PHILPOTT v. COLVIN

Filing 33

ENTRY REVIEWING THE COMMISSIONER'S DECISION - Plaintiff Valerie Philpott applied for disability insurance benefits from the Social Security Administration ("SSA") on July 1, 2010. After a series of administrative proceedings and app eals, including a hearing in July 2011 before Administrative Law Judge ("ALJ") James R. Norris, the ALJ determined that Ms. Philpott was not entitled to benefits. The Appeals Council subsequently vacated the ALJ's decision and rema nded the case for a new hearing and decision. In April 2012, the ALJ held another hearing, and in May 2012, the ALJ determined that Ms. Philpott was not entitled to benefits. This time, the Appeals Council denied Ms. Philpott's request for a review of the ALJ's decision, rendering that decision the final decision of the Defendant, Commissioner of the SSA ("the Commissioner"), for the purposes of judicial review. See 20 C.F.R. § 404.981. Ms. Philpott then filed this action under 42 U.S.C. § 405(g), requesting that the Court review the Commissioner's denial. The ALJ's denial of relief is AFFIRMED. Judgment shall issue accordingly. Signed by Judge Jane Magnus-Stinson on 8/26/2014.(MGG)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
VALERIE PHILPOTT,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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Case No. 1:13-cv-01708-JMS-DKL

ENTRY REVIEWING THE COMMISSIONER’S DECISION
Plaintiff Valerie Philpott applied for disability insurance benefits from the Social Security
Administration (“SSA”) on July 1, 2010. After a series of administrative proceedings and
appeals, including a hearing in July 2011 before Administrative Law Judge (“ALJ”) James R.
Norris, the ALJ determined that Ms. Philpott was not entitled to benefits. The Appeals Council
subsequently vacated the ALJ’s decision and remanded the case for a new hearing and decision.
In April 2012, the ALJ held another hearing, and in May 2012, the ALJ determined that Ms.
Philpott was not entitled to benefits. This time, the Appeals Council denied Ms. Philpott’s
request for a review of the ALJ’s decision, rendering that decision the final decision of the
Defendant, Commissioner of the SSA (“the Commissioner”), for the purposes of judicial review.
See 20 C.F.R. § 404.981. Ms. Philpott then filed this action under 42 U.S.C. § 405(g), requesting
that the Court review the Commissioner’s denial.
I.
STANDARD OF REVIEW
The Court’s role in this action is limited to ensuring that the ALJ applied the correct legal
standards and that substantial evidence exists for the ALJ’s decision. Barnett v. Barnhart, 381
F.3d 664, 668 (7th Cir. 2004) (citation omitted).

For the purpose of judicial review,

“[s]ubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Id. (citation omitted) (internal quotation marks omitted). Because the
ALJ “is in the best position to determine the credibility of witnesses,” Craft v. Astrue, 539 F.3d
668, 678 (7th Cir. 2008), this Court must afford the ALJ’s credibility determination
“considerable deference,” overturning it only if it is “patently wrong.” Prochaska v. Barnhart,
454 F.3d 731, 738 (7th Cir. 2006) (citations omitted).
If the ALJ committed no legal error and substantial evidence exists to support the ALJ’s
decision, the Court must affirm the denial of benefits. Otherwise the Court will remand the
matter back to the SSA for further consideration; only in rare cases can the Court actually order
an award of benefits. See Briscoe v. Barnhart, 425 F.3d 345, 355 (7th Cir. 2005).
To evaluate a disability claim, an ALJ must use the following five-step inquiry:
(1) [is] the claimant . . . currently employed, (2) [does] the claimant ha[ve] a
severe impairment, (3) [is] the claimant’s impairment . . . one that the
Commissioner considers conclusively disabling, (4) if the claimant does not have
a conclusively disabling impairment, . . . can she perform her past relevant work,
and (5) is the claimant . . . capable of performing any work in the national
economy[?]
Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001) (citations omitted). After Step Three,
but before Step Four, the ALJ must determine a claimant’s residual functional capacity (“RFC”),
which represents the claimant’s physical and mental abilities considering all of the claimant’s
impairments. The ALJ uses the RFC at Step Four to determine whether the claimant can
perform her own past relevant work and if not, at Step Five to determine whether the claimant
can perform other work. See 20 C.F.R. § 416.920(e).

