HIATT v. ASTRUE

Filing 23

CLOSED REMANDED to Commissioner. ENTRY ON JUDICIAL REVIEW - The Court AFFIRMS in part and REMANDS in part the Commissioner's decision. The ALJ's RFC properly accounted for Mr. Hiatt's ataxia, therefore, the Court AFFIRMS the ALJ's decision in this regard. However, for the reasons stated, the Court REMANDS the Commissioner's decision for further proceedings consistent with this opinion. (See Entry.) Signed by Judge Tanya Walton Pratt on 3/18/2014.(RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
WILLIAM A. HIATT,
Plaintiff,
v.
CAROLYN W. COLVIN,
Defendant.

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) Case No. 1:12-cv-01438-TWP-TAB
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ENTRY ON JUDICIAL REVIEW
Plaintiff William Allen Hiatt (“Mr. Hiatt”) requests judicial review of the final decision
of the Commissioner of the Social Security Administrator (“the Commissioner”), denying his
application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”)
under Titles II and XVI of the Social Security Act (“the Act”). For the following reasons, the
Court AFFIRMS in part and REMANDS in part the Commissioner’s decision.

I.
A.

BACKGROUND

Procedural History
Mr. Hiatt filed his applications for DIB and SSI on February 19, 2009, alleging a

disability onset date of December 4, 2007. These claims were initially denied on May 22, 2009,
and upon reconsideration on July 13, 2009. Thereafter, Mr. Hiatt requested a hearing on July 22,
2009, and on April 19, 2010, a video hearing was held before Administrative Law Judge Gregory
M. Hamel (“the ALJ”). On September 16, 2010, the ALJ denied Mr. Hiatt’s applications, and on
October 14, 2011, the Appeals Council affirmed the ALJ’s denial, thus making it the final
decision of the Commissioner for the purposes of judicial review. 20 C.F.R § 416.1481. On

February 22, 2013, Mr. Hiatt filed this appeal requesting judicial review pursuant to 42 U.S.C. §
405(g) and 1383(c)(3).
B.

Factual and Medical Background
Mr. Hiatt was forty-six years old at the time of his hearing and suffered from several

physical impairments related to his spine including cervical disc protrusion, spondylosis, and
spinal stenosis. Mr. Hiatt has passed the eleventh grade, but never graduated from high school.
He has a good work record and previously worked as a semi-truck driver and a furniture mover.
In December 2007, while working as a commercial driver, Mr. Hiatt was hit in the side of
his head with the door of his semi-truck. He immediately began to experience dizziness and a
headache, but was able to drive himself to the hospital. At the hospital has was administered a
computerized tomography scan (a “CT scan”) that reported normal conditions. After being
dismissed from the hospital, however, Mr. Hiatt continued to experience dizziness, vomiting, and
reported “passing out” “at least every day” and “sometimes two or three times a day.”
Starting in February 2008, Mr. Hiatt began to see a myriad of specialists concerning
dizziness related to the accident. Throughout these visits many of the doctors confirmed Mr.
Hiatt’s subjective experience of dizziness and “syncopal episodes,” or fainting. In fact, Dr.
Vincent Ostrowski, physical therapist Sharon Drehs, Dr. Michael Coscia, Dr. Kristi George (“Dr.
George”), Dr. Duan Pierce (“Dr. Pierce”), Dr. Fernando R. Montoya, Dr. Guy F. Perry (“Dr.
Perry”), and Dr. Robert Gregori (“Dr. Gregori”) all reported finding symptoms of dizziness or
vertigo. These diagnoses were based mostly on subjective self-reporting on the part of Mr. Hiatt.
One doctor, Dr. Pierce, also found that Mr. Hiatt experienced ataxia1 causing severe dizziness
when he was asked to look to the far left or the far right. Based on these diagnoses, several

1

“Ataxia” is “failure of muscular
dictionary.thefreedictionary.com/ataxia

coordination;

2

irregularity

of

muscular

action.”

http://medical-

experts recommended that Mr. Hiatt should not continue driving or working at heights or with
machinery.
While most of the medical experts that examined Mr. Hiatt found symptoms of dizziness,
the cause and severity of these symptoms is unclear. Mr. Hiatt has undergone several CT scans
all of which returned normal results with no signs of physical impairments. He has also had
electroencephalogram (EEG), electrocardiogram (EKG), and magnetic resonance imaging (MRI)
tests performed which also reported normal results. Dr. George concluded that the dizziness Mr.
Hiatt experienced had no clear basis and appeared to be “nonphysiologic.” He diagnosed these
symptoms as “conversion reactions.” Dr. Perry also concluded that there was not a physiologic
basis for these symptoms.

