PLUMP v. COLVIN

Filing 32

ENTRY-The decision will be REVERSED and her claim will be REMANDED to the Commissioner. Signed by Magistrate Judge Denise K. LaRue on 3/12/2015.(CBU)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF INDIANA,
INDIANAPOLIS DIVISION

SADIE M. PLUMP,
Plaintiff,
vs.

CAUSE NO. 1:13-cv-1446-DKL-SEB

CAROLYN W. COLVIN, Commissioner of
Social Security,
Defendant.

ENTRY
Plaintiff, Sadie M. Plump, applied for disability-insurance benefits and
supplemental-security-income benefits under the Social Security Act. Plaintiff claimed
that she became disabled beginning on November 23, 2009. Plaintiff filed this action for
judicial review of the Commissioner’s decision.
Standards of review and disability
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
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
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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 which has lasted or can be
expected to last for a continuous period of not less than 12 months . . . .” 42 U.S.C. §
423(d)(1)(A); 20 C.F.R. § 404.1505(a). 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. ' 416.905(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 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, regardless of whether such work exists in the
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immediate area in which he lives, or whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work.” 42 U.S.C. §§ 423(d)(2)(A) and
1382c(a)(3)(B). 20 C.F.R. §§ 404.1505, 404.1566, 416.905, and 416.966. The combined effect
of all of an applicant’s impairments shall be considered throughout the disability
determination process. 42 U.S.C. '§ 423(d)(2)(B) and 1382c(a)(3)(G). 20 C.F.R. §§ 404.1523
and 416.923.
The Social Security Administration has implemented these statutory standards in
part by prescribing a “five-step sequential evaluation process” for determining disability.
If disability status can be determined at any step in the sequence, an application will not
be reviewed further. At the first step, if the applicant is currently engaged in substantial
gainful activity, then he is not disabled. At the second step, if the applicant’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.” 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. Pt. 404,
Subpt. P, Appendix 1, Part A, then the applicant is deemed disabled. The Listing of
Impairments are medical conditions defined by criteria that the Social Security
Administration has pre-determined are disabling. 20 C.F.R. ' 404.1525. If the applicant’s
impairments do not satisfy the criteria of a listing, then her residual functional capacity
(“RFC”) will be determined for the purposes of the next two steps. RFC is an applicant’s
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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,
together with any additional non-exertional restrictions.

At the fourth step, if the

applicant has the RFC to perform his past relevant work, then he is not disabled. Fifth,
considering the applicant’s age, work experience, and education (which are not
considered at step four), and his RFC, the Commissioner determines if he can perform
any other work that exists in significant numbers in the national economy. 42 U.S.C. '
416.920(a)
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. If an applicant has non-exertional limitations or exertional
limitations that limit the full range of employment opportunities at his assigned work
level, then the grids may not be used to determine disability at that level. Instead, a
vocational expert must testify regarding the numbers of jobs existing in the economy for
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a person with the applicant’s particular vocational and medical characteristics. Lee v.
Sullivan, 988 F.2d 789, 793 (7th Cir. 1993). The grids result, however, may be used as an
advisory guideline in such cases.
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 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”).1 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.
Background
Plaintiff alleges that she is disabled as a result of a seizure disorder, carpal tunnel
syndrome, migraine headaches, chronic anemia, and asthma. Functionally, Plaintiff’s

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By agreement with the Social Security Administration, 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. 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 Social
Security Administration.

