ENDSLEY v. ASTRUE

Filing 25

ENTRY ON JUDICIAL REVIEW: As set forth above, the decision of the Commissioner is REVERSED and REMANDED for further proceedings consistent with this Entry ***SEE ENTRY FOR ADDITIONAL INFORMATION***. Signed by Judge William T. Lawrence on 3/7/2013.(DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JAJA O. ENDSLEY,

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Plaintiff,
vs.
MICHAEL J. ASTRUE,
Defendant.

Cause No. 1:12-cv-333-WTL-DML

ENTRY ON JUDICIAL REVIEW
Plaintiff Jaja Endsley requests judicial review of the final decision of Defendant Michael J.
Astrue, Commissioner of the Social Security Administration (“Commissioner”), denying his
applications for Disability Insurance Benefits (“DIB”) and Supplemental Insurance Benefits
(“SSI”) under Titles II and XVI of the Social Security Act (the “Act”). The Court rules as follows.
I.

PROCEDURAL HISTORY

Endsley applied for SSI and DIB in March 2009, alleging that he had been disabled since
August 15, 2006, due to several prior back surgeries, spinal cord stimulator implant, high blood
pressure, and high cholesterol. His applications were denied initially on May 29, 2009, and on
reconsideration on July 20, 2009, after which he requested and was granted a hearing before an
Administrative Law Judge (“ALJ”). On December 14, 2010, Endsley, who was represented by
counsel, appeared for a hearing before ALJ Ronald T. Jordan. At the hearing, the ALJ heard
testimony from Endsley and vocational expert Ray Burger. Thereafter, on February 23, 2011, the
ALJ rendered his decision in which he concluded that Endsley was not disabled under the terms of
the Act. The Appeals Council denied Endsley’s request for review of the ALJ’s decision on
February 6, 2012. Endsley then filed this action for judicial review.

II.

MEDICAL HISTORY

Endsley has a history of back pain dating to 2001 when he suffered an injury at work. An
MRI taken in October 2001 revealed “a central broad-based disc herniation [at L5-S1 segment]
that contracts the S1 nerve root sheath but does not compress or dorsally displace them” and at
L4-5, “a small central broad-based disc herniation without significant stenosis or any signs of
neural compression.” The MRI also showed a “small bright signal intensity fluid component . . .
suggesting residua of hematoma or small ganglion cyst.” In March 2002, Endsley underwent
microdiscectomy surgery. A functional capacity evaluation dated December 11, 2002, suggested
Endsley was capable of working at a medium level of physical demand.
Endsley visited the emergency room for his back pain in May 2006, where his examination
results indicated “left-sided paraspinal muscle palpable tenderness over the lumbosacral back.”
At this time, Endsley complained of having suffered another work-related injury one month
earlier.
In August 2006, Endsley was involved in yet another work-related accident while working
as a forklift driver, which caused his allegedly disabling injuries. An MRI was performed in
September 2006 and Dr. Remley concluded that Endsley had degenerative disc disease at L5-S1
with interval development of small left-sided disc extrusion that abuts and mildly compresses the
left S1 nerve root, status post right hemilaminectomy and discectomy at L5-S1 with postoperative
hard disc osteophyte complex and epidural scarring, and moderate disc degeneration at L4-5. On
October 27, 2006, Dr. Langhorst performed a left S1 selective nerve root block.
In November 2006, Endsley underwent left microlumbar discectomy at L5-S1. It was
noted that “the patient tolerated the procedure without complications and was taken to the recovery