Both Dr. George and Dr. Gregori concluded that Mr. Hiatt

demonstrated symptom magnification.
In addition, Dr. Gregori stated that Mr. Hiatt had elements of depression that warranted
further evaluation and treatment. Dr. Hill found that Mr. Hiatt had medically determinable
depression, but found that the depression was not significantly limiting. Dr. Pressner later
reviewed and affirmed Dr. Hill’s assessment.
C.

The ALJ’s Decision
The ALJ made the following findings as part of his decision. At step one, the ALJ

determined that Mr. Hiatt has not engaged in substantial gainful activity since December 4, 2007.
At step two, the ALJ found that Mr. Hiatt has the following severe impairments: post-concussive
syndrome and encephalopathy and disequilibrium, cervical protrusion, spondylosis, and spinal
stenosis. The ALJ found that Mr. Hiatt’s hearing loss did not cause more than a minimal degree
of limitation. At step three, the ALJ found that Mr. Hiatt does not have an impairment or
combination of impairments that meets or medically equals the severity of one of the listed

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impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ concluded that Mr. Hiatt
has the residual functional capacity to perform light work as defined in 20 C.F.R. 404.1567(b)
and 416.967(b) except he cannot drive or work in hazardous work environments, including
working around moving machinery and at heights. At step four, the ALJ concluded that Mr.
Hiatt is unable to perform any of his past relevant work. At step five, the ALJ found that Mr.
Hiatt is capable of performing jobs that exists in significant numbers in the national economy,
and therefore concluded Mr. Hiatt is not disabled.
II.

DISABILITY STANDARD OF REVIEW

Under the Act, a claimant is entitled to DIB or SSI if he establishes he has a disability.
Disability means the “inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment . . . which has lasted or can be expected
to last for a continuous period of not less than twelve months.” 42 U.S.C. §§ 416(i)(1);
423(d)(1)(A); 1382c(a)(3)(A). The 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 and 416.924. 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 claimant is currently engaged in substantial gainful activity, then
he is not disabled. At the second step, if the claimant’s impairments are not severe, then he 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) and 416.924(c). Third, if the
claimant’s impairments, either singly or in combination, meet or equal the criteria for any of the
conditions included in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the “Listing of Impairments”),
then the claimant is deemed disabled. The Listing of Impairments are medical conditions

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defined by criteria that the Social Security Administration has pre-determined are disabling. 20
C.F.R. § 404.1525. If the claimant’s impairments do not satisfy a Listing, then his residual
functional capacity (“RFC”) will be determined for the purposes of the next two steps. RFC is a
claimant’s ability to do work on a regular and continuing basis despite his impairment-related
physical and mental limitations. 20 C.F.R. §§ 404.1545 and 416.945. At the fourth step, if the
claimant has the RFC to perform his past relevant work, then he is not disabled.

Fifth,

considering the claimant’s age, work experience, and education (which are not considered at step
four), and his RFC, he will not be determined to be disabled if he can perform any other work in
the relevant economy.
A person will be determined to be disabled only if his impairments “are of such severity
that he is not only unable to do his 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) and 1382c(a)(3)(B). The combined effect of all
of a claimant’s impairments shall be considered throughout the disability determination process.
42 USC §§ 423(d)(2)(B) and 1382a(a)(3) (G). The burden of proof is on the claimant for the
first four steps; it then shifts to the Commissioner at the fifth step. Young v. Sec’y of Health &
Human Servs., 957 F.2d 386, 389 (7th Cir. 1992).
The Act, specifically 42 U.S.C. § 405(g), provides for judicial review of the
Commissioner’s denial of benefits. When the Appeals Council denies review of the ALJ’s
findings, the ALJ’s findings become the findings of the Commissioner. See Hendersen v. Apfel,
179 F.3d 507, 512 (7th Cir. 1999). This Court will sustain the ALJ’s findings if they are
supported by substantial evidence. 42 U.S.C. § 405(g); Nelson v. Apfel, 131 F.3d 1228, 1234
(7th Cir. 1999). In reviewing the ALJ’s findings, the Court may not decide the facts anew,

