissioner for further proceedings consistent with this Entry. Signed by Judge William T. Lawrence on 1/4/2013.(JD)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
KIMBERLY D. LAND,
Plaintiff,
vs.
MICHAEL J. ASTRUE Commissioner of
the Social Security Administration,
Defendant.
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Cause No. 1:12-cv-67-WTL-DKL
ENTRY ON JUDICIAL REVIEW
Plaintiff Kimberly D. Land requests judicial review of the final decision of Defendant
Michael J. Astrue, Commissioner of the Social Security Administration (the “Commissioner”),
denying her application for Supplemental Social Security Income (“SSI”) under Title XVI of the
Social Security Act (the “Act”). The Court now rules as follows.
I.
PROCEDURAL HISTORY
On December 29, 2008, Land filed an application for SSI alleging disability beginning
September 8, 2000. Land’s application was initially denied on May 14, 2009, and again upon
reconsideration on July 20, 2009. Thereafter, Land requested a hearing before an Administrative
Law Judge (“ALJ”). The hearing was held on October 18, 2010, via video conference before
ALJ John Murdock. Land and her counsel appeared in Indianapolis, Indiana and the ALJ
presided over the hearing from Falls Church, Virginia. During the hearing, Gail H. Franklin
testified as a vocational expert via telephone. On February 25, 2011, the ALJ issued a decision
denying Land’s application for benefits. The Appeals Council upheld the ALJ’s decision and
denied Land’s request for review on November 29, 2011. This timely action for judicial review
ensued.
II.
EVIDENCE OF RECORD
The relevant medical evidence of record follows.
Land suffers from chronic back pain, hypotension, hypertension, and a status post
metacarpal shaft fracture. At the hearing, Land testified that she underwent a rhizotmy on her
back and had pain blocks several years before the hearing.1 Additionally, in September 2007,
Land sustained a shaft fracture in her left hand after falling down. She underwent a closed
reduction and percutaneous pinning of the left fourth metacarpal on September 28, 2007. Land
had a second surgery on October 27, 2007 to remove the pins in her hand. Land received followup care from her doctor until May of 2008.
In January of 2008, Land complained of worsening back pain and she was treated in the
intensive care unit for five days. On February 13, 2008, Land had diagnoses of osteoarthritis,
depression, fibromyalgia, and hypertension. Thereafter, she was prescribed pain medication and
an antidepressant. Over the next eight months, Land described decreasing pain levels.
On March 19, 2009, state agency reviewing doctor Dr. Joelle Larsen completed a
Psychiatric Review Technique (“PRT”). Dr. Larsen determined that, although Land complained
of a “nervous breakdown” in 2006 or 2007, Land did not suffer from a medically determinable
impairment. There was also a notation on the PRT that Land “has not had a nervous breakdown
or heard voices since that one episode,” implying that Land previously heard voices at some
point in 2006 or 2007.
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During her consultative physical exam in May 2009, however, the doctor noted that
Land denied any history of surgeries.
2
In May 2009, Dr. Mahmoud Yassin Kassab performed a consultative physical
examination. At that time, Land complained of chronic back pain in the upper, middle, and lower
back that had worsened over the last ten years. She rated the pain as a 7 on a scale of 10 at the
exam. She further complained that the pain radiated down to her right knee and worsened with
lifting, bending, and twisting maneuvers. Land also alleged that she could only walk 50 feet and
go up only four steps at a time because of her pack pain. After the physical exam, Dr. Kassab
concluded that Land is able to grasp, lift, carry, manipulate objects in both hands and perform
repeated movements with her feet. He further opined that Land is able to bend over without
restriction, squat normally, and sit, stand, and walk normally without using any assistive device.
Dr. Kassab also stated that with an adjustment to her pain medication, Land would be able to
perform her activities of daily living without any problem.
In August 2010, Land again complained of worsening lumbar and thoracic back pain.
In December 2010, Land fell and hurt her back and neck and was admitted to the hospital
through the emergency room. At that time, her medications included Tolectin, Neurontin,
Nortiptyline, stool softeners, Baclofen, Phenergan, Cymbalta, and Norco. X-rays and CT scans
taken on December 23, 2010, indicated degenerative disc disease, disc space narrowing,
marginal spurring, and a subcortical cyst. Land was also experiencing involuntary jerking of her
arms and legs, however, upon examination, the jerking had subsided and no etiology could be
determined. While at the hospital, Land developed respiratory failure with hypoxia and
hypercapnia and was admitted for treatment of the respiratory issues.