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II.
BACKGROUND
Medical records show that Ms. Philpott has suffered from various physical and mental
impairments. The Court discusses this medical evidence in more detail below when necessary to
address the issue raised by Ms. Philpott on appeal.
Ms. Philpott applied for disability insurance benefits, alleging that she has been disabled
since January 1, 2004. [Filing No. 16-6 at 35.] She last met the insured status requirements of
the Social Security Act on December 31, 2004, and at that time was forty-nine years old. [Filing
No. 16-2 at 22.]
In his first decision, the ALJ determined at Step Four that Ms. Philpott was not entitled to
disability insurance benefits. [Filing No. 16-3 at 9-20.] The Appeals Council granted Ms.
Philpott’s request for review and remanded the case back to the ALJ for reconsideration. [Filing
No. 16-3 at 27.] On remand, the ALJ again determined that Ms. Philpott was not entitled to
disability insurance benefits.

[Filing No. 16-2 at 31.]

The Appeals Council denied Ms.

Philpott’s request for review of the ALJ’s second decision, making the ALJ’s second decision
the final decision of the Commissioner. [Filing No. 16-2 at 2.]
In his second decision, the ALJ found as follows:


At Step One, the ALJ found that Ms. Philpott did not engage in substantial gainful
activity1 “during the period from her alleged onset date of January 1, 2004, through her
date last insured of December 31, 2004.” [Filing No. 16-2 at 22.]



At Step Two, the ALJ found that Ms. Philpott suffered from the following medically
determinable impairments: osteoporosis; degenerative disc disease; lumbar strain; a
depressive disorder; an anxiety disorder; and polysubstance abuse of cannabis and
barbiturates. [Filing No. 16-2 at 22-23.] However, the ALJ determined that none of

1

Substantial gainful activity is defined as work activity that is both substantial (i.e., involves
significant physical or mental activities) and gainful (i.e., work that is usually done for pay or
profit, whether or not a profit is realized). 20 C.F.R. §§ 404.1572(a), 416.972(a).

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these impairments, individually or in combination, were severe. [Filing No. 16-2 at 2430.] Specifically regarding Ms. Philpott’s mental impairments, the ALJ assessed the four
paragraph B criteria—“[a]ctivities of daily living; social functioning; concentration,
persistence, or pace; and episodes of decompensation,” 20 C.F.R., Part 404, Subpart P,
App. 1—and determined that her mental impairments caused no more than “mild”
limitations in the first three functional areas and that she had no episodes of
decompensation. [See Filing No. 16-2 at 26-28.] The ALJ therefore determined that her
mental impairments were not severe. [Filing No. 16-2 at 28.]

Based on these findings, the ALJ did not need to reach the final three steps and concluded
that Ms. Philpott was not entitled to disability insurance benefits. [Filing No. 16-2 at 31.] Ms.
Philpott filed the instant appeal, challenging the ALJ’s second decision denying her disability
insurance benefits.
III.
DISCUSSION
Ms. Philpott raises one issue on appeal. She contends that the ALJ failed to consider
evidence that she suffered from a personality disorder during the relevant period—that is, the
period between her alleged onset date of January 1, 2004, and the date she was last insured,
December 31, 2004. [Filing No. 22 at 7-8.] Specifically, she argues that two doctors diagnosed
her, in 2009 and 2011 respectively, with a personality disorder, and because a “‘personality
disorder’ stems no later than from early adulthood,” these diagnoses “necessarily relate back to
the period on and before [Ms.] Philpott’s December 31, 2004 date last insured.” [Filing No. 22
at 7 (quoting American Psychiatric Association, Diagnostic and Statistical Manual of Mental
Disorders (4th ed. 2000)).] It was error for the ALJ to not consider her personality disorder, Ms.
Philpott maintains, because at Step Two the ALJ is required to “consider all of her impairments
in combination.” [Filing No. 22 at 7-8.]
The Commissioner responds by first acknowledging that the medical opinions that Ms.
Philpott had a personality disorder were in the record before the ALJ. [Filing No. 31 at 10.] The

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Commissioner also does not disagree with Ms. Philpott that the personality disorder diagnosis
relates back to the relevant time period. However, the Commissioner argues that the mere
diagnosis of a personality disorder “does not alone establish the severity of the impairment and
its resulting limitations.” [Filing No. 31 at 11.] The Commissioner points the Court to the
testimony of Dr. Olive, the psychological medical expert who testified at Ms. Philpott’s hearing.
[Filing No. 31 at 11.] According to the Commissioner, Dr. Olive’s testimony reveals that he
reviewed the relevant medical records, including the records containing the diagnoses of
personality disorder, but testified that Ms. Philpott’s mental impairments only caused mild
limitations in her functioning and thus were not severe. [Filing No. 31 at 11-12.] Moreover,
says the Commissioner, “[b]ecause the diagnosis of a condition does not indicate its severity,
adding [the personality disorder] to the mix of mental diagnoses in 2004 does not show that [Ms.
Philpott] had a severe mental impairment in the relevant time period.” [Filing No. 31 at 12.]
Ms. Philpott did not file a reply brief and thus did not respond to any of the Commissioner’s
arguments. [See Filing No. 32 at 1.]
At Step Two, the ALJ is required to determine “whether the claimant in fact has an
impairment or combination of impairments that is ‘severe.’” Castile v. Astrue, 617 F.3d 923,
926 (7th Cir. 2010) (quoting 20 C.F.R. § 404.1520(a)(4)(ii)). “A severe impairment is an
impairment or combination of impairments that ‘significantly limits [one’s] physical or mental
ability to do basic work activities.’” Id. (quoting 20 C.F.R. § 404.1520(c)); see 20 C.F.R. §
404.1521(a) (“An impairment or combination of impairments is not severe if it does not
significantly limit your physical or mental ability to do basic work activities.”).