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carpal tunnel syndrome caused numbness, tingling, problems with her grip and ability
to hold onto things, and restricted her ability to perform certain daily activities. The
migraine headaches resulted in blurred vision, a sick feeling, and weakness. Her chronic
anemia made her tired during menses. She had no difficulty sitting, standing, or walking.
Plaintiff was forty-nine years old on the date of the Administrative Law Judge’s
(the “ALJ”) hearing. She completed high school, and has past relevant work experience
as a certified nursing assistant (classified as semi-skilled work at the medium exertional
level). After the alleged disability onset date of November 23, 2009, Plaintiff returned to
part-time work in March 2010. However, Plaintiff stopped part-time work in October
2010 because of her carpal tunnel syndrome. She then attempted to return to full-time
work in early 2011, but stopped after about six months. The ALJ found this work did not
amount to substantial gainful activity.
After being denied initially and upon reconsideration, Plaintiff requested and
received a hearing before an ALJ. Plaintiff was represented at the hearing by current
counsel. The ALJ issued her decision on May 24, 2012, denying Plaintiff’s claim. After
having her request for review denied by the Appeals Council, Plaintiff filed the present
suit to obtain judicial review of the Commissioner’s decision.
At step one of the evaluation process, the ALJ found that Plaintiff had not engaged
in substantial gainful activity since her alleged onset date of November 23, 2009. At step
two, the ALJ found that Plaintiff had the severe impairments of seizure disorder,
residuals of carpal tunnel syndrome and decompression of the ulnar nerve, and migraine
headaches. At step three, the ALJ evaluated Plaintiff’s seizure disorder and migraine
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headaches under Listing 11.02 (epilepsy—convulsive epilepsy (grand mal or
psychomotor)) and Listing 11.03 (epilepsy—nonconvulsive epilepsy (petit mal,
psychomotor, or focal)), and evaluated Plaintiff’s carpal tunnel syndrome and
decompression of ulnar nerve impairments under Listing 11.14 (peripheral
neuropathies). After evaluating each impairment under its corresponding Listing, the
ALJ found that Plaintiff’s impairments or combination of impairments did not meet or
medically equal any of the criteria.
Before step four, the ALJ was required to determine Plaintiff’s residual functional
capacity (“RFC”). She found that Plaintiff has the RFC to perform a range of light work,
with the following additional restrictions: can occasionally climb stairs and ramps, but
can never climb ladders, ropes, or scaffolds; frequently can balance, stoop, crouch, and
kneel, but never crawl; can perform frequent fine and gross manipulation with the right
upper extremity, and has no limitations with the left upper extremity; and is to avoid
concentrated exposure to extreme heat and cold, fumes, odors, and gases, and all
exposure to hazards such as heights and machinery.
At step four, the ALJ found Plaintiff was unable to perform any past relevant work
as a certified nursing assistant because the job involved semi-skilled work at the medium
exertional level. At step five, the ALJ relied on a vocational expert’s testimony regarding
the number of jobs existing for a person with the ALJ’s defined RFC and Plaintiff’s
vocational characteristics (age, education, and work experience) to conclude that a
significant number of jobs exists in the national economy that Plaintiff can perform. As
such, the ALJ found Plaintiff not disabled.
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Plaintiff requested review of the ALJ’s decision, and the Appeals Council denied
this request. The Appeals Council considered the additional evidence that Plaintiff
submitted, which included JWM Neurology Treatment Records (dated June 27, 2011),
Westside Clinic Records (dated from May 24, 2011 to March 28, 2012), and Indiana Hand
Center Records (dated from December 19, 2011 to May 7, 2012). Also, the Appeals
Council looked at records from St. Vincent’s Hospital from July 2, 2012 and Wishard
Memorial Hospital from June 5, 2012 through July 11, 2012. The Appeals Council
concluded that the new evidence submitted by Plaintiff did not provide a basis for
overturning the ALJ’s decision, and that the hospital records from St. Vincent’s and
Wishard did not affect the ALJ’s decisions because the records addressed a later time
period. Thus, the Appeals Council denied Plaintiff’s request for review. Therefore, the
Court reviews the ALJ’s decision as the final decision and rationale of the Commissioner
on Plaintiff’s claim.
Discussion
Plaintiff contends that the ALJ committed several errors warranting reversal of the
decision.
1. Carpal Tunnel and Manipulation Limitations.
Plaintiff argues the ALJ erred by not finding her disabled with respect to her carpal
tunnel syndrome.

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a. Future Time Period.
The ALJ considered the success of Plaintiff’s first carpal tunnel surgery in reaching
her conclusion that Plaintiff was not disabled. The first surgery was successful, and
Plaintiff was released to work with no restrictions within a month of the surgery.
Plaintiff argues that the ALJ “impermissibly played doctor” in determining that
her carpal tunnel syndrome would be resolved after the second surgery. Plaintiff argues
the ALJ improperly concluded that, because no opinion of a treating medical source
existed regarding her restriction following the second surgery, there was no basis for the
ALJ to not restrict the use of her right arm. Plaintiff further argues that the ALJ should
have contacted the surgeon to obtain his opinion regarding her restrictions. However,
Plaintiff carries the burden of proving that the second surgery would not improve her
carpal tunnel syndrome within one year. See Weatherbee v. Astrue, 649 F.3d 565, 569 (7th
Cir. 2011) (noting that the claimant has the burden of proof in the first four steps of the
analysis, which includes the durational requirement). The duration and recovery time
issue was addressed at the hearing, so Plaintiff knew the importance of the treating
medical source opinion. The ALJ left the record open for twenty days to allow Plaintiff
to submit a medical-source statement from her hand surgeon about her second carpal
tunnel surgery, specifically any limitations that the surgeon prescribed at the follow-up
appointment. The ALJ offered to grant even more time beyond the original twenty days
if Plaintiff so requested. Plaintiff submitted additional medical records to the Appeals
Council; however, she failed to submit an opinion to the ALJ from her hand surgeon.