In January 2011, while still hospitalized, Land reported a long history of fibromyalgia
and back and neck pain. She complained of being, more or less, incapacitated by the symptoms
over the previous year. She further stated that she could do very little physical activity, and that
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much of her down time was spent in bed. Thereafter, Land was referred to physical therapy. At
her initial assessment, the therapist noted that Land could tolerate only 5 minutes of functional
activities before requiring a rest break and 5 minutes of sitting upright on the end of the bed due
to her back pain. Land also complained that her back pain was a 10 on a scale of 10. Land further
reported that her husband did the cleaning, laundry, and cooking in their home and that she
required assistance with bathing.
In February 2011, Land underwent a sleep study. The study showed severe, complex
sleep apnea.
In March of 2011, Land complained of shortness of breath. Test results, however, were
normal.
III.
APPLICABLE STANDARD
Disability is defined as “the inability to engage in any substantial gainful activity by
reason of a medically determinable mental or physical impairment which can be expected to
result in death, or which has lasted or can be expected to last for a continuous period of at least
twelve months.” 42 U.S.C. § 423(d) (1)(A). In order to be found disabled, a claimant must
demonstrate that his physical or mental limitations prevent him from doing not only his previous
work, but any other kind of gainful employment that exists in the national economy, considering
his 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, he is
not disabled, despite his medical condition and other factors. 20 C.F.R. § 404.1520(b). 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), he is not disabled. 20 C.F.R. § 404.1520(c). At step
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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 twelvemonth duration requirement; if so, the claimant is deemed disabled. 20 C.F.R. § 404.1520(d). At
step four, if the claimant is able to perform his past relevant work, he is not disabled. 20 C.F.R.
§ 404.1520(f). At step five, if the claimant can perform any other work in the national economy,
he is not disabled. 20 C.F.R. § 404.1520(g).
On review, 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 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
At step one, the ALJ found that Land had not engaged in substantial gainful activity since
her application date of December 29, 2008. At step two, the ALJ concluded that Land had the
following severe impairments: chronic lower back pain, hypotension, hypertension, and a status
post metacarpal shaft fracture of her left hand. The ALJ further concluded that Land’s anxiety
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and depression were “non-medically determinable impairments.” At step three, the ALJ
determined that Land’s severe impairments did not meet or medically equal a listed impairment.
At step four, the ALJ concluded that Land had the residual functional capacity (“RFC”) to
perform light work with the following limitations: she had the ability to only occasionally climb
without ladders, ropes, scaffolds, she could only occasionally balance, stop, kneel, crouch, or
crawl, and she could not work in environments with vibrations, and height and machine hazards.
Given this RFC, and taking into account Land’s age, education, and work experience, the ALJ
determined that Land could perform jobs existing in significant numbers in the national
economy, those being a small production assembler, ticket taker, or laundry worker. The ALJ
further determined that even if Land were limited to a sedentary RFC, she could work as a table
worker, a change account clerk, or a telephone quotation clerk. Accordingly, the ALJ concluded
that Land was not disabled as defined by the Act from December 29, 2008, through the date of
his decision.
V.
DISCUSSION
Land advances several objections to the ALJ’s decision; each is addressed below.
A. Identification of Listings
Land argues that the ALJ failed to fully satisfy step three of the sequential evaluation
process. Specifically, Land maintains that the ALJ was required to, but did not, identify or
discuss the listings that Land did not meet.
Under the third step of the sequential evaluation process,
[A] claimant is eligible for benefits if she has an impairment that meets or equals
an impairment found in the Listing of Impairments. The listings specify the
criteria for impairments that are considered presumptively disabling. A claimant
may also demonstrate presumptive disability by showing that her impairment is
accomplished by symptoms that are equal in severity to those described in a
specific listing. In considering whether a claimant’s condition meets or equals a
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listed impairment, an ALJ must discuss the listing by name and offer more than a
perfunctory analysis of the listing.
Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004) (citations omitted). In Barnett, the
plaintiff sought disability insurance benefits due to her nonconvulsive epileptic seizures. After a
hearing, the AJL issued a decision denying her application. The ALJ, however, did not mention
by name the listing relevant to the plaintiff’s disability claim.2 Rather, in relation to step three,
the ALJ simply said that he did not believe the plaintiff’s testimony regarding the number of
seizures she suffered. As a result, the Seventh Circuit concluded that they could not “discern if
the ALJ ever considered whether [the plaintiff’s] impairment equals Listing 11.03.” Id. at 670.