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reweigh the evidence, or substitute its judgment for that of the ALJ. Id. Although a scintilla of
evidence is insufficient to support the ALJ’s findings, the only evidence required is “such
evidence as a reasonable mind might accept as adequate to support a conclusion.” Diaz v.
Chater, 55 F.3d 300, 305 (7th Cir. 1995) (quoting Richardson v. Perales, 402 U.S. 389, 401
(1971)).
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). Further, “[a]n ALJ may not discuss only that evidence that favors his ultimate
conclusion, but must articulate, at some minimum level, his analysis of the evidence to allow the
[Court] to trace the path of his reasoning.” Diaz, 55 F.3d at 307. An ALJ’s articulation of his
analysis “aids [the Court] in [its] review of whether the ALJ’s decision was supported by
substantial evidence.” Scott v. Heckler, 768 F.2d 172, 179 (7th Cir. 1985).
The ALJ’s findings of fact, if supported by substantial evidence, are conclusive; however,
“[i]n coming to his decision . . . the ALJ must confront evidence that does not support his
conclusion and explain why it was rejected.” Kasarsky v. Barnhart, 335 F.3d 539, 543 (7th Cir.
2003). The ALJ’s decision must also demonstrate the path of reasoning, and the evidence must
lead logically to his conclusion. Rohan v. Chater, 98 F.3d 966, 971 (7th Cir. 1996). While the
ALJ need not discuss every piece of evidence in the record, he must provide at least a glimpse
into his reasoning through an adequate discussion, otherwise it will be remanded. See Briscoe ex
rel. Taylor v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005); Zurawski v. Halter, 245 F.3d 881,
888–89 (7th Cir. 2001).

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III.

DISCUSSION

In his appeal, Mr. Hiatt raises two issues. First, he argues that the ALJ did not properly
account for Dr. Pierce’s findings regarding Mr. Hiatt’s ataxia when creating the RFC. Second,
he argues that the ALJ did not follow the correct procedures when evaluating Mr. Hiatt’s
medically determinable mental impairments.

He argues that because of these errors the

Commissioner’s final decision should be reversed with a remand for rehearing.
A.

The ALJ’s RFC properly accounted for Mr. Hiatt’s ataxia.
One doctor who evaluated Mr. Hiatt, Dr. Pierce, found that when Mr. Hiatt was asked to

look to the “far left” or “far right” Mr. Hiatt experienced ataxia that made him very dizzy. Tr. at
461. While the ALJ’s RFC accounted for Mr. Hiatt’s dizziness by preventing him from working
at heights, with machinery, or driving, the RFC did not prevent Mr. Hiatt from doing work which
could require him to look to the far left or far right. Tr. at 44. Mr. Hiatt argues that this is a
reversible error. Dkt. 20 at 7.
While the ALJ did not specifically address the ataxia caused by far left or far right gaze
in his opinion, he was under no obligation to do so. An ALJ “need not provide a written
evaluation of every piece of evidence that is presented.” Steward v. Bowen, 858 F.2d 1295, 1299
(7th Cir. 1988). Requiring as much would be a heavy burden for any ALJ faced with expansive
records of medical evidence. Rather, “the ALJ does not need to meet the impossible burden of
mentioning every piece of evidence, but he or she has at the least the obligation to provide a
justification for rejecting considerable evidence that is both counter to the Secretary’s position
and is essentially uncontradicted.” Parks v. Sullivan, 766 F. Supp. 627, 635 (N.D. Ill 1991)
(emphasis in original) (internal citation omitted).