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room in stable condition.”
On January 4, 2007, Endsley met with Dr. Langhorst for the first time. On examination, Dr.
Langhorst noted Endsley’s ability to heel walk, toe walk and rise from a squat. Dr. Langhorst
prescribed Hydrocodone, Lyrica, and Zanaflex and ordered Endsley to return in four weeks.
On January 10, 2007, Endsley presented for a follow-up visit with Dr. Schwartz, at which
time Endsley complained of continued pain in his buttock and thigh as well as having trouble
sleeping. Dr. Schwartz prescribed Elavil to help with sleeping, leg pain, and depression and
ordered an MRI.
In late January 2007, Endsley met with Dr. Schwartz for a full study with sedation. Dr.
Schwartz concluded: “postoperative changes with right hemilaminotomy at L5-S1 and at L4-5,
conjoined proximal nerve root of both L5 and S1 and mild broad-based disc bulge remaining at
L5-S1 level, with continued contact of the S1 nerve root.”
On February 12, 2007, Endsley underwent a psychological evaluation, after which Dr.
Gregory Hale, a licensed clinical psychologist, identified Endsley as suffering “pain disorder
associated with psychological factors and a general medical condition.” Dr. Hale recommended
Endsley undergo a series of psychological consultations to help him learn to manage his pain.
Endsley presented for another follow-up visit with Dr. Schwartz on March 6, 2007, at
which time Endsley complained of leg pain. Dr. Schwartz indicated that an MRI showed “no
evidence of nerve compression” and that he was “at a loss for anything surgical.” Dr. Schwartz
recommended a visit with Dr. Jon Swofford for possible spinal cord stimulator placement. After
meeting with Dr. Swofford in March, a spinal cord stimulator was implanted on May 21, 2007.
Endsley underwent a functional capacity evaluation on August 27, 2007. In summary of his

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evaluation, the reviewer explained that Endsley displayed “variable effort” and “gave minimal
effort with static and dynamic lift testing,” while his pain questionnaires “indicated strong
tendencies toward inappropriate illness behavior.” Nonetheless, Endsley was assessed as falling in
the “light” physical demand level for lifting and “sedentary” physical demand level for carrying.
On September 5, 2007, Endsley underwent a follow-up functional capacity evaluation by
Dr. Langhorst. Dr. Langhorst prescribed the following restrictions for Endsley: no lifting from
floor to waist, lifting restrictions from waist up of 15 pounds or less, and occasional push/pull of up
to 45 pounds.
Additionally, in November 2007, Endsley underwent an evaluation at Total Spine Care.
Dr. Dreihorst examined Endsley and noted tenderness in the left hip and lower two midline lumbar
scars and tight gluteal muscles. Furthermore, Endsley’s range of motion was limited to forward
and back bending and he noted pain in the low back. Lastly, Endsley expressed back and left leg
pain when seated with straightened right leg. Dr. Dreihorst noted that Endsley was at maximum
medical improvement.
In May 2009, Endsley underwent a consultative examination under the direction of the
Social Security Administration. During the examination, which was performed by Dr. Rudolph,
Endsley demonstrated an assisted gait with cane, but did not flex his foot with gait when assisted or
unassisted. Moreover, Endsley did not attempt walking on heels or toes, squatting or standing.
Overall, Dr. Rudolph concluded Endsley had lower back pain, hypertension, and
hypercholesterolemia.
Also in May 2009, Dr. R. Bond completed an RFC assessment indicating that Endsley had
some exertional limitations; specifically, Endsley should not occasionally lift more than twenty

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pounds, frequently lift no more than ten pounds and stand or walk at least two hours in an
eight-hour work day and sit a total of six hours in an eight-hour work day. With regard to postural
limitations, Endsley could occasionally climb ramps or stairs, balance, stoop, kneel, crouch, and
crawl, but he should never climb ladders, ropes, or scaffolds. Dr. Bond found that Endsley was
“partially credible” but that there was no recent medical evidence to support the severe pain
alleged. Dr. Bond noted that Endsley showed decreased grip strength, but that was not consistent
with his back disorder, nor was it supported by other examinations.
On May 28, 2009, agency reviewer A. Johnson completed a case analysis and opined that
Endsley’s disorder equaled Listing 1.04C for spinal disorders, as Endsley had “severe mobility
limitations” and the medical record supported a long history of “back impairment.”
Primary care physician Dr. Chrystal Anderson completed a physical capacities evaluation
on November 29, 2010. Dr. Anderson indicated that Endsley had been diagnosed with chronic low
back pain and his prognosis was “fair.” She indicated that he should not engage in prolonged
standing, walking, or sitting greater than one to two hours. Accordingly, she limited him to sitting,
standing, and walking for one hour total at one time, sitting for four hours total during an
eight-hour workday, and standing and walking in combination for one hour total each day. Dr.
Anderson determined that Endsley could frequently lift and carry up to ten pounds and
occasionally lift and carry ten to twenty pounds, but that he should never lift or carry weight over
twenty pounds; he could use both hands for repetitive action, but he should not use his feet for
repetitive pushing and pulling of leg controls. Furthermore, Endsley was unable to squat, crawl,
climb, stoop, balance, kneel, and crouch, but could occasionally bend and frequently reach. Lastly,
Dr. Anderson indicated that Endsley should be totally restricted from unprotected heights and