Accordingly, the case was remanded to the Social Security Administration for further
proceedings.
In this case, the ALJ stated the following regarding whether Land satisfied step three of
the sequential evaluation process:
The claimant has “severe” impairments within the meaning of the Regulations,
but the impairments do not meet or medically equal any of the listed impairments.
The claimant does not allege that she has impairments of listing level severity, nor
has she met her burden of presenting medical evidence that supports such a
finding. I have reviewed the medical evidence of record in its entirety and [find]
that the claimant’s impairment does not meet or equal the level of severity set
forth in any of the listed impairments.
R. at 20. The ALJ did not identify the listed impairments he considered. More importantly, he
did not discuss in any meaningful way why Land’s impairments and symptoms fail to meet or
equal the relevant listings. Thus, the Court is unable to determine whether the ALJ considered
the various listings relevant to Land’s impairments (e.g., Listing 1.02 and/or Listing 1.04). As a
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Listing 11.03 applies to nonconvulsive epilepsy which is characterized by seizures that
occur “more frequently than once weekly” and with “alteration of awareness or loss of
consciousness and transient postictal manifestations of unconventional behavior or significant
interference with activity during the day.” Id. at 668-9 (quoting 20 C.F.R. Pt. 404, Subpt. P.,
App. 1 § 11.03).
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result, the ALJ’s analysis in relation to step three of the sequential evaluation process is
inadequate and warrants remand.
B. Articulation of S.S.R. 96-7p and S.S.R. 96-8p Factors
In addition to the foregoing, Land alleges that the ALJ failed to properly articulate his
application of the factors outlined in S.S.R. 96-7p and S.S.R. 96-8p, and, specifically, that the
ALJ did not properly evaluate and discuss Land’s subjective complaints of pain and immobility,
her medications and their side effects, and the effect of Land’s combined severe and non-severe
impairments.
With regard to Land’s subjective complaints, the ALJ must make a credibility
determination using factors outlined in S.S.R 96-7p. “In determining credibility an ALJ must
consider several factors, including the claimant’s daily activities, her level of pain or symptoms,
aggravating factors, medication, treatment, and limitations, see 20 C.F.R. § 404.1529(c); S.S.R.
96–7p, and justify the finding with specific reasons.” Villano v. Astrue, 556 F.3d 558, 562 (7th
Cir. 2009). “Furthermore, the ALJ may not discredit a claimant’s testimony about her pain and
limitations solely because there is no objective medical evidence supporting it.” Id. (citations
omitted).
In this case, the ALJ made the following determination regarding Land’s symptoms:
After careful consideration of the evidence, I find that the claimant’s medically
determinable impairments could reasonably be expected to cause the alleged
symptoms; however, the claimant’s statements concerning the intensity,
persistence and limiting effects of these symptoms are not credible to the extent
they are inconsistent with the . . . residual functional capacity.3
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As is so often the case, the ALJs credibility discussion begins with the finding that the
claimants statements concerning the intensity, persistence, and limiting effects of his symptoms
were not credible to the extent they are inconsistent with the judges assessment of his residual
functional capacity. The Seventh Circuit recently has criticized this language as meaningless
boilerplate seen frequently in decisions from ALJs, has criticized this template as unhelpful, and
has explained that it backwardly implies that the ability to work is determined first and is then
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R. at 20-21. The ALJ further concluded that “[t]he claimant has severe impairments. However,
the medical evidence does not support the severity of her allegations.” R. at 21.
First, there is no indication in the ALJ’s decision that he even considered Land’s
subjective complaints of consistent pain and immobility, much less that he considered the
complaints, rejected the complaints, and supported his rejection with specific reasons. Second,
Seventh Circuit case law is clear that “a lack of medical evidence alone is an insufficient reason
to discredit testimony.” Villano, 556 F.3d at 562. Accordingly, on remand, the ALJ should
consider Land’s testimony in determining the intensity, persistence, and limiting effects of her
symptoms, and if the ALJ discredits these statements he should specifically explain his reasons
for doing so. Additionally, on remand, the ALJ should review and discuss the effect Land’s
medications and their side effects, as well as Land’s combined impairments (both severe and
non-severe), have on her RFC.