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If Dr. Pierce’s testimony was uncontradicted, the ALJ may have had an obligation to
address his finding of ataxia, but this is not the case. The ALJ gave “little weight” to Dr.
Pierce’s opinion because it was “out of proportion to the treatment notes of other doctors, the
medical record as a whole, and the claimant’s level of activity.” Tr. at 48. Specifically, Dr.
Pierce opined that Mr. Hiatt would have “difficulty working” because he frequently passed out
and experienced vomiting and dizziness when he did “any kind of physical activity.” Tr. at 461.
Dr. Hill, however, found that Mr. Hiatt had no severe impediments and would require no
restrictions on the activities of daily living. Tr. at 466, 476. This opinion was later supported by
Dr. Pressner. Tr. at 488. Dr. Perry also found that Mr. Hiatt was capable of lifting ten pounds on
a “constant basis.” Tr. at 535. Dr. Montoya found that Mr. Hiatt had no external limitations,
including no limitations concerning the length of time he could walk, push or pull, or carry
items. Tr. at 481. His findings were later affirmed by Dr. Lavallo. Tr. at 489. As the medical
evidence demonstrates, Dr. Pierce’s claim that Mr. Hiatt was unable to do any kind of physical
activity was directly contradicted. Because Dr. Pierce’s testimony was not uncontradicted, the
ALJ was under no obligation to specifically address all of the evidence contained in that opinion.
Parks, 766 F. Supp. at 635.
Mr. Hiatt’s argument rests entirely on three sentences of evidence taken from a medical
record of hundreds of pages. Mr. Hiatt attempts to isolate these few sentences and claim his case
should be reversed because they were not specifically addressed. This approach to judicial
review is simply untenable. The ALJ’s finding that Dr. Pierce’s diagnosis deserved little weight
because it was contradicted elsewhere in the record adequately addresses why the findings within
Dr. Pierce’s opinion were not addressed in the RFC. While Mr. Hiatt would have liked this
evidence to be addressed more specifically, the ALJ is only required to “minimally articulate his

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reasons for crediting or rejecting evidence of disability.” Scivally v. Sullivan, 966 F.2d 1070,
1076 (7th Cir. 1992).
Furthermore, the ALJ clearly articulated his reasons for not finding the testimony of Mr.
Hiatt credible. Specifically, Mr. Hiatt stated that he could only sit for a few minutes without
fidgeting, yet he was able to sit through a forty-five minute hearing without any problems. Tr. at
47. In addition, Mr. Hiatt receives no significant treatment for his issues, takes no prescribed
medication and several of his claimed physical impairments were contradicted in medical tests.
Id. Mr. Hiatt reported that he no longer smokes or drinks, but the medical record belies these
claims. Id. And perhaps most damaging to Mr. Hiatt’s credibility is his claims that he unable to
cook, shower, or walk through a grocery store without feeling dizzy and sometime passing out,
yet he continues to drive. Id. Mr. Hiatt’s claims of ataxia rely entirely on the testimonies of Mr.
Hiatt or Dr. Pierce, yet as the ALJ found, neither of these party have the credibility to sustain this
argument.
B.

The ALJ erred when he failed to adequately address Mr. Hiatt’s mental
impairments of depression and conversion reaction and this error was not harmless.
Mr. Hiatt’s second argument—that the ALJ failed to adequately address his mental

impairments—is more compelling. Indeed, the ALJ committed two errors when evaluating Mr.
Hiatt’s mental impairments, the first occurring at step two of the ALJ’s opinion. At step two of
his evaluation, the ALJ must determine whether the applicant has any severe “medically
determinable physical or mental impairments.” SSR 96-3p, 1996 WL 374181 at *1. As the
Social Security Rulings state, “once the requisite relationship between the medically
determinable impairment(s) and the alleged symptom(s) is established, the intensity, persistence,
and limiting effects of the symptom(s) must be considered along with the objective medical and
other evidence in determining whether the impairment or combination of impairments is severe.”
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Id. at *2. These rulings further state that a “determination that an individual’s impairment(s) is
not severe requires a careful evaluation of the medical findings that describe the impairment(s).”
Id.
Several doctors found that Mr. Hiatt suffers from depression and conversion reaction, yet
there is no evidence the ALJ evaluated these findings in his step two analysis. Dr. Perry, Dr.
Gregori, and Dr. Hill all diagnosed Mr. Hiatt with depression. Tr. at 530, 539, 469. In addition,
Dr. George and Dr. Perry found that Mr. Hiatt’s dizziness and vertigo were the result of a
“conversion reaction.” Tr. at 454, 534. This evidence is enough to establish that Mr. Hiatt
suffered from medically determinable impairments that required an evaluation at step two to
determine the severity. Yet the ALJ’s opinion at step two fails to mention either the conversion
reaction or depression. While the ALJ was under no obligation to consider these impairments
severe, the ALJ must at least offer some evidence that they were considered at all. The Court is
unable to determine the accuracy of the ALJ’s evaluation at step two because there is nothing on
the record suggesting that the ALJ even engaged in a “careful evaluation of the medical
findings” for non-severe impairments that is required in step two. SSR 96-3p at *2.
The Commissioner argues that this is a harmless error because the conversion reaction
and depression do not present any additional limitations on Mr. Hiatt because these conditions
were either not severe or were already accounted for in Mr. Hiatt’s RFC. Dkt. 19 at 17. These
conclusions, however, are post hoc conjecture on the part of the Commissioner. The record is
silent as to whether the ALJ felt these impairments were non-severe or accounted for in the
ALJ’s RFC. While several of the medical experts found these impairments to be non-severe, the
ultimate determination of whether an impairment is severe is specifically reserved for the ALJ.
SSR. 96-5p. The ALJ was free to find these impairments non-severe, but the ALJ “must build an