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heavy machinery, and moderately restricted from driving automotive equipment.
At the time of his testimony at the hearing, Endsley was thirty-five years old and his most
recent past relevant work was as a forklift driver. He explained that he had settled his workers’
compensation claim, and as part of that settlement, he was going to pursue vocational
rehabilitation. Endsley had not yet taken any affirmative steps towards vocational rehabilitation,
but he was thinking about working from home. Endsley testified that his spine stimulator helped
reduce his pain. He reported that he tried to stay away from other people and he drove, although
not long distances. Endsley’s family members helped with household chores and shopping.
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. Weatherbee v. Astrue, 649 F.3d 565, 568-69 (7th Cir. 2011); 20 C.F.R. '
404.1520(b).1 The first step considers whether the applicant is engaged in substantial gainful
activity. The second step evaluates whether an alleged physical or mental impairment is severe,
medically determinable, and meets a durational requirement. The third step compares the

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For the sake of simplicity, this Entry contains citations to DIB sections only.
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impairment to a list of impairments that are considered conclusively disabling. If the impairment
meets or equals one of the listed impairments, then the applicant is considered disabled; if the
impairment does not meet or equal a listed impairment, then the evaluation continues. The fourth
step assesses an applicant’s residual functional capacity (“RFC”) and ability to engage in past
relevant work. If an applicant can engage in past relevant work, he is not disabled. The fifth step
assesses the applicant’s RFC, as well as his age, education, and work experience, to determine
whether the applicant can engage in other work. If the applicant can engage in other work, he is not
disabled.
On review, the ALJ’s findings of fact are conclusive and must be upheld by the 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 the 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 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). 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.

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IV.

THE ALJ’S DECISION

Applying the five-step analysis, the ALJ found that Endsley was not disabled from August
15, 2006, through the date of his decision on February 23, 2011. At step one of the analysis, the
ALJ found that Endsley had not engaged in substantial gainful activity (“SGA”) since August 15,
2006. At steps two and three of the analysis, the ALJ determined that Endsley suffered from a
combination of severe and non-severe impairments. Specifically, the ALJ found that Endsley had
the following non-severe impairments: high blood pressure, hyperlipidemia, diabetes mellitus,
depression, and anxiety. The ALJ concluded that Endsley had the severe impairments of a
disorder of the lumbar spine and obesity, but the ALJ determined that neither of these severe
impairments met or medically equaled a listed impairment. At step four, the ALJ concluded that
Endsley retained the residual functional capacity (“RFC”) to perform sedentary work with the
following exceptions: lift, carry, push, and pull twenty pounds occasionally and ten pounds
frequently, and stand/ walk two hours in an eight-hour day and sit six hours. Endsley must have
the opportunity to stand at his work station up to five minutes each hour at his discretion. He must
avoid postural activities such as bending, stooping, crouching, crawling, kneeling, and climbing,
but he can bend at the waist sufficiently to perform work at a bench, table, or desk. The ALJ
concluded that, given Endsley’s RFC, he was unable to perform any past relevant work as a
forklift driver and sales clerk. However, considering his age, education, work experience, and
RFC, the ALJ found that Endsley was capable of performing other jobs that exist in significant
numbers in the regional economy, including such representative occupations as cashier, office
clerk, or packer. Therefore, the ALJ determined at step five that Endsley was not disabled.

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V.
A.