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Plaintiff had her second carpal tunnel surgery on October 14, 2011, and the hearing
before the ALJ was held on November 16, 2011—just over a month after the surgery. Two
weeks after Plaintiff’s first surgery, she was released to work with no use of her right arm.
Seven weeks after the first surgery, Plaintiff was released to work with no restrictions or
limitations of her right arm. At the hearing, the ALJ noted that carpal tunnel “is a
condition amenable to treatment” and that “recovery is expected in the majority of those
cases.” [R. 78.] The ALJ held, “there is no basis to conclude that this recurrence of carpal
tunnel syndrome would not be resolved within twelve months after the surgery, as it did
after the surgery in the fall of 2009.” [R. 24-25.] Given that Plaintiff recovered and was
released to work without any restrictions seven weeks after her first carpal tunnel
surgery, the ALJ could reasonably conclude that recovery from the second surgery would
follow this same course, especially since Plaintiff did not introduce any evidence or
opinion to the contrary.
Plaintiff’s failure to obtain the opinion of her surgeon, which would have further
substantiated her claim, is evidence that “further supports the ALJ’s determination that
[Plaintiff] was not eligible for disability benefits.” Scott v. Sullivan, 898 F.2d 519, 523 (7th
Cir. 1990). Because Plaintiff was represented by counsel, the ALJ was entitled to assume
that she made her best case for benefits. See Elbert v. Barnhart, 335 F.Supp.2d 892, 960
(E.D. Wis. 2004) (“When the claimant is represented by counsel at the administrative
hearing, the ALJ is ordinarily entitled to rely on counsel to identify the issues that require
further development.”). The ALJ did not err in determining that, based on Plaintiff’s

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recovery after her first surgery, she would fully recover within twelve months of her
second surgery.
b. Credibility Determination.
Plaintiff argues that the ALJ’s credibility determination was patently erroneous.
She claims that the ALJ rejected her complaints of manipulative difficulties by simply
assuming the second surgery would be successful within twelve months. Courts give
substantial deference to an ALJ’s credibility determination. Getch v. Astrue, 539 F.3d 473,
483 (7th Cir. 2008). ALJs are in the best position to judge a claimant’s credibility and,
therefore, courts generally will not reverse an ALJ’s credibility findings unless they are
patently wrong. Shideler v. Astrue, 688 F.3d 306, 310-11 (7th Cir. 2012). However, ALJs
are required to adequately articulate their evaluation of the evidence, building an
accurate and logical bridge from the evidence to their conclusions. Id. at 310.
As to the issue of whether Plaintiff’s disability, if any, was reasonably expected to
last twelve months going forward, the ALJ adequately determined Plaintiff’s credibility.
She conducted a well-reasoned analysis and provided sufficient justification for her
decision to discount Plaintiff’s credibility. For example, the ALJ noted that Plaintiff’s
daily activities are not as limited as would be expected from her alleged disabling
symptoms. The ALJ also cited Plaintiff’s continued work activity after the alleged onset
date of her carpal tunnel syndrome. Furthermore, Plaintiff had not been compliant in
taking her prescribed medications, thus allowing the ALJ to justifiably discount her
allegations. Given the ALJ’s thorough analysis regarding Plaintiff’s credibility, the Court