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accurate and logical bridge from the evidence to his conclusion.” Clifford v. Apfel, 227 F.3d
863, 872 (7th Cir. 2000). The ALJ failed to build a bridge of any kind that this Court could
examine for accuracy or logic and this is grounds for remand. Richards v. Astrue, 370 F. App’x
727, 731 (7th Cir. 2010).
The ALJ committed an additional error when he failed to apply the “special technique” to
Mr. Hiatt’s mental impairments of depression and conversion reaction. Under this special
technique, the ALJ must rate both the degree and severity of each of the applicant’s mental
impairments. 20 C.F.R. § 404.1520a. An ALJ is required to apply the special technique to all
medically determinable mental impairments. Id. The decision of the ALJ “must show the
significant history, including examination and laboratory findings, and the functional limitations
that were considered in reaching a conclusion about the severity of the mental impairment(s)”
and “include a specific finding as to the degree of limitation in each of the functional areas.” Id.
An application of the special technique is totally absent from the ALJ’s opinion.
The Commissioner is correct that failure to apply the special technique to mental
impairments may be harmless. In Pepper v. Colvin, 712 F.3d 351, 366 (7th Cir. 2013), the ALJ’s
failure to apply the special technique was not grounds for remand because at step two “ALJ
provided enough information to support the ‘not severe’ finding.” Thus, an “ALJ’s failure to
fully comply with the special technique may be harmless, so long as substantial evidence
supports the ALJ’s conclusion at step two that [the applicant’s] mental impairment was not
severe.” Lopez v. Colvin, 12 C 7025, 2014 WL 117477, at *8 (N.D. Ill. Jan. 10, 2014) (citing
Pepper, 712 F.3d at 366). In this case, however, there is not only a lack of substantial evidence
to support the ALJ’s conclusion at step two; there is no evidence of any kind supporting any
conclusion about Mr. Hiatt’s mental impairments at step two. Without this evidence, the ALJ is

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required to apply the special technique to all medically determinable mental impairments. 20
C.F.R. § 404.1520a. Failure to do so constitutes an error requiring remand. See Lane v. Astrue,
09 C 3277, 2012 WL 1623204 (N.D. Ill. May 8, 2012).
To be clear, the Court is not holding that Mr. Hiatt has severe mental impairments, or that
he is, in fact, disabled. Rather, this Court holds that the “ALJ gave short shrift to potential
limitations caused by [Mr. Hiatt’s] mental impairments, and that error requires a remand.” Craft
v. Astrue, 539 F.3d 668, 675 (7th Cir. 2008).

IV.

CONCLUSION

The ALJ’s RFC properly accounted for Mr. Hiatt’s ataxia, therefore, the Court
AFFIRMS the ALJ’s decision in this regard. However, for the reasons stated above, the Court
REMANDS the Commissioner’s decision for further proceedings consistent with this opinion.
SO ORDERED.
03/18/2014
Date: ______________

DISTRIBUTION:
J. Frank Hanley, II
J. FRANK HANLEY II, P.C.
[e-mail]

________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana

Thomas E. Kieper
UNITED STATES ATTORNEY’S OFFICE
[e-mail]

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