DISCUSSION
Somatoform Disorder

The majority of Endsley’s objections to the ALJ’s decision implicate the ALJ’s alleged
failure to consider Endsley’s diagnosis of somatoform disorder, which failure is alleged to have
tainted the ALJ’s listing and credibility determinations.
“’Somatoform disorder’ refers to what used to be called ‘psychosomatic’ illness: one has
physical symptoms, but there is no physical cause.” Sims v. Barnhart, 442 F.3d 536, 537 (7th Cir.
2006). According to Endsley, the ALJ rejected Dr. Hale’s diagnosis of somatoform disorder and
substituted his own diagnosis of “pain disorder associated with psychological factors and a general
medical condition.” However, it is Dr. Hale, not the ALJ, who diagnosed Endsley with a “pain
disorder associated with psychological factors and a general medical condition.” Tr. at 296. The
ALJ therefore did not “substitute” his own diagnosis. Furthermore, while Dr. Hale opined that
“Endsley present[ed] with a clinical profile corresponding with patients exhibiting a somatoform
disorder; that is, he described an extreme focus on his physical complaints,” and “showed evidence
of somatization,” the doctor ultimately concluded that “the psychological disorder identified (i.e.,
Pain Disorder Associated with Psychological Factors and a General Medical Condition) is
understood to be causally-related to the August 2006 work-related accident.” Dr. Hale clarified the
aspect of somatoform disorder he saw – an extreme focus on his physical complaints – but
specifically attributed Endsley’s pain to a known cause. The ALJ therefore did not err in his
analysis of Dr. Hale’s report. As the ALJ did not err in this way, it follows that his alleged error did
not taint his listing and credibility determinations, as described below.

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1.

Somatoform Disorder Listing

With respect to the listing determination, Dr. Hale’s report was by itself insufficient to
trigger an analysis of the somatoform disorder listing. Furthermore, there is no other suggestion
anywhere in the record that Endsley might meet or medically equal this listing. There was thus no
medical opinion that Endsley suffered from somatoform disorder, and the ALJ thus did not err by
not citing the listing and conducting the analysis, nor did he err by failing to call a medical expert
to analyze Endsley’s impairments under this listing.
2.

Credibility Determination

Endsley argues that the ALJ’s credibility determination is erroneous because the ALJ
failed to make findings on the second factor required to be considered when rejecting evidence
regarding a claimant’s subjective symptoms pursuant to SSR 96–7p.
The specific error alleged here is that the ALJ failed to consider Factor 2 – “the location,
duration, frequency, and intensity of the individual’s pain or other symptoms” – when the ALJ
overlooked Dr. Hale’s “diagnosis” of somatoform disorder and its relationship with Endsley’s
pain, and instead “substituted” his own diagnosis. However, given that there was no diagnosis of
somatoform disorder, nor a “substitution” by the ALJ, it was not improper for the ALJ to leave out
an analysis of this “diagnosis” under SSR 96-7p, factor 2.2
B.

Mental Impairments

Endsley contends the ALJ erred in his analysis of Endsley’s mental impairments when he
“ignored Dr. Hale’s findings” regarding his functioning. According to Endsley, Dr. Hale’s report
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In his reply, Endsley takes new aim at the ALJ’s use of impermissible boilerplate. While
it is true that the ALJ repeats the disfavored boilerplate language in his analysis of credibility, the
ALJ goes on to complete a thorough and sound analysis of the evidence.
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“proved clearly” that Endsley had “marked impairment” in daily functioning and “marked
impairment” in social functioning. On close review, the Court is unable to say whether Dr. Hale’s
report “clearly proves” that Endsley has “marked” limitations in these areas; however, it is clear
that the ALJ did not fully appreciate the limitations outlined in Dr. Hale’s report. Specifically, the
ALJ found that Endsley had “no limitation” in areas of daily living, yet Dr. Hale noted that
Endsley’s grandmother cooked for him, his mother transported him to appointments, and his
brother or fiancé helped him wash his legs or feet. Endsley also reported difficulty sleeping.
Likewise, with respect to social functioning, the ALJ found that Endsley had “no limitation,” but
Dr. Hale noted that Endsley spent time watching movies or playing video games and was
“sensitive to the reactions of others.” Endsley also testified at the hearing that he tried to avoid
others. The ALJ’s finding that Endsley had “no limitation” in these areas is therefore not supported
by substantial evidence of record and must be reversed.3
C.