C. Development of the Record
Lastly, Land argues that the ALJ failed to fully and fairly develop the record by failing to
send her for a psychological consultative examination.
The ALJ has a basic obligation “to develop a full and fair record” regardless of whether
a plaintiff is represented by counsel. Cannon v. Harris, 651 F.2d 513, 519 (7th Cir. 1981). With
regard to consultative exams, an “AJL is not required to order such examinations, but may do so
if an applicant’s medical evidence about a claimed impairment is insufficient.” Skinner v. Astrue,
478 F.3d 836 (7th Cir. 2007) (emphasis in original) (citing 20 C.F.R. § 416.912(f), 416.917); see
used to determine the claimants credibility. Shauger v. Astrue, 675 F.3d 690, 696 (7th Cir. 2012)
(quoting Bjornson v. Astrue, 671 F.3d 640, 645 (7th Cir. 2012) and citing Parker v. Astrue, 597
F.3d 920, 921-22 (7th Cir. 2010)). Credibility findings must have support in the record, and
hackneyed language seen universally in ALJ decisions adds nothing. Shauger, 675 F.3d at 694
(citing Punzio v. Astrue, 630 F.3d 704, 709 (7th Cir.2011) and Parker, 597 F.3d at 921-22).
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also Howell v. Sullivan, 950 F.2d 343, 348 (noting that “consultative examinations are not
required unless they are necessary for the ALJ to make a disability determination.”). An ALJ’s
failure to adequately develop the record, “has been consistently held to constitute good cause
sufficient to remand to the Secretary under 42 U.S.C. § 405(g) for taking of additional evidence.”
Cannon, 651 F.2d at 519. However, the “court gives deference to an ALJ’s decision about how
much evidence is sufficient to develop the record fully and what measures (including
consultative examinations) are needed in order to accomplish that goal.” Poyck v. Astrue, 414
Fed.Appx. 859, 861 (7th Cir. 2011). Notwithstanding the foregoing, a plaintiff “represented by
counsel is presumed to have made his best case before the ALJ.” Skinner v. Astrue, 478 F.3d
836, 842 (7th Cir .2007).
In the present matter, the ALJ made the following determination regarding Land’s mental
impairments:
I do find that the claimant’s anxiety and depression are non-medically
determinable impairments. Despite diagnoses and medication for them, there are
no psychiatric records in the file. In fact, the claimant was never sent for a
psychological consultative examination (CE) or sought treatment from a mental
health professional for these impairments. Therefore, due to a lack of evidence in
the file that would show that these are medically determinable impairments, I give
good weight to the DDS PRT . . . that reached this conclusion based on a review
of the record. Lastly, at the hearing, the claimant did not allege depression and
anxiety were limiting her ability to work. She alleged back pain and possibly high
blood pressure.
R. at 19. Although the PRT prepared by Dr. Larsen indicated that Land has no medically
determinable impairments, Land’s medical records reveal that she was diagnosed with
depression, that she was regularly prescribed Cymbalta and/or Prozac, and that she often
complained of being depressed and/or anxious. Additionally, it is true that Land “did not allege
depression and anxiety were limiting her ability to work” during the hearing; however, the ALJ
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failed to ask Land any questions regarding her psychological conditions during the question-andanswer driven hearing.
Based upon the current medical evidence, Land’s medical record warranted at least a
discussion of her depression and/or anxiety during the hearing. See e.g., Thompson v. Sullivan,
933 F.2d 581 (7th Cir. 1991) (holding that where pro se plaintiff had possible history of
alcoholism and other mental problems, “[a]t the very least, more thorough questioning of [the
plaintiff] would have been appropriate”). Here, Land regularly complained of depression and/or
anxiety and was often medicated for her mental ailments. Furthermore, Dr. Larsen noted that
Land had a “nervous breakdown” in 2006 or 2007 and implied that she previously heard voices.
Based on this evidence, at the very least, the ALJ should have asked Land about her mental
impairments and their effect on her ability to work. He should remedy this omission on remand.
VI.
CONCLUSION
For the foregoing reasons, the decision of the Commissioner is REVERSED and this
cause is REMANDED to the Commissioner for further proceedings consistent with this Entry.
SO ORDERED: 01/04/2013
_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana
Copies to all counsel of record via electronic communication.
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