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finds that the ALJ’s credibility determination for the twelve month period moving
forward was not patently wrong.
c. Closed Period.
Although the ALJ did not err in finding that Plaintiff’s disability, if any, was not
expected to last for twelve months, the ALJ must account for the period from when
Plaintiff’s carpal tunnel syndrome recurred to when she reasonably would have
recovered from the second surgery (i.e., the “closed period”). When dealing with a
closed-period case, an ALJ must “determine[] that a new applicant for disability benefits
was disabled for a finite period of time which started and stopped prior to the date of
[the] decision.” Pickett v. Bowen, 833 F.2d 288, 289 at n.1 (11th Cir. 1987). An ALJ must
determine “whether (or, more aptly, when) the payments of benefits should be
terminated.” Waters v. Barnhart, 276 F.3d 716, 719 (5th Cir. 2002).
Plaintiff’s first carpal tunnel surgery occurred in September 2009. In October 2009,
she was released to work by her doctor with no restrictions. However, in June 2010, she
began complaining of pain in her right hand—the hand that had undergone the surgery.
Throughout 2010 and most of 2011, Plaintiff complained of pain in her right hand, and
eventually had a second surgery on October 14, 2011. The ALJ failed to consider whether
the period from when Plaintiff first began complaining of pain after her first surgery to
the time when she underwent her second surgery qualified as a closed period of
disability. Therefore, on remand, the ALJ must determine whether Plaintiff was disabled
during this period. The ALJ must articulate her analysis of this closed period and a more
focused credibility determination of those months. Specifically, the ALJ must describe
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what limitations, if any, Plaintiff had as a result of her recurrence of carpal tunnel
syndrome during this period.
d. Considering Other Testimony.
Plaintiff contends that the ALJ’s failure to consider evidence from Plaintiff’s
mother is a ground for remand. ALJs must “consider evidence provided by other ‘nonmedical sources’ such as spouses, other relatives, friends, employers, and neighbors.”
SSR 06-03p; see also Cruse v. Comm’r of Social Security, 502 F.3d 532, 541 (6th Cir. 2007).
However, ALJs need not address a lay witness’s testimony when it is “essentially
redundant” of testimony already in the record. Carlson v. Shalala, 999 F.2d 180, 181 (7th
Cir. 1993).
Plaintiff testified to limitations in the use of her right arm, and the ALJ fully
addressed those limitations. Plaintiff’s mother’s testimony did not amount to “an entire
line of evidence” that the ALJ failed to consider, but rather “essentially corroborated”
Plaintiff’s testimony. Carlson, 999 F.2d at 181. Therefore, the ALJ was not required to
address Plaintiff’s mother’s testimony about her difficulties in using her right hand
because the testimony was duplicative. The ALJ’s failure to consider the mother’s
testimony is not a cause for remand.
2. Failure to Account for Migraines and Chronic Anemia in RFC Determination.
Lastly, Plaintiff argues that the ALJ failed to take into account her migraines and
chronic anemia.

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a. Migraine Headaches.
In April 2010, Plaintiff completed a Headache Questionnaire, indicating that she
had suffered from headaches since 1989. [R. 287.] Plaintiff also indicated that she
sometimes experienced headaches as often as three times per week, each lasting for two
days at a time. When experiencing a headache, Plaintiff noted, “I fill [sic] like sick I can’t
do nothing, my body aches fill [sic] weak.” The extent of the ALJ’s discussion of Plaintiff’s
headache impairment is as follows:
In terms of the claimant’s alleged migraine headaches, she complained of
headaches in March and May 2011. In December 2011, Dr. Ridel noted
that she continued to have headaches possibly once per week. She
reported that Imitrex works much better than her previous medication,
but she still had headaches for three to four hours. She was prescribed
Topamax at night for headache prophylaxis and to continue Imitrex as
needed for headache abortive therapy.
[R. 25.]
Plaintiff argues that the ALJ failed to explain how she concluded that Plaintiff’s
migraine impairment did not result in any limitations. The Court agrees that, although
the ALJ found Plaintiff’s migraine headaches severe at step two, she failed to discuss the
effects and potential limitations resulting therefrom.
Although ALJs are not required to address every piece of evidence in the record,
they are required to “confront the evidence that does not support [their] conclusion and
explain why that evidence was rejected.” Moore v. Colvin, 743 F.3d 1118, 1123 (7th Cir.
2014) (citing Indoranto v. Barnhart, 374 F.3d 470, 474 (7th Cir. 2004)). Here, the ALJ
specifically found Plaintiff’s migraines to be severe, but did not confront the evidence of
limitations resulting from the headaches and explain why that evidence was rejected. On
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remand, the ALJ must reconsider and articulate why Plaintiff has no limitations resulting
from migraines.
b. Chronic Anemia.
Plaintiff argues the ALJ erred by ignoring evidence of her chronic anemia. Plaintiff
testified that she suffered from chronic anemia.

[R. 417.]

As treatment, she was

prescribed iron pills. However, the pills made her sick, so the doctor administered iron
intravenously. At the hearing, Plaintiff claimed that she gets “tired” and has “spells” due
to her anemia. Although the record contains evidence of Plaintiff’s anemia, the ALJ did
not mention anemia in her decision. The ALJ must address Plaintiff’s anemia and
articulate why it does not result in, or contribute to, any restrictions or limitations.
Conclusion
The Commissioner’s decision denying Plaintiff’s claim for disability-insurance
benefits and supplemental-security-income benefits will be REVERSED, and her claim
will be REMANDED to the Commissioner. Consistent with this Entry, on remand, the
Commissioner shall (1) consider a closed period of disability, which must include a more
focused credibility determination for such period, specifically evaluating and articulating
Plaintiff’s limitations during the period and (2) address Plaintiff’s migraines and anemia,

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including articulating any limitations resulting from those conditions, and whether such
limitations, alone or in combination with her other impairments, are disabling.
DONE this date: 03/12/2015

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

Distribution to all ECF-registered counsel via ECF-generated e-mail.

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