Spinal Disorder

According to Endsley, the ALJ also erred when he concluded that Endsley’s spinal
ailments did not meet or equal Listing 1.04. The ALJ determined that there was no “supporting
evidence of nerve root compression, spinal arachnoiditis, or lumbar spinal stenosis resulting in
pseudoclaudication with the specific criteria in accordance with the listing.” Endsley points out,
however, that state agency reviewer A. Johnson found that Endsley’s spinal impairments equaled
Listing 1.04C and the ALJ did not address this opinion. According to the Commissioner, this
reviewer is not a physician and therefore her opinion carries little weight. As an initial matter, the

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However, the Court does not agree with counsel’s exaggeration that Endsley was “almost
totally dysfunctional” and therefore was markedly limited in concentration, persistence, and pace.
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Commissioner’s response is problematic because it engages in the analysis that the ALJ should
have performed, but did not. However, even more problematic is an ambiguity in the record:
Reviewing physician Dr. J. Sands affirmed the “assessment of 5/28/2009;” however, both
Johnson’s finding that Endsley met Listing 1.04C and Dr. Bond’s RFC assessment, indicating an
ability to work, are dated 5/28/2009. It appears that the state agency credited Dr. Bond’s
assessment when it denied Endsley’s claim. Tr. at 47. However, regardless of whether Dr. Sands
affirmed Dr. Bond or Johnson, a more thorough analysis of Endsley’s claim under 1.04C is
warranted by the record.
Furthermore, Endsley points to two medical records – one from September 2006 and one
from January 2007 – that he argues indicate nerve root compression. The Commissioner attempts
to distinguish these records on the ground that they indicate mild nerve root impingement as
opposed to compression. Likewise, the Commissioner engages in an analysis of Endsley’s medical
records with regard to spinal stenosis. But it is the ALJ who should have conducted this analysis in
rejecting the Listing, not the Commissioner now that the case is on appeal.
In sum, the ALJ failed to build an accurate and logical bridge that minimally articulated a
justification for rejecting the spinal disorder listing. This is error requiring reversal.
D.

Residual Functional Capacity

Finally, Endsley argues that the ALJ erred when he determined that Endsley was not
disabled because he could perform some jobs. The source of this error, Endsley argues, is omitting
from the RFC limitations due to Endsley’s “quite severe chronic pain, as described in detail by . . .
Dr. Anderson.” Endsley contends that he “would not be able to sustain full time work and thus
could not sustain any competitive employment.”

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However, a comparison of Dr. Anderson’s RFC to the ALJ’s reveals but a few differences;
the ALJ adopts all of Dr. Anderson’s lifting and carrying restrictions, as well as her postural
limitations. The only differences are the amount of time Endsley can sit during a work day – Dr.
Anderson limits him to four hours, the ALJ limits him to six – and the amount of time Endsley can
stand and walk during a work day – Dr. Anderson prescribes one hour, while the ALJ limits
Endsley to two hours. The ALJ rejected Dr. Anderson’s figures on the ground that her opinion was
not supported by her own medical records and she therefore “apparently relied quite heavily on the
subjective report of symptoms and limitations provided by [Endsley].” In rejecting these
subjective reports, the ALJ found that there existed “good reasons for questioning the reliability of
the claimant’s subjective complaints.” As the Court has found no error in the ALJ’s analysis of
Endsley’s credibility, it finds no error in the ALJ’s rejection of these portions of Dr. Anderson’s
RFC here. The ALJ therefore did not err when he adopted the figures of state agency reviewer Dr.
Bond – that Endsley could sit for six hours and stand/walk for two hours – in lieu of Dr. Anderson,
and his RFC analysis is supported by substantial evidence.
VI.

CONCLUSION

As set forth above, the decision of the Commissioner is REVERSED and REMANDED
for further proceedings consistent with this Entry.
SO ORDERED:

03/07/2013
_______________________________
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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