It is the

claimant’s burden to prove “that [s]he was disabled before the expiration of h[er] insured . . . to

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be eligible for disability insurance benefits.” Shideler v. Astrue, 688 F.3d 306, 311 (7th Cir.
2012).
Ms. Philpott has not carried her burden of showing that the ALJ erred in concluding that
she did not suffer from a severe mental impairment. The ALJ determined that none of Ms.
Philpott’s mental impairments were severe, individually or in combination, because they did not
significantly limit Ms. Philpott’s ability to perform basic work activities. [See Filing No. 16-2 at
26-30.] Although the ALJ did not specifically discuss the personality disorder diagnoses, the
ALJ received expert testimony from Dr. Olive who reviewed the records containing these
diagnoses before testifying. [Filing No. 16-2 at 51-52.] The ALJ asked Dr. Olive what his
opinion was “with respect to any mental impairments shown,” and Dr. Olive responded, among
other things, that it was difficult “to say what the function limitations” would be and that he
“would probably characterize them as mild . . . based on [the] very limited data.” [Filing No. 162 at 52.] The ALJ relied on this testimony in concluding that Ms. Philpott’s mental impairments
were not severe. [See Filing No. 16-2 at 29-30 (finding that Dr. Olive’s testimony was entitled to
“great weight” and noting that “Dr. Olive testified that there was no evidence to show what the
claimant’s functional limitations were in 2004, but that [Dr. Olive] inferred they were no more
than mild because of the lack of 2004 documentation establishing limitation at that time”).]
Ms. Philpott’s attempt to undermine this conclusion by pointing out that the ALJ failed to
evaluate evidence that she suffered from a personality disorder during the relevant period is
unavailing. [Filing No. 22 at 7-8.] An impairment or combination of impairments are severe
when they “‘significantly limit[] [one’s] physical or mental ability to do basic work activities.’”
Castile, 617 F.3d at 926 (quoting 20 C.F.R. § 404.1520(c)). But the mere “diagnosis of an
impairment does not establish the severity of the impairment.” Flint v. Astrue, 2013 WL 30104,

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*5 (S.D. Ind. 2013) (citing Estok v. Apfel, 152 F.3d 636, 639-40 (7th Cir. 1998)); see Stanley v.
Astrue, 2012 WL 1158630, *8 n.8 (N.D. Ind. 2012) (“[T]he diagnosis of an impairment does not
alone establish its severity and its resulting limitations.”); see also Kasarsky v. Barnhart, 335
F.3d 539, 544 (7th Cir. 2003) (affirming the ALJ’s determination that the claimant’s depression
and dysthymia were non-severe impairments because there was evidence that the claimant “had
been able to work despite these problems” and no “doctor commented on any lingering effects”
of these impairments); Bunch v. Heckler, 778 F.2d 396, 401 (7th Cir. 1985) (affirming the ALJ’s
determination that the claimant’s mental impairments were non-severe because the evidence was
“sufficient to support a conclusion that her mental impairment did not significantly limit her
ability to do basic work activities”). Therefore, Ms. Philpott’s sole reliance on diagnoses to
assail the ALJ’s step-two conclusion is insufficient.
Simply put, impairments are classified as severe or non-severe based on the limitations
they impose on the claimant’s ability to perform basic work activities.

See 20 C.F.R. §

404.1520(c); 20 C.F.R. § 404.1521(a). Accordingly, Ms. Philpott cannot undermine the ALJ’s
step-two determination without pointing to evidence of resulting limitations—that is, effects of
her personality disorder—that the ALJ failed to consider. Moreover, Ms. Philpott does not point
the Court to any legal authority standing for the proposition that an unconsidered and
retroactively applied diagnosis alone constitutes reversible error at Step Two. For these reasons,
the Court cannot conclude that the ALJ erred by concluding at Step Two that Ms. Philpott’s
impairments were non-severe.
IV.
CONCLUSION
Accordingly, the ALJ’s denial of relief is AFFIRMED.
accordingly.

August 26, 2014
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Judgment shall issue

_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

Distribution via ECF only to all counsel of record

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